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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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