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if we are satisfied that petitioners have alleged sufficient
facts to support further inquiry into the matter.
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 Toscano v. Commissioner, supra at 933;
Kenner v. Commissioner, supra at 691. A party moving to vacate a
final decision of the Tax Court bears a heavy burden of
particularized pleading and proof. Drobny v. Commissioner, 113
F.3d 670, ___ (7th Cir. 1997), affg. T.C. Memo. 1995-209, and
cases cited therein; Abatti v. Commissioner, supra at 118.
Petitioners' allegations of fraud upon the Court are
summarized in petitioners' Memorandum of Points and Authorities
in support of petitioner's Motion for Reconsideration as follows:
1. Respondent committed fraud upon the United
States Tax Court by a series of actions as set out in
paragraphs 1-4 herein, beginning by conducting an
illegal search and seizure of the promoter Henry
Kersting's offices and records in January 19811; then
she utilized the seized materials to, without rational
basis, issue statutory notices of deficiency to
fraudulently toll the statute of limitations respecting
the tax liabilities of Petitioners and many other
taxpayers similarly situated.
2. Respondent and her Office of Chief Counsel
then deliberately concealed their actions from
Petitioners and other taxpayers; they then forced the
many taxpayers so affected into settlement or trial
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