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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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