Chih H. and Chu F. Chu - Page 4




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               Petitioners’ motion was filed on February 12, 2001, almost             
          two years after the Court entered the decision in this case and             
          20 months after that decision became final.  Once a decision                
          becomes final, the Court may vacate it only in narrowly circum-             
          scribed situations, such as where the decision was obtained                 
          through fraud on the Court, see Abatti v. Commissioner, 859 F.2d            
          115, 118 (9th Cir. 1988), affg. 86 T.C. 1319 (1986), or where the           
          decision is void or a legal nullity for lack of this Court’s                
          jurisdiction over either the subject matter or the party, see               
          Billingsley v. Commissioner, 868 F.2d 1081, 1084-1085 (9th Cir.             
          1989); Abeles v. Commissioner, 90 T.C. 103, 105-106 (1988).3                
               The Court of Appeals for the Ninth Circuit has defined the             
          phrase “fraud on the court” to be “‘an unconscionable plan or               
          scheme which is designed to improperly influence the court in its           
          decision.’”  Toscano v. Commissioner, 441 F.2d 930, 934 (9th Cir.           
          1971)(quoting England v. Doyle, 281 F.2d 304, 309 (9th Cir.                 
          1960)), vacating 52 T.C. 295 (1969); see Abatti v. Commissioner,            


               3The Court of Appeals for the Fifth Circuit has indicated              
          that in extraordinary circumstances this Court has the power in             
          its discretion to vacate and correct a final decision where it is           
          based on a mutual mistake of fact.  See La Floridienne J.                   
          Buttgenbach & Co. v. Commissioner, 63 F.2d 630 (5th Cir. 1933).             
          The Court of Appeals for the Ninth Circuit, to which an appeal in           
          this case would normally lie, does not recognize this Court’s               
          power to vacate and correct a final decision where it is based on           
          a mutual mistake of fact.  See Abatti v. Commissioner, 859 F.2d             
          115, 118 (9th Cir. 1988), affg. 86 T.C. 1319 (1986); Lasky v.               
          Commissioner, 235 F.2d 97, 99-100 (9th Cir. 1956), affd. per                
          curiam 352 U.S. 1027 (1957).                                                





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