                                                          United States Court of Appeals
                                                                   Fifth Circuit
                                                                F I L E D
                 IN THE UNITED STATES COURT OF APPEALS
                         FOR THE FIFTH CIRCUIT                   June 25, 2007
                          ____________________
                                                            Charles R. Fulbruge III
                             No. 06-60862                           Clerk
                           Summary Calendar
                         ____________________


DANNY Z HILAL

                       Petitioner - Appellant

     v.

COMMISSIONER OF INTERNAL REVENUE

                       Respondent - Appellee

                        ------------------------
                Appeal from the United States Tax Court
                               No. 8563-02
                         ----------------------

Before KING, HIGGINBOTHAM and GARZA, Circuit Judges.

PER CURIAM:*

     Petitioner-appellant Danny Z. Hilal appeals the tax court’s

denial of his motion to set aside the dismissal of his tax case,

arguing that the tax court abused its discretion in denying this

motion.   Because the tax court lacked jurisdiction to vacate its

decision after the decision became final under § 7481 of the

Internal Revenue Code, we AFFIRM.

     On June 17, 2004, the tax court, without objection,

dismissed Hilal’s case for failure to prosecute and entered a

decision sustaining the government’s determination of the tax

     *
        Pursuant to 5TH CIR. R. 47.5, the court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5TH CIR. R.
47.5.4.
due.       On July 16, 2004, Hilal filed a pro se motion to vacate the

order of dismissal and for a new trial, and the tax court

summarily denied that motion.       More than two years later on

August 7, 2006, Hilal filed a motion to set aside the dismissal.

The district court recharacterized the motion as a motion for

leave to file a motion to vacate the order of dismissal and

decision and denied the motion on August 15, 2006.         Hilal

appeals.

       Whether the tax court had jurisdiction to vacate a final

decision is a question of law, which is reviewed de novo.

Harbold v. Comm’r, 51 F.3d 618, 621 (6th Cir. 1995).         Pursuant to

§§ 7481(a) and 7483 of the Internal Revenue Code, in the absence

of a timely appeal from a tax court decision, the decision

becomes final after ninety days.1         I.R.C. §§ 7481(a) and 7483.

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 situations.       Id.   These exceptions to the general rule

“must be construed narrowly” so that the finality of judgments is

       1
        I.R.C. § 7481 provides that “the decision of the Tax
Court shall become final . . . [u]pon the expiration of the time
allowed for filing a notice of appeal, if no such notice has been
duly filed within such time.” The notice of appeal must be filed
“with the clerk of the Tax Court within 90 days after the
decision of the Tax Court is entered.” I.R.C. § 7483.

                                      2
preserved.   Id.   The first exception 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 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 jurisdiction to

vacate its decision on other grounds, including newly discovered

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 argues that the tax court should have jurisdiction to

vacate its decision in his case based on the doctrine of

equitable tolling because in 2004, when the tax court issued its

decision, he was mentally incapacitated.    But the tax court “is a

                                  3
court of limited jurisdiction and lacks general equitable

powers.”   Comm’r v. McCoy, 484 U.S. 3, 7 (1984).

      As support for his argument, Hilal discusses instances in

which the tax court applied the doctrine of equitable tolling for

a statute of limitation, which is what he characterizes § 7481

as.   But this characterization is improper because a statute of

limitations protects potential defendants from stale claims.

Order of R.R. Telegraphers v. Ry. Express Agency, 321 U.S. 342,

348-49 (1944).   That is not the function of § 7481, which

operates only after a decision has been rendered on a timely

claim.   See § 7481.   Section 7481 applies equally to the

government and the taxpayer and prevents the reopening of cases

that have become final.    See id.

      Nor does his argument apply by analogy.   The tax court may

not exercise general equitable powers to assume jurisdiction

where not provided for by statute.    Buchine v. Comm’r, 20 F.3d

173, 177-78 (5th Cir. 1994).    Section 7481 provides the tax court

with jurisdiction to reopen its decision in two very limited

circumstances in (c) and (d).    Neither of those circumstances

applies in this case, and the use of the word “solely” in those

subsections indicates that the tax court may not reopen its final

decisions for other circumstances not specified in the statute.

See § 7481(c), (d).

      No notice of appeal from the tax court’s June 17, 2004

decision was filed within the time limits set forth in § 7483.

                                  4
As a result, under § 7481(a), the tax court’s decision became

final ninety days later, on September 15, 2004.   Hilal does not

contend that any of the three recognized exceptions to the

finality rule applies.   Nor does the doctrine of equitable

tolling give the tax court jurisdiction to vacate its decision.

See Buchine, 20 F.3d at 177-78.   Because Hilal filed his motion

to set aside dismissal almost two years after the decision became

final, the tax court lacked jurisdiction to vacate its decision

and properly denied the motion.   We AFFIRM.




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