                                           DOUGLAS P. SNOW AND DEBORAH J. SNOW, PETITIONERS v.
                                             COMMISSIONER OF INTERNAL REVENUE, RESPONDENT
                                                 DOUGLAS P. SNOW, PETITIONER v. COMMISSIONER
                                                     OF INTERNAL REVENUE, RESPONDENT

                                               Docket Nos. 6838–95, 6839–95.                            Filed June 17, 2014.

                                                 In 1993 R mailed notices of deficiency regarding Ps’ 1987
                                               and 1990 tax years. In 1995 Ps filed petitions with the Court.
                                               Ps moved to dismiss for lack of jurisdiction alleging that the

                                                                                                                                  413




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                                     414                 142 UNITED STATES TAX COURT REPORTS                                    (413)

                                               notices of deficiency had not been mailed to Ps’ last known
                                               address and were therefore invalid. R also moved to dismiss
                                               for lack of jurisdiction because the petitions were untimely.
                                               These cases were assigned to a Special Trial Judge who wrote
                                               an initial report granting Ps’ motions to dismiss. Because of
                                               the amounts in issue, the decisions in these cases were
                                               required by statute to be made by a regular Judge. After the
                                               Special Trial Judge submitted his initial report for review, the
                                               report was rewritten to grant R’s motions to dismiss rather
                                               than Ps’ motions. A regular Judge adopted the rewritten
                                               report and then entered orders dismissing for lack of jurisdic-
                                               tion on Oct. 15, 1996. See Snow v. Commissioner, T.C. Memo.
                                               1996–457. The orders, which are treated as decisions, became
                                               final on Jan. 13, 1997. In August 2005 the Court informed Ps
                                               that the initial report of the Special Trial Judge had proposed
                                               to grant Ps’ motions. The Court sent Ps a copy of the initial
                                               report. This notification was in reaction to Ballard v. Commis-
                                               sioner, 544 U.S. 40 (2005). On July 3, 2013, Ps filed motions
                                               for leave to file motions to vacate the orders of dismissal that
                                               had become final on Jan. 13, 1997. Held: As a general rule,
                                               the finality of a Tax Court decision is absolute; the recognized
                                               exceptions are when there has been a fraud on the Court or
                                               when the decision was void because the Court did not have
                                               jurisdiction to enter the decision. Here there was no fraud on
                                               the Court and the Court clearly had jurisdiction to decide
                                               whether we had jurisdiction to redetermine the deficiencies
                                               involved. Ps’ motions will be denied.

                                           Jonathan P. Decatorsmith, for petitioners.
                                           George W. Bezold, for respondent.

                                                                                  OPINION

                                       RUWE, Judge: The matter before us concerns petitioners’
                                     motions for leave to file motions to vacate orders of dis-
                                     missal. 1 The motions were filed on July 3, 2013. The orders
                                     of dismissal that petitioners’ motions seek to vacate were
                                     entered on October 15, 1996, pursuant to our opinion in
                                     Snow v. Commissioner, T.C. Memo. 1996–457.

                                                                               Background
                                       The petitions in these cases were filed in 1995 regarding
                                     notices of deficiency for the taxable years 1987 and 1990. The
                                     notices of deficiency had been mailed in May 1993.
                                       1 Proposed motions to vacate were embodied in petitioners’ motions for

                                     leave to file.




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                                     (413)                            SNOW v. COMMISSIONER                                        415


