                        T.C. Memo. 2005-10



                      UNITED STATES TAX COURT



                 ROBERT T. BREWER, Petitioner v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 10661-02.            Filed January 25, 2005.


     Robert T. Brewer, pro se.

     Thomas A. Friday, for respondent.



                        MEMORANDUM OPINION


     GOEKE, Judge:   This case is before the Court on petitioner’s

motion to vacate a stipulated decision entered on September 13,

2004 (motion to vacate).    Petitioner’s motion to vacate was

timely filed under Rule 1621 on October 12, 2004.   Respondent


     1
      Unless otherwise indicated, all section references are to
the Internal Revenue Code as amended, and all Rule references are
to the Tax Court Rules of Practice and Procedure.
                               - 2 -

filed a response to petitioner’s motion to vacate.   Because

petitioner has not shown that the circumstances of the settlement

warrant our vacating the decision, we shall deny petitioner’s

motion to vacate.

Background

     On April 1, 2002, respondent issued a notice of deficiency

to petitioner determining a deficiency of $58,812 in petitioner’s

1999 Federal income tax.   The notice of deficiency also

determined additions to tax for 1999 under sections 6651(a)(1)

and (2) and 6654(a) of $12,382.65, $4,677.89, and $2,622.75,

respectively.   Respondent issued the notice of deficiency as a

result of petitioner’s failure to timely file his 1999 Federal

income tax return.   On June 24, 2002, petitioner timely filed a

petition challenging respondent’s determination.   In November

2002, petitioner filed his 1999 return.   As a result, petitioner

and respondent were thereafter able to resolve many of the issues

raised in the notice of deficiency.

      This case was calendared for the Court’s trial session in

Mobile, Alabama, beginning on September 7, 2004.   On the morning

of the Court’s calendar call, petitioner and counsel for

respondent, Mr. Friday, met and executed a stipulated decision.

Petitioner and Mr. Friday then appeared before the Court and

informed the Court that a settlement had been reached.     The

stipulated decision was submitted to the Court on September 7,
                              - 3 -

2004, signed by petitioner and Mr. Friday.   On September 13,

2004, the Court entered the stipulated decision.

     The first page of the decision reflects that there is a

deficiency of $4,878 in petitioner’s 1999 Federal income tax and

that petitioner is not liable for any additions to tax.   Page 2

of the decision states:

          It is hereby stipulated that the Court may enter
     the foregoing decision in this case.

          It is further stipulated that interest will be assessed
     as provided by law on the deficiency due from petitioner.

          The above deficiency does not take into account
     withholding credits of $3,778.00 made for the taxable year
     1999 by the petitioner.

          It is further stipulated that, effective upon the entry
     of this decision by the Court, petitioner waives the
     restrictions contained in I.R.C. § 6213(a) prohibiting
     assessment and collection of the deficiency (plus
     statutory interest) until the decision of the Tax Court
     becomes final.

The decision bears the signatures of petitioner and Mr. Friday on

page 2.

Discussion

     Rule 162 allows a party to file a motion to vacate or revise

a decision within 30 days after the decision has been entered,

unless the Court “shall otherwise permit” that 30-day period to

be extended, but Rule 162 does not provide a standard by which

this Court should evaluate a motion to vacate a decision.    Rule
                               - 4 -

1(a), however, provides that 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 of the Federal Rules of Civil Procedure provides

certain circumstances in which a Federal court may vacate or

alter a judgment, order, or other part of the record.   We have

often looked to rule 60 of the Federal Rules of Civil Procedure

to assist us in resolving issues raised in motions to vacate

decisions under Rule 162.   See, e.g., Brannon’s of Shawnee, Inc.

v. Commissioner, 69 T.C. 999, 1001 (1978); Kun v. Commissioner,

T.C. Memo. 2004-273; Estate of Miller v. Commissioner, T.C. Memo.

1994-25.

     Rule 60(a) of the Federal Rules of Civil Procedure provides

that the court may correct clerical mistakes and errors arising

from oversight or omission at any time of its own initiative or

on the motion of a party.   As relevant here, rule 60(b) provides

that, on motion and upon such terms as are just, the court may

relieve a party of a final judgment for

     (1) mistake, inadvertence, surprise, or excusable
     neglect; (2) newly discovered evidence which by due
     diligence could not have been discovered in time to
     move for a new trial under Rule 59(b); (3) fraud * * *,
     misrepresentation, or other misconduct of an adverse
     party; * * * (6) any other reason justifying relief
     from the operation of the judgment. * * *

     In addition, this Court has applied a more stringent

standard in evaluating motions to enter decisions or vacate
                                - 5 -

settlement agreements where, shortly before trial, the parties

agreed to a settlement and caused the vacation of the trial date.

