Larry C. Gamsby - Page 6

                                        - 6 -                                         

          that this Court may vacate a final decision if the decision is              
          shown to be void, or a legal nullity, for lack of jurisdiction              
          over either the subject matter or the party, see Billingsley v.             
          Commissioner, 868 F.2d 1081, 1084-1085 (9th Cir. 1989); Abeles v.           
          Commissioner, 90 T.C. 103, 105-106 (1988); Brannon's of Shawnee,            
          Inc. v. Commissioner, 69 T.C. 999, 1002 (1978), or if the                   
          decision was obtained through fraud on the Court.  See Abatti v.            
          Commissioner, supra; Senate Realty Corp. v. Commissioner, 511               
          F.2d 929, 931 n.1 (2d Cir. 1975); Stickler v. Commissioner, 464             
          F.2d 368, 370 (3d Cir. 1972); Casey v. Commissioner, T.C. Memo.             
          1992-672.  In addition, the Court of Appeals for the Fifth                  
          Circuit has 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 on a mutual mistake of fact.             
          See La Floridienne J. Buttgenbach & Co. v. Commissioner, 63 F.2d            
          630 (5th Cir. 1933.  But cf. Harbold v. Commissioner, 51 F.3d               
          618, 621-622 (6th Cir. 1995).                                               
               Petitioner contends that the decision in this case should be           
          vacated due to fraud on the Court.  In Abatti v. Commissioner,              
          supra at 118-119, the Court of Appeals for the Ninth Circuit                
          defined the phrase "fraud on the court" as "an unconscionable               
          plan or scheme which is designed to improperly influence the                
          court in its decision" or a fraudulent act that "prevents the               
          opposing party from fully and fairly presenting his case".  See             





Page:  Previous  1  2  3  4  5  6  7  8  9  Next

Last modified: May 25, 2011