                       T.C. Memo. 2005-151



                     UNITED STATES TAX COURT



            GEOFFREY K. CALDERONE, SR., Petitioner v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent

                PETER A. CALDERONE, Petitioner v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket Nos. 12253-99, 3240-00.   Filed June 23, 2005.



     John T. Mulhall III, Thomas E. Redding, and Charles E.

Rutherford, for petitioners.1

     John Q. Walsh, Jr., for respondent.




     1
       Petitioners were represented by Arthur Jacob when they
filed their petition. Robert W. Hesselbacher, Jr., entered the
case on July 17, 2001. Mr. Jacob and Mr. Hesselbacher withdrew
on Oct. 14, 2003. Charles E. Rutherford and Mark L. Nowak
entered the case on Oct. 10, 2003. Mr. Nowak withdrew on Dec.
13, 2004. Thomas E. Redding entered the case on Jan. 21, 2004.
John T. Mulhall III entered the case on Mar. 25, 2004.
                               - 2 -

          J purported to form a qualified employee stock
     ownership plan for Ps. R determined deficiencies, and
     J, on behalf of Ps, petitioned this Court. R believed
     J had a conflict of interest under Rule 24(g), Tax
     Court Rules of Practice and Procedure. J informed Ps
     as to his potential conflict of interest, received Ps’
     informed consent to continue representing them in the
     proceeding, and retained H to represent Ps as co-
     counsel. R informed the Court of J’s potential
     conflict of interest during a conference call and in a
     pretrial memorandum. The cases settled before trial,
     decisions were entered, and these decisions are now
     final. Ps move the Court to vacate the decisions,
     asserting primarily that R and J did not adequately
     inform the Court of J’s potential conflict of interest,
     which, in turn, constituted fraud on the Court.
          Held, Ps’ motion will be denied for failure to
     establish a fraud on the Court.



              MEMORANDUM FINDINGS OF FACT AND OPINION


     LARO, Judge:2   Petitioners move the Court for leave to file

a motion under Rule 1623 to vacate the stipulated decisions which

were entered in these cases on February 21, 2002.   The motion

asserts that those decisions were the result of fraud on the

Court.   Following an evidentiary hearing on the substance of

petitioners’ motion, we decide whether petitioners have

established a fraud on the Court sufficient for us to vacate




     2
       These cases were reassigned to Judge David Laro on Aug.
17, 2004, by order of the Chief Judge.
     3
       Unless otherwise noted, Rule references are to the Tax
Court Rules of Practice and Procedure. Section references are to
the applicable versions of the Internal Revenue Code.
                                 - 3 -

those decisions.     We hold they have not and shall deny their

motion.

                           FINDINGS OF FACT

I.      Background

        Some facts were stipulated.   We incorporate herein by this

reference the parties’ stipulation of facts and the exhibits

submitted therewith.     We find the stipulated facts accordingly.

        In May 1979, Geoffrey K. Calderone, Sr. (Geoffrey), and his

brother, Peter A. Calderone (Peter), formed the Maryland

Pennysaver Group, Inc. (MPG).     Geoffrey, who resided in Fort

Lauderdale, Florida, when his petition was filed, was MPG’s

president.    Peter, who resided in Park City, Utah, when his

petition was filed, was MPG’s vice president and secretary.

Before January 5, 1993, Geoffrey and Peter were the only

stockholders of MPG, with Geoffrey owning 51 percent and Peter

owning 49 percent.

        Arthur Jacob (Jacob) is a certified public accountant and

was an attorney in Maryland until he was disbarred on July 22,

2003.    Jacob has known petitioners since he began providing tax

services to MPG in or about 1985 or 1986.     In or about 1992,

petitioners asked Jacob to review an offer from Landmark

Communications, Inc., to buy all of their MPG stock.     Jacob

advised petitioners to reject the offer and, instead, to sell
                                 - 4 -

their MPG stock to an employee stock ownership plan (ESOP)4 which

he would form.     Petitioners accepted this advice and on January

5, 1993, sold their stock to the First Management Co., Inc.

Employee Stock Ownership Plan and Trust (First Management), which

Jacob formed on December 28, 1992.

