                          122 T.C. No. 13



                     UNITED STATES TAX COURT



CINEMA ‘84, RICHARD M. GREENBERG, TAX MATTERS PARTNER, Petitioner
         v. COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 621-92.              Filed March 23, 2004.



          In this TEFRA partnership proceeding, the Court
     entered an Order of Dismissal and Decision, and that
     decision was appealed to the Court of Appeals for the
     Second Circuit. The Court of Appeals affirmed in part
     and reversed in part the decision of this Court, and,
     in accord with the mandate, this Court issued an order
     dismissing this case for lack of jurisdiction as to a
     participating partner. The Court’s Order of Dismissal
     and Decision is otherwise final under sec. 7481(a),
     I.R.C.

          M, a partner of the partnership who had not
     previously participated in this proceeding, filed a
     motion for leave to file notice of election to
     participate out of time and lodged with the Court a
     motion to vacate order of dismissal and decision and a
     motion to be appointed tax matters partner.
                               - 2 -

          Held: The motion to vacate was properly submitted
     to this Court, without leave of the Court of Appeals,
     under Standard Oil Co. of Cal. v. United States, 429
     U.S. 17 (1976), and Lydon v. Commissioner, 56 T.C. 128
     (1971), is overruled and will no longer be followed
     because of the Supreme Court decision.

          Held, further, M has not alleged proper grounds
     for vacating a final decision of this Court.

          Held, further, the same standards apply for
     vacating a final decision in a TEFRA proceeding as in a
     deficiency case.



     Thomas E. Redding, for movant Garlon J. Riegler.

     Bradford A. Johnson, for respondent.



                              OPINION


     DAWSON, Judge:   This case was assigned to Special Trial

Judge Carleton D. Powell pursuant to the provisions of section

7443A(b)(5)1 and Rules 180, 181, and 183.   The Court agrees with

and adopts the opinion of the Special Trial Judge set forth

below.

               OPINION OF THE SPECIAL TRIAL JUDGE

     POWELL, Special Trial Judge:   This case is before the Court

on a Motion for Leave to File Notice of Election to Participate

Out of Time filed on behalf of Garlon J. Riegler (movant) on



     1
        Unless otherwise indicated, section references are to the
Internal Revenue Code in effect at relevant times. Rule
references are to the Tax Court Rules of Practice and Procedure.
                                 - 3 -

December 9, 2003.    Together with that motion he lodged with the

Court a Motion to Vacate Order of Dismissal and Decision and a

Motion to be Appointed Tax Matters Partner.

     This case is a so-called TEFRA partnership proceeding under

sections 6221-6233 and involves disallowed deductions claimed

with respect to a motion picture promotion.    The Court held pre-

trial conferences on September 21-22, 1994, and on February 8,

1995.    At those conferences, none of the partners who appeared

indicated a desire to prosecute this case or other similar cases.

Furthermore, there is no active tax matters partner in this case.

     On July 10, 1995, respondent filed a Motion to Dismiss for

Failure to Properly Prosecute.    That motion was held in abeyance

while the Court disposed of potentially dispositive motions

concerning certain partners who had elected to participate.    The

Court disposed of those motions.    See Greenberg Bros. Pship. #4

v. Commissioner, 111 T.C. 198 (1998), affd. in part and revd. in

part sub nom. Cinema ‘84 v. Commissioner, 294 F.3d 432 (2d Cir.

2002).

     This case was calendared for hearing on respondent's Motion

to Dismiss for Failure to Properly Prosecute at the Special

Session of the Court held on July 6, 1999.    The order provided

that “IF THERE IS NO APPEARANCE BY OR ON BEHALF OF A PARTNER WHO

WILL PROSECUTE THIS MATTER, THE COURT WILL DISMISS THIS CASE FOR

FAILURE TO PROPERLY PROSECUTE AND ENTER A DECISION SUSTAINING
                                 - 4 -

RESPONDENT'S DETERMINATION IN FULL.”     The order was served on all

the partners who were still linked to the partnership proceeding.

At the hearing the only appearance was made by counsel for some

of the participating partners who asked the Court to delay the

dismissal for 90 days to determine whether there was any partner

who wished to proceed with the litigation and would become the

tax matters partner.    That time was subsequently extended to

November 4, 1999.   There was no appearance by any partner who

desired to prosecute this case.    On June 23, 2000, respondent

filed a Notice of Consistent Agreement.    By an Order of Dismissal

and Decision entered on September 1, 2000, respondent’s Motion to

Dismiss for Failure to Properly Prosecute filed July 10, 1995,

was granted, and respondent’s determinations of partnership

adjustments for the taxable years 1985, 1986, 1987, 1988, and

1989 were sustained.

