- 29 -
does not establish that such argument was omitted for reasons
amounting to fraud on the Court.12
There is no suggestion of fraud on the Court in Mr. Young's
actions. Mr. Young, who testified at the hearing, admitted that
he had never met Mr. and Mrs. Dornbrock or had any direct contact
with them, nor did he have any direct contact with any of the Pop
Phonomasters investors, except for Mr. Pasternak, and that it was
understood that this was the manner in which the Pop Phonomasters
litigation would be handled. If Mr. or Mrs. Dornbrock were not
kept sufficiently informed about the progress of this case, that
was a result of either their own inattentiveness or an
inadvertent failure of communication on the part of Mr.
Pasternak. However, as this Court stated in DiSanza v.
Commissioner, T.C. Memo. 1993-142, affd. without published
opinion 9 F.3d 1538 (2d Cir. 1993):
even if we were to conclude that * * * [counsel] was
negligent in this matter [his representation of the
Dornbrocks], such conduct would not constitute fraud on the
Court. See Kenner v. Commissioner, 387 F.2d 689, 692 (7th
Cir. 1968), affg. an unreported order of this Court; see
also Dominquez v. United States, 583 F.2d 615, 617 (2d Cir.
1978).
Moreover, even "Gross neglect on the part of a taxpayer's counsel
does not constitute 'fraud on the Court'". Gazdak v.
12
Mrs. Dornbrock's claim of innocent spouse is undermined by
the fact that she paid in full, without question, the first bill
she received from respondent after the decision was entered with
respect to the 1978 tax year.
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