                                        Shortly after the petitions were filed, the parties each
                                     moved to dismiss for lack of jurisdiction. Petitioners alleged
                                     that the notices of deficiency were invalid because they had
                                     not been sent to petitioners’ last known address as required
                                     by section 6212. 2 Respondent alleged that the notices of defi-
                                     ciency had been sent to petitioners’ last known address, and
                                     were valid, but that the petitions had not been filed within
                                     the 90-day period following the dates on which the notices of
                                     deficiency had been mailed as required by section 6213(a).
                                     The Court granted respondent’s motions to dismiss, holding
                                     that the notices of deficiency were valid and the petitions
                                     were untimely.
                                        Section 7459(c) provides that ‘‘if the Tax Court dismisses
                                     a proceeding for lack of jurisdiction, an order to that effect
                                     shall be entered in the records of the Tax Court, and the
                                     decision of the Tax Court shall be held to be rendered upon
                                     the date of such entry.’’ ‘‘[A]n order of dismissal for lack of
                                     jurisdiction is treated as the Court’s decision.’’ Stewart v.
                                     Commissioner, 127 T.C. 109, 112 (2006). Section 7481(a)(1)
                                     provides that the decision of the Tax Court becomes final
                                     upon the expiration of the time allowed for filing an appeal.
                                     Section 7483 provides that a notice of appeal must be filed
                                     within 90 days after the decision of the Tax Court is entered.
                                     Petitioners did not appeal, and the Court’s decisions became
                                     final on January 13, 1997.
                                        Petitioners’ motions for leave to file motions to vacate come
                                     over 16 years after the decisions in these cases became final.
                                     Petitioners, however, argue that special circumstances war-
                                     rant vacating these decisions. These circumstances require
                                     some explanation.
                                        The decisions in these cases were entered by Judge Daw-
                                     son and were based on an opinion of Special Trial Judge
                                     Goldberg with which Judge Dawson agreed. 3 See Snow v.
                                     Commissioner, T.C. Memo. 1996–457. Pursuant to section
                                     7443A, the Chief Judge may assign certain types of cases to
                                     be heard by a Special Trial Judge. In cases such as peti-
                                        2 Unless otherwise indicated, all section references are to the Internal

                                     Revenue Code, and all Rule references are to the Tax Court Rules of Prac-
                                     tice and Procedure applicable to the relevant events.
                                        3 The Tax Court is composed of Judges appointed by the President and

                                     several Special Trial Judges appointed from time to time by the Tax
                                     Court’s Chief Judge. Judge Dawson was appointed by the President.




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                                     416                 142 UNITED STATES TAX COURT REPORTS                                    (413)


                                     tioners’, which involved disputed deficiencies exceeding
                                     $10,000, 4 section 7443A required a presidentially appointed
                                     Judge (hereinafter regular Judge) to make the decision. See
                                     Rules 180, 181, and 183 as they existed prior to amendment
                                     in 2005. At the time the instant cases were decided, it was
                                     the practice of the Court to have the report of a Special Trial
                                     Judge in such a case submitted to the Chief Judge, who
                                     would then assign it to a regular Judge for review, adoption,
                                     and entry of decision. If, upon review, the regular Judge dis-
                                     agreed with the Special Trial Judge’s report, the two would
                                     confer and changes might be made through a collaborative
                                     process. See Ballard v. Commissioner, 544 U.S. 40, 57 (2005).
                                        The Special Trial Judge’s initial report in these cases,
                                     which was submitted to the Chief Judge pursuant to Rule
                                     183(b), had proposed to grant petitioners’ motions to dismiss
                                     for lack of jurisdiction because the notices of deficiency had
                                     not been properly sent to petitioners’ last known address. In
                                     arriving at this conclusion, the initial report emphasized cer-
                                     tain facts and circumstances that occurred after the mailing
                                     of the notices of deficiency.
                                        After the Special Trial Judge submitted his initial report
                                     to the Chief Judge, the report was rewritten. The rewritten
                                     report explained that the appropriate test for deciding
                                     whether the notices were properly addressed was whether, at
                                     the time the notices of deficiency were mailed, the Internal
                                     Revenue Service (IRS) knew or should have known that peti-
                                     tioners had moved to a new address. See Ward v. Commis-
                                     sioner, 907 F.2d 517 (5th Cir. 1990), rev’g 92 T.C. 949 (1989);
                                     Pomeroy v. United States, 864 F.2d 1191 (5th Cir. 1989);
                                     Monge v. Commissioner, 93 T.C. 22 (1989). Using this anal-
                                     ysis, the revised report considered facts occurring after the
                                     mailing of the notices of deficiency to be irrelevant and held
                                     that the notices of deficiency had been mailed to petitioners’
                                     last known address. As a result, the revised report held that
                                     the notices of deficiency were valid and that respondent’s
                                     motions to dismiss should be granted because the petitions
                                     were untimely. Judge Dawson then adopted the revised
                                     report, which appears at T.C. Memo. 1996–457, and, on
                                     October 15, 1996, entered the orders (decisions) granting
                                     respondent’s motions to dismiss for lack of jurisdiction.
                                           4 The   amount is now $50,000. See sec. 7443A(b)(3), (c).




