- 7 - 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, supraPage: Previous 1 2 3 4 5 6 7 8 9 10 Next
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