Davenport Recycling Associates, Sam Winer, Tax Matters Partner - Page 62

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          not the Court, and does not affect our jurisdiction.  See sec.              
          6230(f).                                                                    
          Fraud on the Court                                                          
               In the alternative, participants argue that respondent's               
          attorneys, Hamilton and Hayes, committed fraud on the Court                 
          because they continued to deal with Winer as TMP of Davenport               
          despite their knowledge of the contents of the Permanent                    
          Injunction and Modification.  In their briefs and during the                
          evidentiary hearing on this matter, participants made very                  
          specific and accusatory statements concerning the actions and               
          behavior of Hamilton and Hayes in this case.  However, after a              
          full evidentiary hearing and full briefing of this issue by both            
          parties, we find that there is no evidence that Hamilton or Hayes           
          committed any fraud on the Court.  We further specifically find             
          that Hamilton and Hayes had no knowledge of the terms or outcome            
          of the section 7408 injunction proceeding against Winer before              
          the decision in this case was entered.                                      
               We defined "fraud on the court" in Abatti v. Commissioner,             
          86 T.C. at 1325, as follows:                                                
               Fraud on the court is "only that species of fraud which                
               does, or attempts to, defile the court itself, or is a                 
               fraud perpetrated by officers of the court so that the                 
               judicial machinery can not perform in the usual manner                 
               its impartial task of adjud[g]ing cases that are                       
               presented for adjudication.  Fraud, inter partes,                      
               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                   




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