     The order of dismissal and decision was appealed with

respect to the Court’s holding that certain partners were not

entitled to a consistent settlement and whether one partner,

Karin M. Locke, was still properly before the Court.    The Court

of Appeals for the Second Circuit affirmed as to the first issue

and reversed as to the second.     Cinema ‘84 v. Commissioner,

supra.   The Mandate of the Court of Appeals for the Second

Circuit was filed May 21, 2002, and no petition for a writ of

certiorari was filed.    On March 24, 2003, the Court issued an
                               - 5 -

order dismissing Karin M. Locke for lack of jurisdiction in

conformity with the Mandate of the Court of Appeals for the

Second Circuit.   The decision of this Court became final on April

23, 2003.   See sec. 7481(a)(3)(B).

     On December 9, 2003, a Motion for Leave to File Notice of

Election to Participate Out of Time (motion for leave) was filed

on behalf of movant.   The motion alleges that movant is a partner

in the Cinema ‘84 partnership and requests that he be appointed

the tax matters partner for the partnership.   With the motion,

movant lodged with the Court a motion to vacate order of

dismissal and decision and a motion to be appointed tax matters

partner.

     The raison d’être of movant’s motion for leave is to have

the Court vacate its decision entered September 1, 2000, that

sustained respondent’s determinations with regard to the taxable

years 1985, 1986, 1987, 1988, and 1989 of Cinema ‘84.   In

resolving the question whether leave should be granted, we must

first decide whether the Court’s decision should be vacated.

That decision was entered September 1, 2000, and modified on

March 24, 2003, pursuant to the Mandate of the Court of Appeals

for the Second Circuit.   With respect to all the partners who had

not previously settled, with the exception of Karin M. Locke, the

Court’s decision was affirmed by the Court of Appeals for the

Second Circuit and is final.
                               - 6 -

1.   Authority of the Tax Court To Vacate a Decision

      While not raised in the motion to vacate lodged with the

Court, the initial question is whether this Court has the

authority to reopen a case where the decision of this Court has

been affirmed, modified, or reversed by the Court of Appeals.     In

Lydon v. Commissioner, 56 T.C. 128 (1971), the Court was faced

with a “Motion for Leave to File a Petition to Reopen Proofs

[sic]” filed after the decision of this Court had been affirmed

by the Court of Appeals.2   The gravamen of the motion was that

the decision of this Court was based on perjured testimony.    We

assumed that the allegation was correct.   Nonetheless, we found

that the motion was “analogous to one filed in a Federal District

Court under Rule 60(b) of the Federal Rules of Civil Procedure”,

id. at 129, and we applied the then majority view “that since the

decided cases reveal that Rule 60(b) * * * does not change the

usual requirement of leave of the appellate court, a fortiori,

such leave is required where, as is the case herein, the Federal

Rules of Civil Procedure are not technically applicable to this

Court”, id. at 131.

      In Transp. Manufacturing & Equip. Co. v. Commissioner, T.C.

Memo. 1971-178, a decision of this Court had been appealed to the




      2
        See Lydon v. Commissioner, T.C. Memo. 1964-27, affd. 351
F.2d 539 (7th Cir. 1965).
                               - 7 -

Court of Appeals for the Eighth Circuit, but taxpayer had not

raised a specific issue on appeal.3    The case was remanded to

this Court on other grounds, and taxpayer sought to have our

original decision vacated as to the issue that had not been

appealed.   This Court, in rejecting taxpayer’s argument, noted:

     decisions of this Court may be reviewed by the Courts
     of Appeals and by those courts alone. In turn,
     judgments of the Courts of Appeals with respect to * *
     * decisions of this Court may be reviewed by the
     Supreme Court and by that Court alone. Our assumption
     of jurisdiction to amend a judgment of the Eighth
     Circuit [in this case] would be, in effect, a review of
     that court’s judgment, and, hence, a transgression not
     only of the traditional jurisdictional limits described
     in William D. Lydon, supra, but also of the statutory
     jurisdictional limits established by section 7482(a).

     The final word on a trial court’s authority to reopen a

decision or judgment after it has been affirmed, modified, or

reversed by a Court of Appeals, however, had not been spoken.     In

Standard Oil Co. of Cal. v. United States, 429 U.S. 17 (1976),

the Supreme Court affirmed the judgment of a lower court.

