IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 16-60583

Summary Calendar

MARK Y. LIU; GINGER Y. BIAN, 

 Petitioners - Appellants

v.

COMMISSIONER OF INTERNAL REVENUE, 

 Respondent - Appellee

Appeal from a Decision of the 

United States Tax Court

TC No. 16841-14

Before STEWART, Chief Judge, and JOLLY and JONES, Circuit Judges.

PER CURIAM:*

Several months after the U.S. Tax Court entered a decision incorporating 

an agreement between Petitioners-Appellants Mark Y. Liu and Ginger Y. Bian

(the “Taxpayers”) and the IRS Commissioner, Taxpayers filed a motion to vacate 

the decision, alleging it was procured by fraud. The U.S. Tax Court, finding no 

 

* 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.

United States Court of Appeals

Fifth Circuit

FILED

May 3, 2017

Lyle W. Cayce

Clerk

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evidence of fraud, dismissed the case. Taxpayers timely appealed. Finding no 

abuse of discretion, we AFFIRM.

I. BACKGROUND & PROCEDURAL HISTORY

On July 18, 2014,1 Taxpayers, filing pro se, challenged a notice of 

deficiency they received for their 2011 tax filings. Thereafter, on August 28, 

2014, Derek B. Matta, the attorney Taxpayers hired to represent them, filed 

an amended petition on Taxpayers’ behalf. Only two days later, Taxpayers 

filed, pro se, a “Motion to Close Petition,” stating that they “d[id] not want to 

contest the Notice of Deficiency for the taxable year 2011 in this Court and 

agree to pay for the increase in tax.” 

On September 15, 2014, Taxpayers filed a document styled 

“Ra[t]ification of Petition,” wherein they claimed the August 28, 2014 amended 

petition “was filed by [their] former counsel . . . without [their] knowledge” and 

that they had fired Mr. Matta on August 30, 2014. The letter further stated 

that Taxpayers “[would] not contest the Notice of Deficiency in principle for the 

taxable year 2011” and that they had “reached a settlement of a [fifty percent] 

waiver of the penalties [owed],” referencing a phone conversation Taxpayers 

had had with Ashley Vaughn Targac, who represented the Commissioner of 

Internal Revenue. On October 2, 2014, the Tax Court entered a stipulated 

decision incorporating Taxpayers’ agreement with Ms. Targac, which 

Taxpayers had signed on September 24, 2014, and Ms. Targac had signed on 

 

1 This case has a somewhat unorthodox procedural posture. Taxpayers initially brought the 

case before the Tax Court on April 17, 2014. Because Taxpayers had not yet received a notice of 

deficiency for 2011, however, the Commissioner filed a motion to dismiss the petition for want of 

jurisdiction. Taxpayers filed a response on July 18, 2014, attaching a notice of deficiency for their 

2011 tax filings. Because the notice was dated May 5, 2014, eighteen days after Taxpayers first 

challenged their tax liability, the Tax Court entered an order directing the Clerk to accept Taxpayers’ 

response “as an imperfect petition to commence the case at docket No. 16841-14.” 

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September 26, 2014. The decision became final ninety days later, in 

accordance with 26 U.S.C. §§ 7481(a)(1) and 7483.

Over eighteen months later, on April 13, 2016, Taxpayers filed a “Motion 

to Vacate Decision” with the Tax Court, alleging that they had received “[three] 

Notice[s] of Levy for the tax year 2011,” which they alleged “reopened the 

case.”2 In their motion, which the Tax Court restyled as a motion for leave to 

file out of time, Taxpayers averred that they had “discovered new evidence of 

misconduct[], fraud, abuse, conspiracy[,] and conflicts of interest between 

[their] attorney[,] Derek M. Matta[,] and the IRS attorney, Ashley Targac.” 

Specifically, Taxpayers alleged that because Ms. Targac and Mr. Matta “were 

colleagues for many years at the IRS Houston Office” and that Mr. Matta had 

overseen the “whistleblower case” Mr. Liu brought against his former employer

in 2005 and 2006, Ms. Targac and Mr. Matta had colluded to commit fraud on 

the Tax Court. Therefore, because “Mr. Matta [had] betrayed [them] by 

working for the opposing party, . . . [they] had no choice but to fire him . . . and 

sign[] the settlement agreement with Ms. [] Targac, who threatened to take the 

case to trial.” Following a hearing, the Tax Court denied the motion on June 

2, 2016. Taxpayers timely appealed.

II. DISCUSSION

This court reviews the Tax Court’s denial of leave to file a motion to 

vacate for abuse of discretion. See Williams v. Commissioner, 145 F.3d 360, 

360 (5th Cir. 1998) (citing Westbrook v. Commissioner, 68 F.3d 868, 874 (5th 

Cir. 1995)); see also Davenport Recycling Assocs. v. Commissioner, 220 F.3d 

1255, 1259 (11th Cir. 2000). Except for a few narrow exceptions, once the Tax 

 

2 According to Ms. Targac, Taxpayers received these notices because, although they had paid 

their penalty, they were “being billed for the interest on the deficiency that accrued from the date that 

. . . the payment should have been made until the date of actual payment.” 

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Court’s judgment becomes final, the Tax Court lacks jurisdiction to vacate its

decision. Hilal v. Commissioner, 237 F. App’x 932, 933 (5th Cir. 2007) (citing 

Davenport Recycling Assocs., 220 F.3d at 1259). “This court . . . may reverse a 

discretionary denial by the Tax Court of post-opinion motions only if there are 

shown to be ‘extraordinary circumstances’ justifying reversal.” Williams, 145 

F.3d at 360 (quoting Wilson v. Commissioner, 500 F.2d 645, 648 (2d Cir. 1974) 

(citation omitted)).

On appeal, Taxpayers essentially argue that because of Mr. Matta’s ties 

to Ms. Targac and his past involvement with Mr. Liu in a separate case, Mr. 

Matta “tricked” Taxpayers into accepting the settlement agreement’s terms, 

which they aver constitutes fraud on the court. It is apparent from the record, 

however, that Taxpayers have presented no evidence of fraud. The settlement 

Taxpayers now challenge is one they, not Mr. Matta, negotiated with Ms. 

Targac. Moreover, both Mr. Liu and Ms. Bian signed the agreement several 

weeks after they ended Mr. Matta’s employment with them. Accordingly, the 

Tax Court did not abuse its discretion in denying Taxpayers leave to file a 

motion to vacate the Tax Court’s decision incorporating the settlement 

agreement.

III. CONCLUSION

For the reasons stated above, we AFFIRM the Tax Court’s judgment in full.

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