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                                     (413)                            SNOW v. COMMISSIONER                                        417


                                        In accordance with Rule 183 in effect from 1983 to 2005,
                                     it was the Tax Court’s practice to treat a Special Trial
                                     Judge’s initial report submitted to the Chief Judge for adop-
                                     tion and decision by a regular Judge as an internal docu-
                                     ment. Therefore, Special Trial Judges’ initial reports were
                                     not made available to the parties. Only the adopted reports
                                     and the decisions were served on the parties. See Ballard v.
                                     Commissioner, 544 U.S. at 45–46.
                                        Years later, in 2005, a case handled under Rule 183 as it
                                     existed from 1983 to 2005 was heard by the United States
                                     Supreme Court. In Ballard, the Supreme Court held that for
                                     purposes of appealing a Tax Court decision, the parties were
                                     entitled to have access to a copy of the Special Trial Judge’s
                                     initial report. The Supreme Court held that this was
                                     required because an appellate court could not otherwise
                                     review whether the regular Judge had properly followed Rule
                                     183, which required that the regular Judge give due regard
                                     to the fact that the Special Trial Judge had the opportunity
                                     to evaluate the credibility of witnesses and give the Special
                                     Trial Judge’s findings of fact the presumption of correctness.
                                     Neither Ballard nor Rule 183 required the reviewing Judge
                                     to always accept the findings of the Special Trial Judge. Rule
                                     183 permitted the reviewing Judge to modify or reject the
                                     Special Trial Judge’s report in whole or in part after giving
                                     it due regard and the presumption of correctness.
                                        In reaction to the 2005 Ballard opinion, the Tax Court
                                     revised its Rules so as to prospectively provide the parties a
                                     copy of the initial report of the Special Trial Judge and allow
                                     them to comment on that report before it was reviewed by
                                     a regular Judge. See Rule 183 effective September 20, 2005,
                                     and Amendments to Rules of Practice and Procedure of the
                                     United States Tax Court, with explanatory notes. 125 T.C.
                                     339, 342–347. The Court also attempted to find initial copies
                                     of Special Trial Judges’ reports that had previously been sub-
                                     mitted for review and adoption. The initial reports which
                                     could be found were then served on the parties. The initial
                                     report of Special Trial Judge Goldberg was served on peti-
                                     tioners by an order dated August 19, 2005. 5
                                           5 The   August 19, 2005, order stated:
                                             The Supreme Court decided in Ballard v. Commissioner, 544 U.S. ll
                                                                                                      Continued




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                                     418                  142 UNITED STATES TAX COURT REPORTS                                    (413)


                                        Petitioners’ motions that are now under consideration were
                                     filed almost 8 years after petitioners first learned of the Spe-
                                     cial Trial Judge’s initial report and over 16 years after the
                                     decisions had become final. Petitioners allege that after
                                     receiving the Special Trial Judge’s initial report in August
                                     2005 they began exploring all options to obtain representa-
                                     tion for the purpose of vacating the decisions that had been
                                     entered in 1996. Petitioners state that they contacted
                                     numerous attorneys, foundations, Senators, and Congress-
                                     men in their effort, but to no avail. They allege that it was
                                     not until late in 2012 that they were able to obtain their cur-
                                     rent counsel who filed the motions now under consideration
                                     in July 2013.
                                        Respondent opposes petitioners’ motions on the grounds
                                     that the Court is without jurisdiction to grant petitioners’
                                     motions to vacate the decisions that have long been final and
                                     that the opinion of the Court reported at T.C. Memo. 1996–
                                     457 is a correct application of the law to the facts.