         Jacob, Geoffrey, Peter, and two of MPG’s longtime

employees, Michael Onorato (Onorato) and Wayne Morgan (Morgan),

participated in the ESOP.     Before forming the ESOP, Jacob sent a

letter to Geoffrey, Peter, Onorato, and Morgan advising them that

his role in the formation of First Management and its subsequent

purchase of stock created a likelihood of potential or perceived

conflicts of interest.     Jacob advised each of the four to seek

the advice of an independent attorney regarding the ESOP.       None

of them did so.

         As part of the consideration for petitioners’ sale of their

MPG stock to First Management, Jacob, as the trustee of First

Management, executed a secured promissory note dated January 5,

1993.     Under the note, First Management promised to pay to

Geoffrey and Peter the principal sum of $13,955,543, plus

interest, in 180 equal monthly installments.     Payments under the

note were made to Jacob, who accepted the payments as the

representative of Geoffrey and Peter.     Petitioners gave Jacob


     4
       We call the underlying plan an “ESOP” for convenience, not
because it met the requirements of sec. 4975(e)(7). The plan, in
fact, did not meet the requirements of sec. 4975(e)(7).
                                 - 5 -

authority to make decisions with respect to the sale proceeds,

potentially millions of dollars.

     Jacob prepared tax returns for petitioners for the relevant

years.   Those returns did not recognize any gain from the sale of

the MPG stock to First Management but included a statement,

entitled “Election to Defer Gain on Sale of Qualified Securities

under Internal Revenue Code Section 1042(a)”, which disclosed the

date and nature of the sale to First Management.     In 1995,

Geoffrey, Peter, and Jacob were notified by the law firm of

Weinberg & Green, LLC, who had previously represented MPG and

were, at that time, representing Morgan and Onorato, that there

were “problems” with the ESOP.

     On July 25, 1995, Geoffrey and Peter entered into an

Amended and Restated Stock Purchase Agreement drafted by Weinberg

& Green, LLC (amended ESOP).   Jacob was not involved in the

drafting of the amended ESOP, but he signed it with Geoffrey and

Peter.   Under the amended ESOP, petitioners agreed that First

Management failed the definition of an ESOP as set forth in

section 4975(e)(7).   Petitioners also agreed that they would, if

necessary, file amended returns to correct the treatment of

payments in prior years insofar as that treatment was

inconsistent with the characterization of the purchase and sale

transactions under the amended ESOP.     As part of the amended

ESOP, the previous promissory note was canceled and was replaced
                                - 6 -

with another secured promissory note in which First Management

promised to pay petitioners the same amount of consideration, on

the same terms, for their shares.    When this new note was paid

off in 1996, Geoffrey reported no gain from the sale on his 1996

Federal income tax return.    Peter did not file a 1996 Federal

income tax return.

II.     Notice of Deficiency and Prior Proceedings

        On April 13, 1999, respondent issued a notice of deficiency

to Geoffrey for 1996, determining a deficiency of $1,952,470, an

addition to tax under section 6651(a)(1) of $477,503.25, and an

accuracy-related penalty under section 6662(a) of $389,466.40.

Respondent determined that the payment on the note in 1996 made

the remaining amount of capital gain, $6,381,649, taxable in

1996.    On July 9, 1999, Geoffrey authorized Jacob to file a

petition with this Court on his behalf as to 1996.

        On December 20, 1999, respondent issued a similar notice of

deficiency to Peter for 1996, determining a deficiency of

$1,965,013, an addition to tax under section 6651(a)(1) of

$478,503, and an addition to tax under section 6654 of $19,834.

That notice determined that the payment in 1996 triggered

recognition of capital gain of $6,156,266.    On March 20, 2000,

Peter authorized Jacob to file a petition with this Court on his

behalf as to 1996.
                                - 7 -

     Thereafter, respondent’s counsel concluded Jacob might be

needed as a witness at trial.   On June 11, 2001, respondent’s

counsel communicated this concern to Jacob through a letter that

referred to Rule 24(g) and rule 3.7 of the Model Rules of

Professional Conduct, and stated that respondent would for those

reasons move the Court to disqualify Jacob under Rule 24(g).

Jacob discussed this letter’s contents with petitioners shortly

after he received it.   He told Geoffrey that respondent wanted

Jacob to testify regarding the formation of the ESOP, but that

any such testimony could be stipulated, obviating the need for

Jacob to testify.   Geoffrey told Jacob that he wanted Jacob to

continue to represent him, and they agreed Jacob would remain.

