                                                     [DO NOT PUBLISH]

           IN THE UNITED STATES COURT OF APPEALS

                 FOR THE ELEVENTH CIRCUIT           FILED
                  ________________________ U.S. COURT OF APPEALS
                                                     ELEVENTH CIRCUIT
                                                        OCT 13, 2006
                         No. 05-15468
                                                      THOMAS K. KAHN
                   ________________________
                                                          CLERK

                      Tax Court No. 3240-00

PETER A. CALDERONE,
                                                Petitioner-Appellant,

                              versus

COMMISSIONER OF INTERNAL REVENUE,
                                                Respondent-Appellee.

                   ________________________

                          No. 05-15469
                   ________________________
                     Tax Court No. 12253-99

GEOFFREY K. CALDERONE, SR.,
                                                Petitioner-Appellant,

                              versus

COMMISSIONER OF INTERNAL REVENUE,
                                                Respondent-Appellee.

                   ________________________

                 Appeals from the Decisions of the
                     United States Tax Court
                  _________________________

                       (October 13, 2006)
Before BLACK and HULL, Circuit Judges, and CONWAY,* District Judge.

PER CURIAM:

       Appellants Geoffrey K. Calderone, Sr., and his brother, Peter A. Calderone,

contend the U.S. Tax Court abused its discretion when it denied their October

2003 motion for leave to file a motion to vacate the Tax Court’s February 2002

stipulated final decisions.1 Specifically, Appellants argue these stipulated final

decisions resulted from fraud on the court by their former attorney, Arthur Jacob,

and the Commissioner’s attorneys, David Weiner and David Conrad. This Circuit

has not recognized fraud on the court as a ground for vacating a tax court’s final

decision. We need not reach the issue in this case. The Tax Court did not abuse

its discretion because the record and relevant case law supports its finding that no

fraud on the court occurred. See 89 T.C.M. (CCH) 1479 (2005); see also

Davenport Recycling Assocs v. Comm’r, 220 F.3d 1255, 1262 (11th Cir. 2000)




       *
         Honorable Anne C. Conway, United States District Judge for the Middle District of
Florida, sitting by designation.
       1
          Appellants also assert the Tax Court (1) abused its discretion when it denied their
December 2004 motion for leave to amend their October 2003 motion to include a request for
relief under Federal Rule of Civil Procedure 60(b), and (2) clearly erred in reaching several
findings of fact. We disagree. Given Appellants’ failure to make their December 2004 motion
until the day of the evidentiary hearing, we conclude the Tax Court did not abuse its discretion in
denying the motion. Additionally, after reviewing the record, we determine the Tax Court had
ample evidence to support the challenged findings.

                                                 2
(holding, based on the totality of the facts, the Tax Court did not abuse its

discretion in rejecting the appellants’ fraud-on-the-court claim).

      AFFIRMED.




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