- 12 -
formed under California law and/or (2) the criminal investigation
of DiRicco made him a disqualified TMP and he breached his
fiduciary duties as a TMP by not giving petitioner notice of the
Lumenetics case. Petitioner contends that, because the decision
in Lumenetics should be void for lack of jurisdiction, the
assessments against him in this case (based on partnership
adjustments made by the IRS) were improper.
Rule 162 provides that a party seeking to vacate a decision
must file an appropriate motion within 30 days after the decision
is entered, unless the Court allows otherwise. Whether the Court
allows the filing of a motion to vacate a decision after the
referenced 30-day period is generally within the sound discretion
of the Court. See Estate of Egger v. Commissioner, 92 T.C. 1079,
1083 (1989); see also Adkins v. Commissioner, T.C. Memo. 2005-
260. Even if a decision is otherwise final, the Court has
jurisdiction to vacate a decision that is void; i.e., because the
Court lacked jurisdiction to enter the decision in the first
place. See Billingsley v. Commissioner, 868 F.2d 1081 (9th Cir.
1989); Abeles v. Commissioner, 90 T.C. 103, 105-106 (1988);
Brannon's of Shawnee, Inc. v. Commissioner, 69 T.C. 999, 1001-
1002 (1978); see also Adkins v. Commissioner, supra.
Though petitioner may be allowed to raise at any time the
issue of lack of subject matter jurisdiction making a decision
void, he concedes that the proper course for him would have been
to file a motion to vacate that decision (in Lumenetics, docket
Page: Previous 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 Next
Last modified: May 25, 2011