Trans World Travel - Page 14




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          (1978); or if the decision was obtained through fraud on the                
          Court, see Abatti v. Commissioner, 859 F.2d 115 (9th Cir. 1988),            
          affg. 86 T.C. 1319 (1986); Senate Realty Corp. v. Commissioner,             
          511 F.2d 929, 931 (2d Cir. 1975); Stickler v. Commissioner, 464             
          F.2d 368, 370 (3d Cir. 1972); Casey v. Commissioner, T.C. Memo.             
          1992-672.  In addition, some courts have indicated that the Tax             
          Court has the power in its discretion, in extraordinary                     
          circumstances, to vacate and correct a final decision where it is           
          based on a mutual mistake of fact.  See LaFloridienne J.                    
          Buttgenbach & Co. v. Commissioner, 63 F.2d 630 (5th Cir. 1933).7            
               In the present case, petitioner contends that the decision             
          entered on March 26, 1997, is a legal nullity and is therefore              
          not final, because the Tax Court lacked jurisdiction over                   
          petitioner.  In support of its contention, petitioner cites and             
          relies on Billingsley v. Commissioner, supra; Abeles v.                     
          Commissioner, supra; and Brannon's of Shawnee, Inc. v.                      
          Commissioner, supra.  Notably, petitioner does not contend that             
          fraud on the court was committed and provides an exception to the           
          general rule of finality.                                                   


          7 Although the U.S. Court of Appeals for the Sixth Circuit                  
          cited mutual mistake of fact as a grounds for vacating a final              
          decision of this Court in Reo Motors, Inc. v. Commissioner, 219             
          F.2d 610 (6th Cir. 1955), that Court of Appeals more recently               
          concluded that Reo Motors, Inc. was effectively overruled by                
          virtue of the Supreme Court's affirmance of Lasky v.                        
          Commissioner, 235 F.2d 97 (9th Cir. 1956), affd. per curiam 352             
          U.S. 1027 (1957).  See Harbold v. Commissioner, 51 F.3d 618, 621-           
          622 (6th Cir. 1995).                                                        





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