Jacob also discussed the subject with Peter in June 2001.      He

told Peter that if Jacob had to testify at trial, another lawyer

would have to represent petitioners.    When Peter expressed

concern about this, Jacob said that he would still be involved

and would be directing the progress of the case.    Later in that

month, Jacob advised petitioners that Robert W. Hesselbacher, Jr.

(Hesselbacher), had been retained as co-counsel and would step in

to represent petitioners should Jacob be needed as a witness.       In

June 2001, Jacob secured the informed consent of petitioners to

continue to represent them, notwithstanding any conflict of

interest stemming from his formation of the ESOP.
                                - 8 -

     Following these discussions, Jacob sent a letter to

respondent on June 15, 2001, in which he informed respondent that

he had obtained his clients’ informed consent to obviate any

conflict under Rule 24(g)(1) and that Hesselbacher would be

entering an appearance as co-counsel to resolve any problems that

might arise under Rule 24(g)(3).    Jacob stated that the 1993

transaction might be stipulated, thereby removing any need for

him to testify, but, in the event he could no longer represent

petitioners under Rule 24(g), he would immediately withdraw his

appearance.   Copies of this letter were sent to Hesselbacher and

to petitioners.    During 2001, respondent and Jacob exchanged

numerous correspondence and discovery documents, all of which

were provided to petitioners by Jacob.

     In or about June 2001, respondent’s counsel contacted their

National Office for guidance on how to deal with the Rule 24(g)

issues in these cases.    The National Office responded that Jacob

could continue to represent petitioners, with the understanding

that, in the event he was called as a witness, he would withdraw

and Hesselbacher would try the case.

     On July 17, 2001, Hesselbacher entered his appearance as

co-counsel for petitioners.    Geoffrey knew that Hesselbacher was

representing him.    Jacob asked Hesselbacher to become familiar

with the cases so that, if the need arose, he could take over as

trial counsel.    As of July 23, 2001, respondent started
                                 - 9 -

corresponding with Hesselbacher regarding the cases, even sending

Hesselbacher an outline of respondent’s interpretation of the

transactions at issue so Hesselbacher would be familiar with the

issues in the case.     Sometime in September 2001, Hesselbacher

went to Jacob’s office and spent time to get familiar with

Jacob’s voluminous files.

         Thereafter, respondent’s counsel concluded that Jacob would

be a necessary witness at trial, informed Jacob of this fact, and

asked Jacob if he would withdraw from the case voluntarily.     On

September 6, 2001, Jacob sent a letter to respondent in which he

again confirmed his intention to withdraw from the cases “when

the circumstances warrant”; copies of this letter were sent to

petitioners and to Hesselbacher.     On September 13, 2001,

respondent’s counsel, Jacob, and Hesselbacher participated in a

conference call with the Court.     Respondent’s counsel did not

advise the Court during this call that Jacob was going to be

called as a witness at trial, since respondent’s counsel was

awaiting the necessary approval from the National Office to file

a motion to disqualify Jacob.5

         On September 17, 2001, the Court set the trial for October

24, 2001, during the Court’s Baltimore session.     Also on

September 17, 2001, Jacob sent a letter to respondent stating


     5
       Respondent’s counsel had recently drafted such a motion
and sent it to the National Office with a request for approval to
file it with the Court.
                               - 10 -

that he would withdraw as counsel; copies of this letter were

sent to petitioners and to Hesselbacher.    On September 19, 2001,

Jacob sent another letter to respondent in which he indicated

petitioners’ desire to settle their cases, but stated again that

if settlement could not be reached, he would withdraw.

     On September 25, 2001, the Court held another conference

call with all counsel.    At that time, respondent’s counsel

informed the Court that Jacob had been involved in planning the

transaction, that he was a necessary witness whom they

anticipated calling at trial, and that they were preparing to

file a motion under Rule 24(g) to disqualify him.    The Court

indicated that any such motion, if filed, would be heard at the

calendar call.    On September 25, 2001, following the conference

call, respondent and Jacob discussed settling the cases, and

respondent faxed to Jacob drafts of a proposed stipulation of

settled issues for each of the cases.    The next day, Jacob sent a

letter to respondent in which he acknowledged receipt of the

proposed stipulations of settled issues and requested some

changes; copies of this letter were sent to petitioners and to

Hesselbacher.    Geoffrey received a copy of this letter.

