- 49 - Participants filed their motion approximately 20 months after the decision became final. As we have noted, participants argue that their motion to vacate should be granted because the Court did not have jurisdiction over the underlying case and also because there was a fraud upon the Court. A party seeking to vacate a final decision bears the burden of proof. Abeles v. Commissioner, supra at 106. In this case, participants also allege that the FPAA's were not timely issued since under the terms of the Permanent Injunction and subsequent Modification Winer was not authorized to execute consents extending the period of limitations because his authority as TMP was restricted to the performance of "administrative services". However, we decline to address participants' allegations that the consents executed by Winer, as TMP, were ineffective to extend the time for respondent to issue an FPAA because allegations concerning the period of limitations constitute an affirmative defense, not a plea to the jurisdiction of this Court. Rule 39; Genesis Oil & Gas, Ltd. v. Commissioner, 93 T.C. 562 (1989). The timeliness of the FPAA is not relevant to the jurisdiction of this Court under section 6226, concerning judicial review of final partnership administrative actions. Genesis Oil & Gas, Ltd. v. Commissioner, supra. For the purpose of deciding participants' motion, our focus is on the validity of the petition and not upon the timeliness of the FPAA's.Page: Previous 39 40 41 42 43 44 45 46 47 48 49 50 51 52 53 54 55 56 57 58 Next
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