- 43 -
Woods v. Commissioner, 92 T.C. 776, 784-785 (1989); cf. Buchine
v. Commissioner, supra at 178.
This Court’s application of rule 60(b) is not unprecedented.
In Brannon’s of Shawnee, Inc. v. Commissioner, 69 T.C. 999,
1000-1002 (1978), for example, this Court applied subparagraph
(4) of rule 60(b) to conclude that this Court was empowered to
vacate a final decision that was entered in a case for which this
Court lacked jurisdiction to decide. I also note this Court’s
authority to apply paragraph (a) of rule 60. In Michaels v.
Commissioner, 144 F.3d 495 (7th Cir. 1998), affg. T.C. Memo.
1995-294, the Court of Appeals for the Seventh Circuit held that
this Court may at any time rely upon paragraph (a) to vacate a
final decision to correct a clerical error. The taxpayers in
that case had argued that the fact that their decision was
“final” meant that this Court was not at liberty to alter it. In
rejecting this argument, the Court of Appeals for the Seventh
Circuit stated:
The Michaelses cannot credibly argue that the
error in the 1995 decision was anything other than a
clerical mistake. They are forced, therefore, to argue
that the Tax Court in this case simply should not be
allowed to exercise a power analogous to that afforded
the district courts by Rule 60(a). In attempting to do
so, the Michaelses make several points that would be
relevant only if Rule 60(b) were at issue, such as that
the Commissioner has not shown that the failure to
correct the mistake earlier was the result of
“excusable neglect” or that his motion to correct it
was made “within a reasonable time.” These arguments,
of course, are unavailing, since Rule 60(a) requires no
such showing.
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