- 267 - opportunity to be heard before the appropriate tribunal, but also an orderly presentation of evidence and a rational application of the law thereto". Traynor, "The Riddle of Harmless Error", at 80 (1970). Having placed the burden of proof by clear and convincing evidence on respondent, we are left with the definite and firm conviction that the Government misconduct had no effect on the decisions in the test cases whose petitioners were represented by Mr. Izen. IV. Fraud, Misrepresentation, and Misconduct Mr. Izen contends that the Court should not reinstate its decisions in Dixon II on the ground that the Government misconduct in the trial of the test cases amounted to fraud, misrepresentation, or misconduct under rule 60(b)(3) of the Federal Rules of Civil Procedure. Mr. Izen's contention is akin to a motion for reconsideration of the Court's Dixon II opinion under Rule 161 or a motion to vacate a decision under Rule 162. Relief under either of these Rules may be granted in the Court's discretion to prevent injustice. See Chao v. Commissioner, 92 T.C. 1141, 1144-1145 (1989); see also Adams v. Commissioner, 85 T.C. at 375. Rule 60(b)(3) of the Federal Rules of Civil Procedure states in pertinent part: On motion and upon such terms as are just, the court may relieve a party or a party's legal representative from a final judgment, order, or proceeding for the following reasons: * * * (3) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party * * *.Page: Previous 257 258 259 260 261 262 263 264 265 266 267 268 269 270 271 272 273 274 275 276 Next
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