William A. Stewart - Page 6

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          discretion of the Court.  See Rule 162; Heim v. Commissioner, 872           
          F.2d 245, 246 (8th Cir. 1989), affg. T.C. Memo. 1987-1; Brookes             
          v. Commissioner, 108 T.C. 1, 7 (1997).                                      
          II.  Jurisdiction                                                           
               This Court can proceed in a case only if it has                        
          jurisdiction, and either party, or the Court sua sponte, can                
          question jurisdiction at any time.  Estate of Young v.                      
          Commissioner, 81 T.C. 879, 880-881 (1983).  We have jurisdiction            
          to determine whether we have jurisdiction.  Brannon’s of Shawnee,           
          Inc. v. Commissioner, 69 T.C. 999, 1002 (1978).  As we stated in            
          Wheeler’s Peachtree Pharmacy, Inc. v. Commissioner, 35 T.C. 177,            
          179 (1960):  “[Q]uestions of jurisdiction are fundamental and               
          whenever it appears that this Court may not have jurisdiction to            
          entertain the proceeding that question must be decided.”                    
               In order for us to consider the substantive merits of                  
          petitioner’s motion for leave, we must still have jurisdiction.             
          Except for very limited exceptions, none of which applies here,3            

               3 After a decision becomes final, the Court may grant a                
          motion for leave to consider:  (1) Whether the Court had                    
          jurisdiction to enter the decision in the first instance,                   
          Billingsley v. Commissioner, 868 F.2d 1081, 1084-1085 (9th Cir.             
          1989), or (2) whether the decision entered was the result of                
          fraud on the Court, Abatti v. Commissioner, 859 F.2d 115, 118               
          (9th Cir. 1988), affg. 86 T.C. 1319 (1986).  Where the Court is             
          without jurisdiction in the first instance or there was fraud on            
          the Court, the decision could be viewed as a legal nullity.  See            
          Billingsley v. Commissioner, supra at 1084-1085.  We have also              
          vacated a final decision where a clerical error was discovered.             
                                                             (continued...)           





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