     On September 26, 2001, counsel for the parties reached a

tentative basis for settlement, of which they informed the Court

during a conference call held later that day.    Hesselbacher and
                              - 11 -

Jacob were involved in the settlement negotiations that resulted

in the settlement of the cases.

     On October 1, 2001, respondent sent a letter to Jacob which

enclosed drafts of a proposed stipulation of settled issues for

each case.   On October 5, 2001, respondent’s counsel submitted to

the Court a trial memorandum for these cases.   That trial

memorandum stated that respondent anticipated calling Jacob as a

witness and that Jacob, if called, would testify “about how he

set up the transaction for petitioners to sell their stock”.

The trial memorandum also stated as an evidentiary problem:

     Respondent intends to call Arthur Jacob as a witness.
     Mr. Jacob is petitioners’ counsel of record. Mr. Jacob
     told respondent’s counsel that he would file a motion
     to withdraw as petitioners’ counsel. If Mr. Jacob does
     not file a motion to withdraw, respondent intends to
     file a motion that the Court disqualify Mr. Jacob as
     petitioners’ counsel under Tax Court Rule 24(g).

     As part of a letter dated October 11, 2001, Jacob enclosed a

signed stipulation for each case; copies were sent to petitioners

and to Hesselbacher.   The stipulations of settled issues were

executed on behalf of respondent on October 16, 2001, and filed

with the Court on October 17, 2001.

     In November 2001, Jacob sent several letters to respondent,

each of which stated that petitioners’ cases had been settled;

copies of these letters were sent to petitioners.   In December

2001, Jacob sent two letters to respondent which made reference

to decision documents to be filed; copies of these two letters
                              - 12 -

were sent to petitioners.   On December 26, 2001, Jacob sent a

letter to each petitioner which referenced his case and stated

that Jacob had received “the last of the requisite documents from

the Internal Revenue Service wrapping up the nine-year mess

related to * * * [your] sale of Pennysaver.”   Petitioners each

received a copy of this letter, and both understood from this

letter that the cases pending before this Court were being

resolved.

     On January 28, 2002, Jacob sent a letter to respondent,

enclosing executed decision documents for both cases; copies of

this letter and the decision documents were sent to petitioners

and to Hesselbacher.   On February 7, 2002, the Court ordered the

parties to file status reports on or before February 21, 2002.

Jacob sent a letter dated February 8, 2002, in response to the

order in which he advised the Court that he had signed decision

documents and returned them to respondent; copies of this letter

were sent to petitioners.

     On February 21, 2002, the stipulated decisions were entered

by the Court.   Those decisions found Geoffrey liable for a 1996

tax deficiency of $1,695,600 and related penalties totaling

$408,411, together with related interest on both amounts; Peter

was found liable for a 1996 tax deficiency of $1,639,157 and

related penalties totaling $416,562.25, together with related

interest on both amounts.
                              - 13 -

III. Subsequent Proceedings

     On September 9, 2002, petitioners retained another attorney,

Mark L. Nowak (Nowak), to represent them with respect to these

cases.   In September 2002, Nowak learned about the stipulated

decisions that had been entered.   In September 2002, Nowak was

not aware of any basis for challenging the underlying tax

liabilities as set forth in the decisions.

     On or about September 23, 2002, petitioners filed in the

Circuit Court of Baltimore County a lawsuit against Jacob (and

others), alleging among other things malpractice by Jacob arising

in part from the transactions at issue.   Nowak helped prepare the

complaint in that lawsuit, and his law firm, Rutherford Mulhall,

P.A., represented petitioners.   Petitioners and Jacob reached a

basis for settlement in that matter whereby Jacob agreed to pay

petitioners a total of $2.9 million.

                              OPINION

     Petitioners request permission to move the Court under Rule

162 to vacate the stipulated final decisions.   That Rule provides

that any motion to vacate a decision shall be filed within 30

days after the decision was entered, “unless the Court shall

otherwise permit.”   Where the taxpayers file such a motion after

the Court’s decision has become final, our authority to vacate

the decision, though limited, may be exercised in situations

where the taxpayers establish the existence of a fraud on the
                               - 14 -

Court.    Cinema ‘84 v. Commissioner, 122 T.C. 264, 270 (2004).