                                                                                 Discussion
                                       Rule 162 provides that any motion to vacate a decision
                                     shall be filed within 30 days after the decision is entered,
                                     unless the Court otherwise permits. Petitioners’ motions
                                     were not filed within 30 days. In order for petitioners’ pro-
                                           (2005), that draft opinions submitted to the Chief Judge by Special Trial
                                           Judges under Rule 183(b) of the Court’s Rules of Practice and Procedure
                                           should have been available to the parties. From 1983 until issuance of
                                           the Supreme Court’s opinion in Ballard, this Court did not file the draft
                                           opinions of Special Trial Judges submitted under Rule 183(b). In retro-
                                           spect and considering the Supreme Court’s holding, draft opinions would
                                           have been filed and included in the public file. Accordingly, the Court
                                           has decided that retained Special Trial Judge draft opinions will be filed
                                           and, thereafter, made publicly available.
                                              The Court recently conducted a search for retained copies of initial
                                           draft opinions submitted by Special Trial Judges to the Chief Judge
                                           under Rule 183(b). A draft opinion was retained in the above-captioned
                                           cases in which a Special Trial Judge’s draft opinion was adopted under
                                           the procedures of Rule 183(b).
                                              The foregoing considered, it is
                                              ORDERED that the Clerk of the Court file a copy of the Special Trial
                                           Judge’s draft opinion submitted to the Chief Judge under Rule 183(b)
                                           and serve the same on the parties to these cases, and it is further
                                              ORDERED that the decisions in these cases are final under I.R.C. sec-
                                           tion 7481 and remain in full force and effect.




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                                     (413)                             SNOW v. COMMISSIONER                                        419


                                     posed motions to vacate to be considered, Rule 162 required
                                     petitioners to file motions for leave to file their motions to
                                     vacate. The granting of such motions lies within the sound
                                     discretion of the Court. Stewart v. Commissioner, 127 T.C. at
                                     111–112; see also Drobny v. Commissioner, 113 F.3d 670, 677
                                     (7th Cir. 1997), aff ’g T.C. Memo. 1995–209. But before we
                                     can exercise any discretion, we must have jurisdiction.
                                       When jurisdiction is in issue, it is clear that we have juris-
                                     diction to decide whether we have jurisdiction. Stewart v.
                                     Commissioner, 127 T.C. at 112. Thus, we must first deter-
                                     mine whether we have jurisdiction to grant the requested
                                     relief. As we stated in Stewart:
                                              In order for us to consider the substantive merits of petitioner’s motion
                                           for leave, we must still have jurisdiction. Except for very limited excep-
                                           tions, none of which applies here, this Court lacks jurisdiction once a
                                           decision becomes final within the meaning of section 7481. Abatti v.
                                           Commissioner, 859 F.2d 115, 117–118 (9th Cir. 1988), affg. 86 T.C. 1319
                                           (1986); Lasky v. Commissioner, 235 F.2d 97, 98 (9th Cir. 1956), affd. 352
                                           U.S. 1027 (1957). As relevant here, a decision of the Tax Court becomes
                                           final ‘‘Upon the expiration of the time allowed for filing a notice of
                                           appeal, if no such notice has been duly filed within such time’’. Sec.
                                           7481(a)(1). Section 7483 provides that a notice of appeal may be filed
                                           within 90 days after a decision is entered. As previously explained, an
                                           order of dismissal for lack of jurisdiction is treated as the Court’s deci-
                                           sion. [Id.; fn. ref. omitted.]

                                     Section 7481 provides for the finality of a Tax Court decision
                                     upon the expiration of the time for appeal. There were no
                                     appeals in these cases. Our jurisdiction in a case where our
                                     previous decision has become final is severely limited by both
                                     statute and caselaw.
                                        As a general rule, the finality of a decision is absolute. See
                                     Abatti v. Commissioner, 86 T.C. at 1323. There are very few
                                     exceptions. Cinema ‘84 v. Commissioner, 122 T.C. 264 (2004),
                                     aff ’d, 412 F.3d 366 (2d Cir. 2005). One exception is where
                                     there was a fraud on the court. See Toscano v. Commissioner,
                                     441 F.2d 930 (9th Cir. 1971), vacating 52 T.C. 295 (1969);
                                     Kenner v. Commissioner, 387 F.2d 689 (7th Cir. 1968);
                                     Cinema ‘84 v. Commissioner, 122 T.C. at 270, 271; Taub v.
                                     Commissioner, 64 T.C. 741, 751 (1975), aff ’d without pub-
                                     lished opinion, 538 F.2d 314 (2d Cir. 1976); see also Senate
                                     Realty Corp. v. Commissioner, 511 F.2d 929 (2d Cir. 1975).
                                     We have also vacated an otherwise final decision in a situa-