In such cases, we have held the settlements to be enforceable

unless the moving party can show a lack of formal consent,

mistake, fraud, or some similar ground.   See Dorchester Indus.,

Inc. v. Commissioner, 108 T.C. 320, 335 (1997), affd. 208 F.3d

205 (3d Cir. 2000); Stamm Intl. Corp. v. Commissioner, 90 T.C.

315, 321-322 (1988).   We believe that petitioner should be held

to this more stringent standard, rather than that stated in rule

60 of the Federal Rules of Civil Procedure for vacation of

decisions.    Here, the parties reached a settlement shortly before

trial, and the trial date was vacated as a result of that

settlement.   Our subsequent entering of the decision should not

lessen the standard to which petitioner, as the moving party,

must be held.

     Petitioner argues that the decision should be vacated for

various reasons.   First, petitioner objects to the decision

because it does not show that his net tax due is $1,100.    The

$1,100 appears to reflect the difference between petitioner’s

deficiency for 1999 ($4,878), and the amount of petitioner’s

withholding credits for 1999 ($3,778), both of which are shown in

the decision.   Respondent agrees that petitioner’s net tax due

for 1999 is $1,100, excluding interest.   Because petitioner and
                               - 6 -

respondent agree that petitioner’s net tax due is $1,100, this

argument does not require any further discussion.

     Next, petitioner claims that he did not see the first page

of the decision when he signed the decision at the calendar call

because the document he signed was not a stapled 2-page document.

Petitioner asserts that he did not see the first page of the

decision, on which the deficiency amount was shown, until he

received the decision by mail after it had been entered by the

Court.   Even if we accepted this implausible assertion as true,

it would not warrant our vacating the decision.    Even if

petitioner did not see the first page of the decision when he

signed the decision, it was petitioner’s responsibility to know

and understand what he was signing.    The second page of the

decision has a number “2” at the top, and the first words

appearing on that page refer to “the above deficiency”.      Clearly,

this is the second page of a document, and petitioner was free to

refuse to sign it if he was not presented with both pages.

     Petitioner next asserts that his signature on the decision

was “coerced, a product of threats and harassment” by Mr. Friday.

Petitioner’s assertions of threats and harassment are unsupported

even by his own version of the facts surrounding the settlement.

     Lastly, petitioner raises concerns that the interest he will

owe will not be computed correctly, and he objects to his owing

interest for the period between the date he filed his 1999 income
                                 - 7 -

tax return and the date of settlement.     This Court has

jurisdiction over matters involving interest only in limited

circumstances.     Med James, Inc. v. Commissioner, 121 T.C. 147,

152 (2003).     We may determine whether a taxpayer has made an

overpayment of interest or the Secretary has made an underpayment

of interest under section 7481(c)(1) and (2)(A) when:       (1) A

motion to redetermine interest has been filed within 1 year after

the date the decision of the Tax Court becomes final under

section 7481(a); (2) the Secretary has made an assessment under

section 6215 that includes interest; and (3) the taxpayer has

paid the entire amount of the deficiency plus the entire amount

claimed by the Secretary as interest on the deficiency.       Rule

261; sec. 7481(c)(1) and (2)(A); Med James, Inc. v. Commissioner,
supra at 152.    We shall address these requirements in turn.

     First, petitioner has not filed a timely motion for

redetermination under Rule 261; the Tax Court decision in this

case is not yet final.     Secs. 7481(a), 7483; Kenner v.
Commissioner, 387 F.2d 689, 690 (7th Cir. 1968).     Second, section

6601(g) allows respondent to assess interest at any time during

the period within which the tax to which the interest relates may

be collected.     Nothing in the record indicates that the interest

in this case has been assessed for 1999.     Lastly, petitioner has

not demonstrated that he paid any interest.     Therefore, we do not

have jurisdiction to redetermine the interest on petitioner’s

1999 deficiency under section 7481(c).
                                 - 8 -

     In addition, we do not have jurisdiction to abate the

interest on petitioner’s 1999 deficiency.       Under section

6404(h)(1), the Tax Court may review the Secretary’s failure to

abate interest only after the Secretary makes a final

determination not to abate interest.       See also Rule 280(b).

Petitioner has not demonstrated that respondent has made a final

determination with respect to abatement of the interest on

petitioner’s 1999 deficiency.

     To reflect the foregoing,



                                              An order will be issued

                                         denying petitioner’s motion to

                                         vacate the stipulated decision

                                         entered September 13, 2004.
