Jesse M. and Lura L. Lewis - Page 53

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          the trial, and that their agreements had not been disclosed to              
          the Tax Court or the other test case petitioners.  Respondent               
          further explained that the settlement agreements with those two             
          test case petitioners provided that they could proceed to trial             
          but would receive the benefit of the better of their pretrial               
          settlement agreement or the results of the trial.                           
               All the foregoing demonstrates that, when petitioners                  
          through their attorneys agreed to settle in March 1993,                     
          petitioners and their attorneys knew of the predicate facts that            
          later gave rise to the holding of fraud on the Court by the Court           
          of Appeals for the Ninth Circuit.  This knowledge of petitioners            
          and their attorneys precludes a claim of fraud that would vitiate           
          the settlement stipulation from which petitioners, through those            
          same attorneys, now ask to be relieved.                                     
               In view of the overwhelming evidence of actual knowledge, we           
          are puzzled by petitioners’ assertion that, at the time they                
          settled, they thought no fraud on the Court existed.  Perhaps               
          their claimed unawareness means that they, or their attorneys,              
          were unaware of the legal consequences of fraud on the Court.  We           
          would not be persuaded by an assertion to that effect.  Rule                
          60(b) of the Federal Rules of Civil Procedure explicitly                    
          discusses “An action * * * to set aside a judgment for fraud upon           
          the court.”  Moreover, Messrs. Izen and Sticht, counsel for other           
          Kersting petitioners, explicitly alleged “fraud on the court” in            






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