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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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