                     T.C. Summary Opinion 2004-142



                        UNITED STATES TAX COURT



                     SHARON J. FIX, Petitioner v.
             COMMISSIONER OF INTERNAL REVENUE, Respondent



        Docket No. 12958-99S.               Filed October 14, 2004.



        Sharon J. Fix, pro se.

        J. Robert Cuatto, for respondent.



     WOLFE, Special Trial Judge:       This matter is before the Court

on petitioner’s Motion for Leave to File Motion to Vacate Out of

Time (embodying Motion to Vacate) (Motion), filed on January 21,

2004.     It was heard pursuant to the provisions of section 7463 of

the Internal Revenue Code.       All section references are to the

Internal Revenue Code in effect at relevant times, and all Rule

references are to the Tax Court Rules of Practice and Procedure.
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The order to be entered is not reviewable by any other court and

this opinion should not be cited as authority.

     Petitioner seeks to vacate a stipulated decision of this

Court entered on February 29, 2000.     Petitioner contends that the

stipulated decision was entered as a result of fraud on the

Court.

                            Background

     By notice of deficiency, respondent determined that

petitioner was liable for an income tax deficiency for 1996 and

an addition to tax for filing her return after its due date.

Petitioner filed a small tax case petition with this Court on

July 26, 1999, and her case was calendared for the Court’s trial

session in Phoenix, Arizona, commencing on February 14, 2000.

     Petitioner’s case was assigned to Erin Huss (Ms. Huss), an

attorney employed at respondent’s Phoenix office.    Petitioner was

present in the courtroom prior to the scheduled calendar call in

Phoenix on February 14, 2000.   Petitioner was not represented by

counsel.   Henry Eide (Mr. Eide), her former accountant, who

prepared her 1996 return was present in the courtroom to provide

“moral support” for petitioner and to satisfy his curiosity about

Tax Court proceedings.   Kent Ellsworth (Mr. Ellsworth),

petitioner’s accountant at the time of trial, represented

petitioner during pretrial settlement negotiations.    Mr.

Ellsworth is not an attorney or otherwise authorized to represent
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clients before this Court, and he was not present in the

courthouse on the date of the Phoenix calendar call.

     Prior to the Phoenix calendar call, petitioner discussed her

case with Ms. Huss, and they completed a previously negotiated

agreement to settle.     The parties entered into a stipulated

decision document, signed on February 14, 2000, by petitioner and

J. Robert Cuatto, a supervising attorney with respondent’s

Phoenix office.

     In relevant part, the stipulated decision document signed by

the parties states:

             Pursuant to agreement of the parties in this case,
     it is

          ORDERED AND DECIDED: That there is a deficiency
     in income tax due from the petitioner for the taxable
     year 1996 in the amount of $7,121.00; and

          That there is no addition to tax due from the
     petitioner for the taxable year 1996, under the
     provisions of I.R.C. § 6651(a)(1).

             *     *     *      *           *   *     *

          It is hereby stipulated that the Court may enter
     the foregoing decision in this case.

The decision was entered by the Court on February 29, 2000, and

it became final 90 days later on May 29, 2000.

     On December 30, 2003, nearly 3-1/2 years after the decision

in her case became final, petitioner wrote a letter to the Court

and asked that the decision be set aside.       In the letter

petitioner alleged that she was coerced and intimidated by Ms.
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Huss into signing the stipulated decision document.   Petitioner

wrote, in part:

          Before I even entered the hearing, Ms. Erin Hess
     [sic] confronted my accountant, who had accompanied me
     to explain what happened to the documents. She
     aggressively dressed him down verbally and the
     character of her accusations so intimidated him that he
     turned on his heel and left the building, abandoning
     me. I was then coerced into signing the decision
     document by Ms. Hess, who demanded that I either sign
     the document immediately or she would have me jailed on
     the spot.

          I never went before the Judge to argue my case and
     defend myself as a result of the actions of Ms. Hess.
     And it was not a matter of choice. I even tried to
     leave the court building when faced with this illegal
     and unconscionable onslaught, but Ms. Hess had me
     brought back to her by two court security guards
     against my wishes. There is no way I would have signed
     that decision document any other way because I KNEW I
     did not owe the money. And in spite of all the denials
     of irresponsible behavior by IRS counsel and their
     associates, I continue to be on the target of threats
     and intimidation from the district counsel’s office
     over this matter.

     Petitioner’s letter was filed by the Court as petitioner’s

Motion on January 21, 2004.

                              Discussion

     Under section 7481(b), a decision of the Court in a small

tax case becomes final 90 days after the decision is entered.

Rule 162 provides that a motion to vacate or revise a decision

shall be filed within 30 days after the decision has been entered

unless the Court shall otherwise permit.

     As previously noted, the decision in this case was entered

on February 29, 2000.   Petitioner did not file a motion to vacate
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or revise the decision within 30 days of that date, and under

section 7481(b), the decision became final on May 29, 2000.