Fraud on the Court is a fraud which harms the integrity of the

judicial process.    Hazel-Atlas Glass Co. v. Hartford-Empire Co.,

322 U.S. 238, 245 (1944), Standard Oil Co. of California v.

United States, 429 U.S. 17 (1976).      Petitioners bear a heavy

burden of establishing specific facts to show “a convincing case

of palpable fraud on the court”.     Kenner v. Commissioner, 387

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

     Petitioners primarily argue that Jacob and respondent’s

counsel committed a fraud on the Court by not appropriately

informing the Court that there were problems under Rule 24(g)(1)

with Jacob’s continued representation of petitioners.6     According


     6
         Rule 24(g) provides, in relevant part:

          (g) Conflict of Interest: If any counsel of
     record (1) was involved in planning or promoting a
     transaction or operating an entity that is connected to
     any issue in a case * * * or (3) is a potential witness
     in a case, then such counsel must either secure the
     informed consent of the client (but only as to items
     (1) and (2)); withdraw from the case; or take whatever
     other steps are necessary to obviate a conflict of
     interest or other violation of the ABA Model Rules of
     Professional Conduct, and particularly Rules 1.7, 1.8,
     and 3.7 thereof. * * *

This Rule became effective, as Rule 24(f), on July 1, 1990. It
was subsequently redesignated Rule 24(g) in an amendment which
became effective on Aug. 1, 1998. When the Court adopted Rule
24(f), the precursor to Rule 24(g), we noted:

          Paragraph (f) of Rule 24 is new. It has been
     added because the Court is concerned about the
     integrity of its decisions. All too frequently a
                                                    (continued...)
                              - 15 -

to petitioners, Jacob was the architect of the ESOP and, as such,

was precluded by Rule 24(g)(1) from representing them.

Petitioners also assert that Jacob was a potential witness who

was precluded from representing them by Rule 24(g)(3).

     On the basis of the record at hand, we reject petitioners’

primary argument.   Contrary to petitioners’ assertions, the Court

was informed on two occasions by respondent as to an issue

involving Jacob and Rule 24(g).   First, respondent informed the

Court on September 25, 2001, that there were problems under Rule

24(g) with Jacob’s representation.     Second, respondent informed

the Court in his pretrial memorandum, filed October 5, 2001, that

there were potential problems under Rule 24(g)(1) and (3) with

Jacob’s representation.   As petitioners correctly state, a

necessary element of fraud on the Court is the Court’s lack of

knowledge regarding a material fact so that “damage to the

judicial process is sustained.”   Spence-Parker v. Md. Ins. Group,

937 F. Supp. 551, 562 (E.D. Va. 1996).    In Spence-Parker, the

plaintiff sued the defendant insurance company, alleging that she

was entitled to recover under an insurance policy issued by the

defendant to a third party.   In a prior action against the third


     6
      (...continued)
     disappointed party challenges a decision on the ground
     that the party’s prior counsel had a conflict of
     interest. Paragraph (f) is designed to insure that the
     bar of this Court disclose or rectify any conflict of
     interest. [93 T.C. 858.]
                                - 16 -

party, counsel for the third party had secretly negotiated a deal

with the plaintiff whereby the third party would “settle” the

case for $3.5 million and assign its rights to sue the insurance

company, in exchange for plaintiff’s agreeing to not collect from

the third party.    When the plaintiff sued the insurance company

and moved for summary judgment, the insurance company moved to

set aside the previous judgment on the grounds that the court

before which the earlier lawsuit was brought was not informed of

the facts underlying the settlement and would not have approved

it had the court been so aware.      The court in Spence-Parker

agreed, holding that such concealment constituted damage to the

judicial system in that the court in the earlier lawsuit would

not have approved the settlement had it been fully informed of

the facts.    Id.   In contrast to Spence-Parker, the Court did not

lack knowledge of a material fact so as to damage the judicial

process when it approved the settlement in these cases.

