- 63 -
influence the Court in its decision has had such an
effect on the Court. * * *
The burden is on the moving party to show such fraud by clear and
convincing evidence. Drobny v. Commissioner, 113 F.3d 670 (7th
Cir. 1997), affg. T.C. Memo. 1995-209; Kraasch v. Commissioner,
supra at 626.
In the instant case, participants' allegation of fraud upon
the Court is based on evidence that respondent's Jacksonville
District Counsel Office signed and filed the answer in the
Davenport Recycling case, acknowledging Winer as TMP, although
the same office had initiated the section 7408 injunction
proceeding which resulted in Winer's being ordered to resign as
TMP by the District Court. According to participants, it then
follows that Hamilton and Hayes, of respondent's Boston District
Counsel Office, knew that Winer had been enjoined from acting as
TMP of Davenport yet continued to deal with him as such in order
to achieve a favorable outcome in the Davenport Recycling case
for respondent. Therefore, according to participants, the
conclusion of this case by a stipulated settlement between
respondent and Winer, acting as TMP of Davenport, was a fraud on
the Court.
In the instant case, participants in alleging that Hamilton
and Hayes committed fraud on the Court ignore the fact that,
through his actions, Winer himself advised the Court that he was
the TMP of Davenport. For example, Winer signed Forms 2848
Page: Previous 46 47 48 49 50 51 52 53 54 55 56 57 58 59 60 61 62 63 64 65 NextLast modified: May 25, 2011