     As a general rule, the Court lacks jurisdiction to vacate a

decision once it becomes final.   Abatti v. Commissioner, 859 F.2d

115, 117-118 (9th Cir. 1988), affg. 86 T.C. 1319 (1986); Cinema

‘84 v. Commissioner, 122 T.C. 264, 270 (2004).    An exception to

this general rule applies where a decision was obtained by fraud

on the Court.   Drobny v. Commissioner, 113 F.3d 670, 677 (7th

Cir. 1997), affg. T.C. Memo. 1995-209; Abatti v. Commissioner,

supra at 118.

     The Court of Appeals for the Ninth Circuit, whose opinions

are controlling in this case, defines fraud on the Court as “‘an

unconscionable plan or scheme which is designed to improperly

influence the court in its decision.’”     Abatti v. Commissioner,

supra at 118 (quoting Toscano v. Commissioner, 441 F.2d 930, 934

(9th Cir. 1971), vacating 52 T.C. 295 (1969)).    The concept of

fraud on the Court is a narrow one and should be applied in the

interest of preserving the finality of judgments.    Toscano v.

Commissioner, supra.

     To prove fraud on the Court, petitioner has the burden of

establishing by clear and convincing evidence that “an

intentional plan of deception designed to improperly influence

the Court in its decision has had such an effect on the Court.”

Abatti v. Commissioner, 86 T.C. at 1325.    See Drobny v.
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Commissioner, supra at 677-678; Pulitzer v. Commissioner, T.C.

Memo. 1987-408.    The burden of proof cannot be met by broad

assertions, and the moving party must come forward with

“‘specific facts which will pretty plainly impugn the official

record.’”    Drobny v. Commissioner, supra at 677 (quoting Kenner

v. Commissioner, 387 F.2d 689, 691 (7th Cir. 1968)).

       In the present case, petitioner failed to introduce any

credible evidence in support of her allegations that she was

coerced by threats and intimidation into entering into a

stipulated decision.    Not only did petitioner fail to establish

that any improper conduct occurred, but her account of the

circumstances leading to and surrounding the signing of the

stipulated decision document was contradicted by several credible

witnesses, including her own former accountants, Mr. Eide and Mr.

Ellsworth.

       Petitioner argues that Mr. Eide left the courtroom on the

date set for trial after a verbal altercation with Ms. Huss, but

Mr. Eide explicitly disagreed with petitioner’s statement and

testified that he did not have any contact with Ms. Huss on that

day.    Mr. Eide also stated that he did not witness any

discussions petitioner had with Ms. Huss on the date of the

calendar call.

       Mr. Ellsworth testified that petitioner had agreed to the

terms of a pretrial settlement that served as the basis for the
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stipulated decision.    He explained that the settlement was a very

favorable one for petitioner, denied that petitioner was coerced

into the settlement, and testified that with respect to the

negotiation:   “I was happy because * * * it seemed like we had

saved several thousand dollars.”    He said:   “I thought we’d done

a really good job.”    While Mr. Ellsworth stated that petitioner

was in agreement with the favorable settlement he had negotiated

for her, he noted that she did not seem to understand fully the

taxation of her capital gains.1

     Ms. Huss testified that her dealings with petitioner were

“professional” and strongly denied petitioner’s accusations that

she coerced and intimidated her into signing the stipulated

decision document.    In response to petitioner’s accusatory

questions, Ms. Huss specifically denied ever threatening to have

petitioner thrown into jail or brought back into the courtroom by

security personnel against her will.    Further, Ms. Huss made it

clear that she never has threatened a taxpayer with a jail


     1
         Mr. Ellsworth explained:

           She had a hard time understanding the capital
           gain law. She couldn’t understand how you
           can be taxed on something when you don’t get
           the cash. And I tried to explain it over and
           over again that the cash is irrelevant in
           calculating capital gains, it’s actually a
           situation of basis versus sales price. And
           we couldn’t establish basis over the numbers
           that we talked about and that’s why we
           settled for what we did.
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sentence and never has asked security guards to restrain a

taxpayer.   Ms. Huss’s testimony was clear, explicit, and entirely

credible.

     With respect to petitioner’s statements that security

personnel had refused to allow her to leave the courthouse and

had acted on Ms. Huss’s orders, Steve Borak, senior deputy for

the U.S. Marshals Service, testified that the Court’s security

officers do not take orders from respondent’s counsel and that it

would “defy intuition” for security personnel to involve

themselves in the judicial process.    Further, Mr. Borak testified

that no incident reports were filed at any point during the

Court’s February 2000 Phoenix trial session.   Since security

personnel must file an incident report any time they are involved

with verbal confrontations or the use of force, an incident

report would have been filed if security officers had brought

someone back into the courtroom against his or her wishes.

     Petitioner has failed to show that the stipulated decision

entered in this case was the result of fraud on the Court.

Petitioner has not shown that Attorney Erin Huss or any security

personnel engaged in any improper actions in the handling of

petitioner’s case.   The record establishes that petitioner’s

accusations of fraud on the Court are without merit.

     For reasons set forth above, petitioner’s Motion is denied.
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    Reviewed and adopted as the report of the Small Tax Case

Division.

    To reflect the foregoing,



                                        An appropriate order

                                denying petitioner’s motion for

                                leave to file motion to vacate

                                will be issued.