Subsequently, after the mandate of the Supreme Court was issued,

the corporation moved to recall the mandate and have the lower

court’s judgment set aside under rule 60(b) of the Federal Rules

of Civil Procedure.   The Supreme Court recognized:

     that in the past both this Court and many Courts of
     Appeals have required appellate leave before the
     District Court could reopen a case which had been


     3
        See Transp. Manufacturing & Equip. Co. v. Commissioner,
T.C. Memo. 1968-189, affd. in part and vacated in part 434 F.2d
373 (8th Cir. 1970).
                              - 8 -

     reviewed on appeal. The requirement derived from a
     belief that an appellate court’s mandate bars the trial
     court from later disturbing the judgment entered in
     accordance with the mandate. It has also been argued
     that the appellate-leave requirement protects the
     finality of the judgment and allows the appellate court
     to screen out frivolous Rule 60(b) motions. [Id. at 18;
     fn. ref. and citations omitted.]

The Supreme Court, however, held:

     In our view, the arguments in favor of requiring
     appellate leave are unpersuasive. Like the original
     district court judgment, the appellate mandate relates
     to the record and issues then before the court, and
     does not purport to deal with possible later events.
     Hence, the district judge is not flouting the mandate
     by acting on the motion. Furthermore, the interest in
     finality is no more impaired in this situation than in
     any Rule 60(b) proceeding. Finally, we have confidence
     in the ability of the district courts to recognize
     frivolous Rule 60(b) motions. Indeed, the trial court
     “is in a much better position to pass upon the issues
     presented in a motion pursuant to Rule 60(b)”.

          The appellate-leave requirement adds to the delay
     and expense of litigation and also burdens the
     increasingly scarce time of the federal appellate
     courts. We see no reason to continue the existence of
     this “unnecessary and undesirable clog on the
     proceedings.” [Id. at 18-19; citations omitted.]

     In light of Standard Oil Co. of Cal., we conclude that Lydon

v. Commissioner, supra, and its progeny are no longer viable.       In

Lydon we analogized the situation to that of a district court

under rule 60(b) of the Federal Rules of Civil Procedure and

relied on, inter alia, Hazel-Atlas Co. v. Hartford Co., 322 U.S.

238 (1944), Tribble v. Bruin, 279 F.2d 424 (4th Cir. 1960), and

Home Indem. Co. v. O’Brien, 112 F.2d 387 (6th Cir. 1940).     The
                               - 9 -

reasoning in those cases was specifically rejected by the Supreme

Court in Standard Oil Co. of Cal. v. United States, supra.

     It may be argued that our opinion in Transp. Manufacturing &

Equip. Co. v. Commissioner, supra, also rests on the language of

section 7482(a) and is not governed by the same principles as

cases under rule 60(b) of the Federal Rules of Civil Procedure,

notwithstanding the analogy drawn in Lydon.   Section 7482(a),

however, provides that the review of Tax Court decisions shall be

“in the same manner and to the same extent as decisions of the

district courts in civil actions tried without a jury”.    If a

district court could not entertain a motion to vacate without the

intervention of the Court of Appeals, it would follow that the

Tax Court also cannot, and this was the holding of Lydon and its

progeny.   On the other hand, the converse is that, if the

district courts can entertain motions to vacate, the Tax Court

can do likewise.   Accordingly, because of the Supreme Court’s

holding in Standard Oil Co. of Cal., we will no longer follow the

Lydon case or its progeny.   We hold that the Tax Court has the

authority to act on a motion to vacate a decision that has been

affirmed, reversed, or modified by the Court of Appeals.
                              - 10 -

2.   Standards for Vacating a Final Decision

      Notwithstanding the authority to act on such a motion, the

authority of the Tax Court to vacate a decision that has become

final is limited.   In Taub v. Commissioner, 64 T.C. 741 (1975),

affd. without published opinion 538 F.2d 314 (2d Cir. 1976), the

taxpayer in a deficiency case sought to vacate a decision that

had become final.   We noted that as a general rule the finality

of a decision is absolute.   Id. at 750; see also Lasky v.

Commissioner, 235 F.2d 97 (9th Cir. 1956), affd. per curiam 352

U.S. 1027 (1957); Abatti v. Commissioner, 86 T.C. 1319, 1323

(1986), affd. 859 F.2d 115 (9th Cir. 1988).    We also noted that

“we have jurisdiction to set aside a decision which would

otherwise be final where there is ‘fraud on the court.’”     Taub v.

