Peter M. Schaeffer - Page 7

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               without more, should not be a fraud upon the court * *                 
               *" Toscano v. Commissioner, 441 F.2d at 933, quoting 7                 
               J. Moore, Federal Practice, par. 60.33 (2d ed. 1970).                  
               To prove such fraud, the petitioners must show that an                 
               intentional plan of deception designed to improperly                   
               influence the Court in its decision has had such an                    
               effect on the Court. * * * [Citations omitted.]                        
          In Kenner v. Commissioner, 387 F.2d 689, 690-691 (7th Cir. 1968),           
          the Court of Appeals for the Seventh Circuit stated that the                
          finality of a Tax Court decision "precludes any subsequent                  
          reconsideration by the Tax Court, at least on such grounds as               
          mistake, newly discovered evidence, and the like."  The Court of            
          Appeals also emphasized that the burden of proof rests squarely             
          with the party seeking to set aside the final decision, and                 
          stated that this burden could not be met simply by making a broad           
          assertion that the Tax Court decision was tainted with fraud.               
          Rather, "there is a heavy burden * * * upon the one who seeks to            
          impeach an order or decree of a court", who must come forward               
          with "specific facts which will pretty plainly impugn the                   
          official record."  Id.; see also Kraasch v. Commissioner, 70 T.C.           
          623, 626 (1978); Spielberger v. Commissioner, T.C. Memo.                    
          1989-444.                                                                   
               Defining the term "fraud upon the court," in Kenner the                
          Court stated that the alleged improper conduct must rise to the             
          level of an "unconscionable plan or scheme * * * designed to                
          improperly influence the court in its decision" before it may be            
          deemed a "fraud upon the court."  Kenner v. Commissioner, supra             






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