- 22 - 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.]Page: Previous 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 Next
Last modified: May 25, 2011