Estate of Algerine Allen Smith, Deceased, James Allen Smith, Executor - Page 22

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               3.  Finality                                                           
               A prerequisite to filing a motion pursuant to section                  
          6512(b)(2) is the finality of the overpayment decision.  We                 
          cannot modify our final decision that there was an overpayment of           
          $238,847.24 solely because of respondent’s allegation that he               
          failed to include all the underpayment interest in his                      
          calculation of the overpayment amount.                                      
               We recently discussed the standards for vacating a final               
          decision in Cinema ‘84 v. Commissioner, 122 T.C. 264 (2004).  In            
          that opinion, we noted that as a general rule the finality of a             
          decision is absolute.  See Abatti v. Commissioner, 86 T.C. 1319,            
          1323 (1986), affd. 859 F.2d 115 (9th Cir. 1988).  We noted that             
          we have jurisdiction to set aside a decision where there is a               
          fraud on the court.  See Toscano v. Commissioner, 441 F.2d 930              
          (9th Cir. 1971); Kenner v. Commissioner, 387 F.2d 689 (7th Cir.             
          1968); Taub v. Commissioner, 64 T.C. 741, 751 (1975), affd.                 
          without published opinion 538 F.2d 314 (2d Cir. 1976); see also             
          Senate Realty Corp. v. Commissioner, 511 F.2d 929 (2d Cir.                  
          1975)).  We also noted that we vacated a final decision where a             


               17(...continued)                                                       
               �6402(a) application of that overpayment as a credit                   
               envisioned by �6512(b)(1), but militate strongly                       
               against an interpretation that a prior �6402(a)                        
               application of the overpayment divests the Tax Court of                
               jurisdiction to perform its �6512(b)(1) obligation to                  
               determine the amount of the overpayment. * * * [Belloff                
               v. Commissioner, 996 F.2d 607, 613 (2d Cir. 1993),                     
               affg. T.C. Memo. 1991-350.]                                            




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