Transpac Drilling Venture 1982-08, Albert D. & Luella L. Eshelman, A Partner Other Than The Tax Matters Partner - Page 8

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          Cir. 1989); Abeles v. Commissioner, 90 T.C. 103, 105-106 (1988);            
          Brannon's of Shawnee, Inc. v. Commissioner, 71 T.C. 108, 111-112            
          (1978), or if the decision was obtained through fraud upon the              
          Court; see Abatti v. Commissioner, 859 F.2d 115 (9th Cir. 1988),            
          affg. 86 T.C. 1319 (1986); Senate Realty Corp. v. Commissioner,             
          511 F.2d 929, 931 (2d Cir. 1975); Stickler v. Commissioner, 464             
          F.2d 368, 370 (3d Cir. 1972); Casey v. Commissioner, T.C. Memo.             
          1992-672.  In addition, some courts have indicated that the Tax             
          Court has the power in its discretion, in extraordinary                     
          circumstances, to vacate and correct a final decision where it is           
          based upon a mutual mistake of fact, see La Floridienne J.                  
          Buttgenbach & Co. v. Commissioner, 63 F.2d 630 (5th Cir. 1933).4            
          On the other hand, the Court of Appeals for the Eighth Circuit              
          has adopted the more restrictive view that the Tax Court lacks              
          general equitable powers, and, therefore, that this Court lacks             
          the authority to vacate or revise an otherwise final decision.              
          See Webbe v. Commissioner, 902 F.2d 688, 689 (8th Cir. 1990),               
          affg. T.C. Memo. 1987-426; see also Heim v. Commissioner, supra             
          at 249 (Lay, C.J., concurring).                                             


          4 Although the U.S. Court of Appeals for the Sixth Circuit                  
          cited mutual mistake of fact as a grounds for vacating a final              
          decision of this Court in Reo Motors, Inc. v. Commissioner, 219             
          F.2d 610 (6th Cir. 1955), the Sixth Circuit recently concluded              
          that Reo Motors, Inc. was effectively overruled by virtue of the            
          Supreme Court's affirmance of Lasky v. Commissioner, 235 F.2d 97            
          (9th Cir. 1956), affd. per curiam 352 U.S. 1027 (1957).  See                
          Harbold v. Commissioner, 51 F.3d 618, 621-622 (6th Cir. 1995).              




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