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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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