Jerry and Patricia A. Dixon, et al - Page 199




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          V.   Fraud on the Court                                                     
               Although rule 60(b) of the Federal Rules of Civil Procedure            
          provides a list of the grounds upon which a court may relieve a             
          party or a party's legal representative from a final judgment,              
          the rule also includes a so-called saving clause which states:              
          "This rule does not limit the power of a court * * * to set aside           
          a judgment for fraud upon the court."  It is well settled that              
          the Tax Court may reopen and set aside a decision on the basis of           
          fraud on the Court.  See Toscano v. Commissioner, 441 F.2d 930              
          (9th Cir. 1971) (fraud on the court properly raised where the               
          taxpayer asserted that the Court's decision sustaining the                  
          Commissioner's determination of joint deficiencies was based on             
          tax returns on which the taxpayer's signature was either forged             
          or made under duress), vacating 52 T.C. 295 (1969).                         
          A.   Case Law Survey                                                        
               Hazel-Atlas Glass Co. v. Hartford-Empire Co., 322 U.S. 238             
          (1944), overruled on other grounds Standard Oil v. United                   
          States, 429 U.S. 17, 18 (1976), is the leading case considering             
          fraud on the court.  In Hazel-Atlas Glass, certain officials and            
          attorneys representing Hartford Empire Co. (Hartford)                       
          fraudulently prepared and published an article in a trade                   
          publication that Hartford subsequently used to support its                  
          pending application for a patent before the Patent Office.  After           
          obtaining the patent, Hartford sued Hazel-Atlas Glass Co. (Hazel)           
          for infringement in a District Court.  The District Court                   
          dismissed the case on the ground that no infringement had been              

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