Commissioner, 64 T.C. at 751 (citing Toscano v. Commissioner, 441

F.2d 930 (9th Cir. 1971)); Kenner v. Commissioner, 387 F.2d 689

(7th Cir. 1968); see also Drobny v. Commissioner, 113 F.3d 670

(7th Cir. 1997), affg. T.C. Memo. 1995-209; Senate Realty Corp.

v. Commissioner, 511 F.2d 929 (2d Cir. 1975).

      In Abeles v. Commissioner, 90 T.C. 103 (1988), this Court

held that it had the authority to vacate an otherwise final

decision in a situation where the Court never acquired
                                - 11 -

jurisdiction over the petitioner.    Accord Billingsley v.

Commissioner, 868 F.2d 1081 (9th Cir. 1989); Brannon’s of

Shawnee, Inc. v. Commissioner, 69 T.C. 999 (1978).

     This Court has also vacated a final decision in the

situation where there was a clerical error in the decision

document that was not discovered until after the decision had

become final.   See Michaels v. Commissioner, 144 F.3d 495 (7th

Cir. 1998), affg. T.C. Memo. 1995-294.4

     The Court of Appeals for the Sixth Circuit held that a final

decision of the Tax Court could be vacated in situations

involving a mutual mistake.     Reo Motors, Inc. v. Commissioner,

219 F.2d 610 (6th Cir. 1955).    However, 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 of Appeals for the Sixth

Circuit would no longer follow the rationale of Reo Motors, Inc.

3. Movant’s Grounds for Vacating the Decision

     Irrespective of which standard of the cases discussed above

is used, movant’s allegations fall far short for purposes of

vacating our decision in this case.      He alleges that the named



     4
        The Court of Appeals for the Eighth Circuit has held that
the Tax Court lacks jurisdiction to vacate a final decision in
the absence of “extraordinary circumstances.” See Ark. Oil &
Gas, Inc. v. Commissioner, 114 F.3d 795, 798 (8th Cir. 1997).
                              - 12 -

tax matters partner (TMP), Richard M. Greenberg, was in

bankruptcy and was disqualified as the TMP.   This is correct.

Movant then asserts that either the Tax Court or respondent

should have appointed a new TMP.   This ignores the fact that,

since 1995, the Court attempted in vain to find a limited partner

who would be willing to serve as the TMP.   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.5

     In concluding, we note that the decided cases regarding

vacating a final decision of the Court involve so-called

deficiency cases rather than TEFRA partnership cases.     The

current section 7481(a) is derived from section 1005(a) of the

Revenue Act of 1926, ch. 27, tit. X, 44 Stat. 10.   The

legislative history states:

     Inasmuch as the statute of limitations upon assessments
     and suits for collection, both of which are suspended
     during review of the Commissioner’s determination,
     commences to run upon the day upon which the Board’s


     5
        Indeed, we note that, putting aside the problem with the
finality of the decision, the movant offers no explanation as to
the reason for his failure to timely move to participate in this
proceeding.
                              - 13 -

     [of Tax Appeals] decision becomes final, it is of
     utmost importance that this time be specified as
     accurately as possible. In some instances in order to
     achieve this result the usual rules of law applicable
     in court procedure must be changed. * * * [S. Rept. 52,
     69th Cong., 1st Sess. (1926), 1939-1 C.B. (Part 2) 332,
     360.]

The legislative history of the TEFRA proceeding specifies that

“The principles of section 7481(a) shall govern in determining

the date on which a court decision becomes final.”    H. Conf.

Rept. 97-760, at 608 (1982), 1982-2 C.B. 600, 666.

     As the Court of Appeals for the Ninth Circuit observed,

Congress in enacting section 7481 “was conscious of the need that

‘finality’ be clearly defined, so that the process of collection

can proceed unimpeded.”   Toscano v. Commissioner, supra at 932.

While this concern is apparent in deficiency cases, its force is

at least as great in TEFRA partnership cases.    The liability of

not just one taxpayer is at stake; rather, it is the liabilities

of potentially all of the partners in the partnership.    Thus, if

we were to vacate a final decision in a TEFRA case, the result

clearly would impede the collection process.    We believe,

therefore, that the reasoning underlying the cases restricting

the vacating of final decisions of this Court applies, perhaps

even more strongly, to partnership cases.

     There are no viable grounds for vacating the final decision

in this case.   Accordingly, granting movant’s motion for leave
                             - 14 -

would be nothing more than an act of futility, and the motion

will be denied.



                                   An order denying the Motion

                              for Leave to File Notice of

                              Election to Participate Out of Time

                              will be issued.
