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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.
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