- 10 -
1085 (9th Cir. 1989); Abeles v. Commissioner, 90 T.C. 103, 105-
106 (1988).3
The Court of Appeals for the Ninth Circuit (Ninth Circuit)
has defined the phrase "fraud on the court" to be "'an unconscio-
nable plan or scheme which is designed to improperly influence
the court in its decision.'" Toscano v. Commissioner, 441 F.2d
930, 934 (9th Cir. 1971) (quoting England v. Doyle, 281 F.2d 304,
309 (9th Cir. 1960)); see Abatti v. Commissioner, supra at 118.
In order to prove fraud on the Court, petitioners must
establish that "an intentional plan of deception designed to
improperly influence the Court in its decision has had such an
effect on the Court." Abatti v. Commissioner, 86 T.C. at 1325;
see Drobny v. Commissioner, 113 F.3d 670, 677-678 (7th Cir.
1997), affg. T.C. Memo. 1995-209, and cases cited therein.
Petitioners make, inter alia, the following contentions in
an affidavit attached to and incorporated as part of petitioners'
motion:
The * * * [United States] filed a motion for summary
judgment in the District Court Case. The * * * [United
States] contended that the funds used to purchase Modoc
Property [sic] were properly attributed to Petitioners,
not to * * * EOCC. According to the * * * [United
3 The Court of Appeals for the Fifth Circuit has indicated that
in extraordinary circumstances this Court has the power in its
discretion to vacate and correct a final decision where it is
based on a mutual mistake of fact. See La Floridienne J.
Buttgenbach & Co. v. Commissioner, 63 F.2d 630 (5th Cir. 1933).
But see Harbold v. Commissioner, 51 F.3d 618, 621-622 (6th Cir.
1995).
Page: Previous 1 2 3 4 5 6 7 8 9 10 11 12 13 Next
Last modified: May 25, 2011