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                                     420                  142 UNITED STATES TAX COURT REPORTS                                    (413)


                                     tion where the Court had never acquired jurisdiction to make
                                     a decision. See Abeles v. Commissioner, 90 T.C. 103 (1988);
                                     accord Seven W. Enters., Inc. & Subs. v. Commissioner, 723
                                     F.3d 857 (7th Cir. 2013), vacating and remanding 136 T.C.
                                     539 (2011); Billingsley v. Commissioner, 868 F.2d 1081,
                                     1084–1085 (9th Cir. 1989); Brannon’s of Shawnee, Inc. v.
                                     Commissioner, 69 T.C. 999, 1002 (1978). We may also ‘‘cor-
                                     rect’’ a final decision where a clerical error in the decision is
                                     discovered after the decision has become final. Michaels v.
                                     Commissioner, 144 F.3d 495 (7th Cir. 1998), aff ’g T.C. Memo.
                                     1995–294. Here it is clear that there was neither fraud on
                                     the Court nor clerical error and that we had jurisdiction for
                                     purposes of deciding whether to dismiss petitioners’ cases for
                                     lack of jurisdiction. Petitioners make no argument to the con-
                                     trary.
                                        In Cinema ’84 we noted that the Court of Appeals for the
                                     Sixth Circuit had previously held that a final decision of the
                                     Tax Court could be vacated in situations involving mutual
                                     mistake, see Reo Motors, Inc. v. Commissioner, 219 F.2d 610
                                     (6th Cir. 1955), but that in a more recent case, Harbold v.
                                     Commissioner, 51 F.3d 618, 622 (6th Cir. 1995), the Court of
                                     Appeals for the Sixth Circuit held that Reo Motors, Inc. was
                                     overruled by the Supreme Court in Lasky v. Commissioner,
                                     352 U.S. 1027 (1957), and that the Court would no longer fol-
                                     low the rationale of Reo Motors, Inc., Cinema ’84 v. Commis-
                                     sioner, 122 T.C. at 270, 271.
                                        In Wapnick v. Commissioner, 365 F.3d 131, 132 (2d Cir.
                                     2004), the court explained the finality of Tax Court decisions,
                                     stating:
                                           [S]ection 7481 of the Internal Revenue Code provides that a decision of
                                           the Tax Court becomes final ‘‘[u]pon the expiration of the time allowed
                                           for filing a petition for certiorari, if the decision of the Tax Court has
                                           been affirmed or the appeal dismissed by the United States Court of
                                           Appeals and no petition for certiorari has been duly filed.’’ 26 U.S.C.
                                           § 7481(a)(2)(A). In considering the predecessor to section 7481, the
                                           Supreme Court ruled that after an order of the Tax Court has become
                                           final the ‘‘statute deprives us of jurisdiction over the case.’’ R. Simpson
                                           & Co. v. Commissioner, 321 U.S. 225, 230 (1944); see also Lasky v.
                                           Commissioner, 235 F.2d 97, 99 (9th Cir. 1956). The Court recognized
                                           that ‘‘the usual rules of law applicable in court procedure must be
                                           changed’’ to achieve the finality needed in the realm of tax decisions. See
                                           Simpson, 321 U.S. at 228.




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                                     (413)                             SNOW v. COMMISSIONER                                        421


