- 6 - 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...)Page: Previous 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 Next
Last modified: May 25, 2011