     Petitioners argue in the alternative that respondent’s and

Jacob’s overall conduct in these cases constituted fraud on the

Court.    We reject this argument.   Petitioners note in their brief

that “allegations that one’s attorney was grossly negligent or

lacked authority are insufficient to demonstrate fraud upon the

Court.”    Petitioners attempt to circumvent this rule by asserting

that Jacob’s conduct was deceitful and unethical, primarily on

the basis of Jacob’s involvement in the cases while under Rule
                                - 17 -

24(g) conflicts of interest.    We find this attempt unavailing.

On the records at hand, we do not find any violation of Rule

24(g) that rises to the level of fraud on the Court.

A.   Rule 24(g)(1)

     Rule 24(g) provides that an attorney’s conflict of interest

under Rule 24(g)(1) may be waived by the informed consent of his

or her client.   It is one of our common law’s oldest principles

that silence and acquiescence by the client constitutes

ratification and adoption of an agent’s actions or

representations.     See, e.g., Feild v. Farrington, 77 U.S. 141,

146 (1870); Lone Star Life Ins. Co. v. Commissioner, T.C. Memo.

1997-465.   The credible evidence in this case establishes that

Jacob kept his clients informed of his actions and that he

advised them regarding his conflict of interest under Rule

24(g)(1).   The credible evidence also establishes, and we have

found as a fact, that both petitioners gave Jacob their informed

consent to continue representing them notwithstanding his

involvement with the ESOP.    Both petitioners recalled discussing

this issue with Jacob, and they were sent copies of all Jacob’s

correspondence regarding the cases.      In fact, Jacob even sent

petitioners copies of a letter in which he represented to

respondent that he had obtained their informed consent to

continue with the representation.    While petitioners claim they

never received this letter, we find that claim incredible.
                                - 18 -

Petitioners admitted to receiving many of the other letters and

documents which Jacob sent to them.      Jacob also copied

Hesselbacher on all correspondence after he was retained to

protect the petitioners interests; Hesselbacher received this

correspondence.    Petitioners also admitted that they were aware

Jacob might not be able to try the cases due to a conflict of

interest and that Jacob had retained Hesselbacher to represent

them at trial in the event Jacob could not.

B.   Rule 24(g)(3)

     Where an attorney may “potentially be called as a witness”,

Rule 24(g) requires that the attorney either withdraw or “take

whatever other steps are necessary to obviate a conflict of

interest or other violation of the ABA Model Rules of

Professional Conduct * * * [rule] 3.7”.      In contrast to Rule

24(g)(1), Rule 24(g)(3) cannot be satisfied by obtaining the

informed consent of the client.

     As early as June 2001, respondent and Jacob were aware that

Jacob might be called as a witness at trial and made efforts to

satisfy Rule 24(g)(3).     Respondent and Jacob exchanged extensive

correspondence on the issue, culminating in the retention of

Hesselbacher.     Jacob also undertook efforts to stipulate any

testimony from him that respondent deemed necessary.      We conclude

that Jacob took sufficient steps to “obviate a conflict of
                               - 19 -

interest or other violation of the ABA Model Rules of

Professional Conduct * * * [rule] 3.7”.     See Rule 24(g).

                    ____________________________

     We conclude that petitioners have not met their burden of

introducing evidence as to specific and credible facts which

would lead us to conclude that a fraud was perpetrated which

“[subverted] the integrity of the court”.     In re Intermagnetics

Am., Inc. 926 F.2d 912, 916 (9th Cir. 1991).

     In so concluding, we note a split of authority between two

Courts of Appeals as to whether prejudice is a necessary element

of fraud on the Court.    Compare Dixon v. Commissioner, 316 F.3d

1041, 1046 (9th Cir. 2003), revg. T.C. Memo. 1999-101, with

Drobny v. Commissioner, 113 F.3d 670 (7th Cir. 1997), affg. T.C.

Memo. 1995-209.    Without deciding that prejudice is an element of

proving fraud on the Court, we find that petitioners have not

established facts proving prejudice.    On the contrary,

petitioners were represented by independent counsel, as well as

by Jacob.    We could not find prejudice given the presence of

Hesselbacher.   We therefore hold that petitioners have failed to

meet their burden of showing a fraud on the Court sufficient to

set aside a decision entered over 1½ years before they moved to

vacate it.   We have considered all of the arguments of the
                             - 20 -

parties and have rejected those not discussed herein as

meritless.   Accordingly,


                                           An appropriate order

                                      will be issued denying

                                      petitioners’ motion.
