Estate of Algerine Allen Smith, Deceased, James Allen Smith, Executor - Page 44

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                    In addition, the Tax Court’s power to correct                     
               clerical errors does not conflict with the statutory                   
               framework establishing finality for that court’s                       
               decisions.  The Michaelses point out that the substance                
               of a decision becomes final and unappealable once the                  
               statutory period for filing an appeal has expired.  But                
               the same is largely true of district court decisions,                  
               subject to such extraordinary remedies as those                        
               contained in Rule 60(b), and yet the expiration of the                 
               time for filing a notice of appeal does not prevent a                  
               district court from acting under Rule 60(a) to correct                 
               a clerical error in its judgment.  See, e.g., American                 
               Fed’n of Grain Millers Local 24 v. Cargill, Inc.,                      
               15 F.3d 726 (7th Cir. 1994).  The Michaelses’ arguments                
               that the Tax Court should be prevented from taking the                 
               same action because it is a creation of Article I                      
               rather than Article III of the Constitution, or because                
               it is a court of limited jurisdiction, are not                         
               persuasive.  [Id. at 497; fn. ref. omitted.]                           
               I am not unmindful of this Court’s opinions in Taub v.                 
          Commissioner, 64 T.C. 741 (1975), affd. without published opinion           
          538 F.2d 314 (2d Cir. 1976), and Hazim v. Commissioner, 82 T.C.             
          471 (1984).  In Taub v. Commissioner, supra at 751, the Court               
          stated that “We find nothing in our new status * * *  [under                
          Article I] which expands the narrow exception to the general rule           
          of finality of decisions carved out” in the case of fraud on the            
          Court that would give us jurisdiction to vacate a final decision.           
          In Hazim v. Commissioner, supra at 475, the Court repeated this             
          statement in concluding that this Court’s jurisdiction to set               
          aside a final decision is limited.  The referenced statement in             
          these cases conflicts directly with the Supreme Court’s later               
          finding in Freytag v. Commissioner, 501 U.S. 865 (1991), that               
          this Court’s status in Article I means that this Court is no                






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