                                     The rule of finality can result in either the taxpayer or the
                                     Commissioner receiving a benefit that would not have been
                                     available had an error been corrected before a decision
                                     became final. 6
                                       We do not have equitable power to expand our jurisdiction.
                                     See Commissioner v. McCoy, 484 U.S. 3 (1987); Drobny v.
                                     Commissioner, 113 F.3d 670 (7th Cir. 1997); Woods v.
                                     Commissioner, 92 T.C. 776, 784 (1989). As we stated in
                                     Cinema ’84 v. Commissioner, 122 T.C. at 271:
                                           Finally, movant alleges that the Court’s affirmance of respondent’s
                                           determinations created a whipsaw that ‘‘is patently unreasonable,
                                           unfair, unjust and inequitable.’’ We are willing to assume that this is
                                           also correct. But the fact is that none of these allegations, standing alone
                                           or together, constitute a fraud on the Court or other valid reason for
                                           vacating a final decision of this Court. [Fn. ref. omitted.]
                                        When a Tax Court decision becomes final and there is no
                                     jurisdiction in any other Federal court, lack of jurisdiction
                                     trumps equity. For example, in United States v. Dalm, 494
                                     U.S. 596 (1990), the taxpayer, who had been the administra-
                                     trix of her former employer’s estate, received substantial pay-
                                     ments from the deceased employer’s brother. Those payments
                                     were reported on a Federal gift tax return, and the gift tax
                                     was paid by the taxpayer. Subsequently, the IRS examined
                                     the taxpayer’s income tax return for the year in which she
                                     received the payments and determined that the payments
                                     were taxable income rather than gifts. The taxpayer peti-
                                     tioned this Court, and we decided that the payments were
                                     taxable income. Subsequently, the taxpayer filed a claim for
                                     refund of the gift tax. The IRS denied the claim. In subse-
                                     quent litigation over the erroneously paid gift tax, the United
                                     States Supreme Court held that the statute deprived the Dis-
                                     trict Court of jurisdiction over the action for refund of the
                                     gift tax, noting that ‘‘Dalm does not seek to invoke equitable
                                     recoupment in determining her income tax liability; she has
                                     already litigated that liability [in the Tax Court] without
                                     raising a claim of equitable recoupment and is foreclosed
                                     from relitigating it now.’’ Dalm, 494 U.S. at 606. Here, as in

                                       6 For a discussion of the hardships that can result from the rules gov-

                                     erning finality, see Estate of Bailly v. Commissioner, 81 T.C. 949, 955 n.10
                                     (1983).




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                                     422                  142 UNITED STATES TAX COURT REPORTS                                    (413)


                                     Dalm, our decisions have become final. As a result, we do not
                                     have jurisdiction to modify the decisions.
                                       Recently, the Court of Appeals for the Seventh Circuit
                                     addressed the issue of our jurisdiction to vacate decisions
                                     that had become final where the decisions contained clerical
                                     errors. In Seven W. Enters., Inc. & Subs. v. Commissioner,
                                     723 F.3d 857, 862 (7th Cir. 2013), the Court of Appeals held
                                     that the Tax Court had no jurisdiction to vacate an incorrect
                                     decision that had become final, stating:
                                           Our case law makes it clear that, absent a fraud that infected the Tax
                                           Court’s decision, the Tax Court cannot vacate a decision that has become
                                           final. Here, the Tax Court issued its decisions on June 8, and those
                                           decisions became final on September 6, 2011. The Commissioner does
                                           not contend that the June 8 decisions were the result of fraud. Con-
                                           sequently, the Tax Court did not have the authority to vacate those
                                           decisions. Instead, as was done in Michaels, the Tax Court should have
                                           corrected the initial decisions without vacating them.
                                       Finally, both petitioners and respondent rely on an unre-
                                     ported case decided by the Court of Appeals for the Fifth Cir-
                                     cuit, to which these cases are appealable. See Hilal v.
                                     Commissioner, 237 Fed. Appx. 932 (5th Cir. 2007). 7 In
                                     denying Hilal’s motion to vacate a Tax Court decision where
                                     the motion was filed almost two years after the decision
                                     became final, the Court of Appeals stated:
                                           As a general rule, once a decision of the tax court becomes final, the tax
                                           court lacks jurisdiction to vacate that decision. See, e.g., Davenport
                                           Recycling Assocs. v. Comm’r, 220 F.3d 1255, 1259 (11th Cir. 2000).
                                              Courts have made exceptions to the finality rule in only three situa-
                                           tions. Id. These exceptions to the general rule ‘‘must be construed nar-
                                           rowly’’ so that the finality of judgments is preserved. Id. The first excep-
                                           tion to the finality rule is when the tax court may have originally lacked
                                           jurisdiction to enter a final decision. Billingsley v. Comm’r, 868 F.2d
                                           1081, 1084–85 (9th Cir. 1989). The rationale for this exception is that
                                           it would ‘‘border on absurdity’’ to prevent the tax court on jurisdictional
                                           grounds from vacating a decision it lacked jurisdiction to enter in the
                                           first place. Id. at 1085. Some circuits also allow an exception to the
                                           finality rule when there is a fraud upon the court. See, e.g., Drobny v.
                                           Comm’r, 113 F.3d 670, 677 (7th Cir. 1997). The third possible exception
                                           to the finality rule is for mutual mistake, where the tax court decision
                                           was predicated on the parties’ stipulation, and both the government and

