- 14 -
(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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