Estate of Algerine Allen Smith, Deceased, James Allen Smith, Executor - Page 37

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          could in certain cases relieve a party of a judgment                        
          notwithstanding its finality under the statute.  E.g., Kenner v.            
          Commissioner, 387 F.2d 689 (7th Cir. 1968) (relief may be allowed           
          in the case of fraud on the court); Reo Motors, Inc. v.                     
          Commissioner, 219 F.2d 610 (6th Cir. 1955) (relief may be allowed           
          in the case of a mutual mistake of fact);4 La Floridienne J.                
          Buttgenbach & Co. v. Commissioner, 63 F.2d 630 (5th Cir. 1933)              
          (relief may be allowed in the case of a joint stipulation to                
          vacate).  As to the Court of Appeals for the Fifth Circuit, the             
          circuit to which an appeal of this case lies, that court had                
          ruled that a final decision resulting from a “redetermination               
          based on a stipulation may be vacated [by a predecessor to this             
          Court] at the instance of the parties to the stipulation for good           
          cause shown.”  La Floridienne J. Buttgenbach & Co. v.                       
          Commissioner, supra at 631.  The court stated:                              
                    Counsel for the Commissioner here stands to the                   
               petition [to vacate the decision] if it can be lawfully                
               granted, but as in duty bound contends that the Board                  
               after four years cannot vacate its order, especially                   
               since Revenue Act of 1926, � 1005 (26 USCA � 1228),                    
               expressly declares:  “The decision of the board shall                  
               become final--(1) Upon the expiration of the time                      
               allowed for filing a petition for review, if no such                   
               petition has been duly filed within such time.  * * *”                 
               We appreciate the necessity of prompt decisions                        
               touching taxes, and that they shall stand firm.  The                   

               4 In Harbold v. Commissioner, 51 F.3d 618, 622 (6th Cir.               
          1995), the Court of Appeals for the Sixth Circuit stated that it            
          would no longer follow Reo Motors, Inc. v. Commissioner, 219 F.2d           
          610 (6th Cir. 1955), in that, it concluded, that case had been              
          overruled by Lasky v. Commissioner, 352 U.S. 1027 (1957).                   





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