                                           7 Fifth
                                              Cir. R. 47.5.4 provides that, except under limited circumstances
                                     not relevant here, unpublished opinions issued on or after January 1, 1996,
                                     are not precedent. However, an unpublished opinion issued after January
                                     1, 2007, may be cited pursuant to Fed. R. App. P. 32.1(a).




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                                     (413)                             SNOW v. COMMISSIONER                                        423


                                           the taxpayer concede they mistakenly entered into the stipulation.
                                           Abatti v. Comm’r, 859 F.2d 115, 118 (9th Cir. 1988). The validity of this
                                           third exception is questionable. See, e.g., Harbold, 51 F.3d at 622; Swall
                                           v. Comm’r, 122 F.2d 324, 324 (9th Cir. 1941). The tax court lacks juris-
                                           diction to vacate its decision on other grounds, including newly discov-
                                           ered evidence, an intervening change in the law, and excusable neglect.
                                           Kenner v. Comm’r, 387 F.2d 689, 690–91 (7th Cir. 1968); Toscano v.
                                           Comm’r, 441 F.2d 930, 932 (9th Cir. 1971).
                                             [Hilal v. Commissioner, 237 Fed. Appx. at 933–934.]
                                       None of the recognized exceptions to finality is present
                                     here. We had jurisdiction in 1996 to decide the question of
                                     our jurisdiction and to grant respondent’s original motions to
                                     dismiss for lack of jurisdiction. Indeed, dismissal for lack of
                                     jurisdiction was also the remedy petitioners sought, albeit for
                                     different reasons than respondent. There is no allegation or
                                     evidence of fraud on the Court. Finally, there is no allegation
                                     or evidence of mutual mistake or clerical error.
                                       Petitioners, nevertheless, argue that we should override
                                     the above precedents by applying rule 60(b) of the Federal
                                     Rules of Civil Procedure, 8 specifically, rule 60(b)(4) and (6).
                                     Paragraph (c) requires that motions pursuant to paragraph
                                     (b)(4) and (6) shall ‘‘be made within a reasonable time’’. Our
                                     Rule 1(b) provides that where there is no applicable rule, we
                                     may give ‘‘weight to the Federal Rules of Civil Procedure to
                                     the extent that they are suitably adaptable to govern the
                                     matter at hand.’’
                                       Rule 60(b)(4) of the Federal Rules of Civil Procedure allows
                                     for relief from a judgment that is void. A judgment that was
                                           8 Fed.   R. Civ. P. 60(b) provides, in part:
                                            (b) Grounds for Relief from a Final Judgment, Order, or Proceeding. On
                                                motion and just terms, the court may relieve a party or its legal rep-
                                                resentative from a final judgment, order, or proceeding for the fol-
                                                lowing reasons:
                                                (1) mistake, inadvertence, surprise, or excusable neglect;
                                                (2) newly discovered evidence that, with reasonable diligence, could
                                                    not have been discovered in time to move for a new trial under
                                                    Rule 59(b);
                                                (3) fraud (whether previously called intrinsic or extrinsic), misrepre-
                                                    sentation, or misconduct by an opposing party;
                                                (4) the judgment is void;
                                                (5) the judgment has been satisfied, released, or discharged; it is
                                                    based on an earlier judgment that has been reversed or vacated;
                                                    or applying it prospectively is no longer equitable; or
                                                (6) any other reason that justifies relief.




