George C. Scrimshaw and Erna C. Scrimshaw - Page 11

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         been reached even in the absence of the alleged fraud upon the               
         Court). Thus, petitioner must demonstrate, not only that her                 
         purported signature was intended to mislead the Court but more               
         importantly that it materially affected the outcome of the case.             
         Drobny v. Commissioner, supra at 678.                                        
              Although the parties agree that petitioner did not sign the             
         stipulated decision, petitioner has failed to introduce any evidence         
         upon the issue of whether this had any material effect upon the              
         stipulated decision.  Absent the demonstration that the purported            
         deception created an improper influence that affected the Court's            
         decision in this case, there can be no "fraud upon the Court".  See          
         Drobny v. Commissioner, supra; Chao v. Commissioner, supra.                  
              Petitioner relies on Toscano v. Commissioner, supra, to support         
         her fraud upon the Court claim.  However, the facts of Toscano are           
         distinguishable from those herein.  The relevant facts in Toscano            
         are as follows: Josephine Toscano (Josephine Zelasko) moved to               
         vacate a stipulated decision of this Court 15 years after entry upon         
         the grounds that she was not and had not been the wife of Mr.                
         Toscano.  Mr. Toscano was not married when he filed what purported           
         to be a joint return, having either forged the signature of Ms.              
         Zelasko as his spouse or coerced her to sign the joint return                
         against her will.  Mr. Toscano allegedly perpetrated three frauds.           
         First, he allegedly defrauded the Commissioner by filing a                   
         fraudulent joint income tax return claiming he owed less tax than            
         was due by law.  Second, he allegedly defrauded Ms. Zelasko by               




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