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                                     424                  142 UNITED STATES TAX COURT REPORTS                                    (413)


                                     made by a court that was without jurisdiction is a void judg-
                                     ment. See Billingsley v. Commissioner, 868 F.2d 1081 (9th
                                     Cir. 1989); Abeles v. Commissioner, 90 T.C. 103 (1988). As
                                     previously explained, a Tax Court decision is considered void
                                     when the Court lacked jurisdiction to make the decision.
                                     Such a void decision can be vacated. However, as also pre-
                                     viously explained, because petitioners filed petitions, we had
                                     jurisdiction to decide our jurisdiction, which is what we did
                                     in dismissing these cases in 1996.
                                       Petitioners also allege that because they did not receive
                                     notice of the Special Trial Judge’s initial report in time to
                                     timely appeal, they were deprived of due process and the
                                     decisions are void. Petitioners cite no cases where an alleged
                                     due process violation was grounds for vacating a final Tax
                                     Court decision. Indeed, a long line of previously cited cases
                                     severely restricts our jurisdiction to vacate a final decision to
                                     the narrow circumstances previously stated. 9
                                       Rule 60(b)(6) of the Federal Rules of Civil Procedure allows
                                     relief for ‘‘any other reason that justifies relief ’’ from the
                                     operation of the judgment. However, the previously cited
                                     authorities narrowly restrict the ‘‘reasons’’ that can be used
                                           9 Petitioners
                                                       cite no cases that have held that the failure to provide the
                                     initial Special Trial Judge’s report was a violation of due process. In this
                                     regard, we note that our decision in Snow v. Commissioner, T.C. Memo.
                                     1996–457, did not deprive petitioners of a forum in which to contest their
                                     tax liabilities. In that opinion we advised petitioners as follows:
                                              Petitioners are not without recourse. Because they paid the defi-
                                           ciencies, interest, and penalties in full on May 1, 1995, the time for filing
                                           a claim for refund has not yet run. Sec. 6511(a). If a timely refund claim
                                           is disallowed by respondent, petitioners could file a suit for refund in the
                                           U.S. District Court or the U.S. Court of Federal Claims and thus litigate
                                           the merits of their tax liabilities for the years in question. [Id., slip op.
                                           at 13 n.2.]
                                     As far as we know from the record, petitioners have not filed claims for
                                     refund. It therefore appears that petitioners may now be barred by sec.
                                     6511(a) from obtaining any refunds for the years 1987 and 1990, regard-
                                     less of whether we were to grant their current motions. See sec. 6511(a).
                                     As the Supreme Court stated in United States v. Dalm, 494 U.S. 596, 602
                                     (1990), ‘‘unless a claim for refund of a tax has been filed within the time
                                     limits imposed by § 6511(a), a suit for refund, regardless of whether the
                                     tax is alleged to have been ‘erroneously,’ ‘illegally,’ or ‘wrongfully collected,’
                                     §§ 1346(a)(1), 7422(a), may not be maintained in any court.’’




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                                     (413)                             SNOW v. COMMISSIONER                                        425


                                     to override the finality of Tax Court decisions, and none of
                                     those reasons exists here.
                                        Finally, even if we had jurisdiction to exercise discretion to
                                     vacate under paragraph (b)(4) or (6), paragraph (c) requires
                                     that such motions be made within a reasonable time. Peti-
                                     tioners’ motions were made almost 8 years after petitioners
                                     received our August 19, 2005, order and a copy of the Special
                                     Trial Judge’s initial report. While petitioners allege that they
                                     immediately began seeking assistance from various quarters,
                                     we find this explanation insufficient to establish that their
                                     motions were filed within a reasonable time as required by
                                     paragraph (c). 10
                                        For the foregoing reasons, we will deny petitioners’
                                     motions for leave to file motions to vacate.
                                                                                     Appropriate orders will be issued.

                                                                                f




                                           10 As
                                              explained supra note 9, the passage of time can prove fatal to relief
                                     even if taxes were erroneously collected.
                                        In petitioners’ proposed motions to vacate they ask this Court to order
                                     the refund of the tax deficiencies that they paid on May 1, 1995. We have
                                     held that we have no jurisdiction over the deficiency determinations in
                                     these cases. Indeed, we would have lacked jurisdiction even if we had
                                     granted petitioners’ motions to dismiss for lack of jurisdiction. Lacking ju-
                                     risdiction over the deficiencies, we have no power to order a refund. See
                                     sec. 6213(a), which provides in pertinent part: ‘‘The Tax Court shall have
                                     no jurisdiction to enjoin any action or proceeding or order any refund
                                     under this subsection unless a timely petition for a redetermination of the
                                     deficiency has been filed and then only in respect of the deficiency that is
                                     the subject of such petition.’’




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