United States Court of Appeals FOR THE EIGHTH CIRCUIT

___________ No. 96-3024

___________ Arkansas Oil and Gas, Inc., *
* Appellant, *
* v. *
* Commissioner of Internal Revenue, *
* Appellee. *

__________ Appeals from the No. 96-3025 United States Tax Court.

__________ Dale S. Braden, *
* Appellant, *
* v. *
* Commissioner of Internal Revenue, *
* Appellee. *-2-

__________ No. 96-3026

__________ Arkansas Leasing Service, Inc., *
* Appellant, *
* v. *
* Commissioner of Internal Revenue, *
* Appellee. *

___________ Submitted: April 14, 1997 Filed: June 11, 1997

___________ Before LOKEN, JOHN R. GIBSON, and MAGILL, Cir cuit Judges.

___________ MAGILL, Circuit Judge.
The Commissioner of the Internal Revenue Servic e (Co mmissioner) issued notices of federal income ta x defi ciencies and penalties to Arkansas Oil & Gas, Inc

. (Ark ansas Oil & Gas), Arkansas Leasing Service, Inc

. (Arkansas Leasing), and Dale S. Braden (colle ctively, the taxpayers). Braden, an attorney who specializes in oi l and gas matters, is the sole stockholder of b oth Arkansas Oil & Gas and Arkansas Leasing. Each of the taxpayers , through their counsel, Stephen E. Adams, filed a timel y petiti on in the tax court for a redetermination of th e asse rted tax deficiencies and penalties. After th e taxpayers failed to prosecute their claims an d after they-3-

failed to appear at trial, the tax court dismissed th e taxpayers’ petitions for failure to prosecute an d sustained the Commissioner’s determinations of ta x deficiencies and penalties for each- 4 -

taxpa yer. The taxpayers did not timely appeal thi s dismissal, but instead filed motions with the tax cour t requesting that the tax court vacate its dism issal orders and reopen their cases. The tax court denied th e taxp ayers’ motions to vacate, and the taxpayers appea l this denial. Because the tax court lacks jur isdiction to hear the m otions brought by the taxpayers, we vacate the tax court’s denial of the taxpayers’ motions to vacate.

I.
In December 1992, th e Commissioner issued notices of federal in come tax deficiencies and penalties to each of the taxpayers, asserting numerous tax deficiencies an d penalties for various years from 1980 through 1988. The asserted tax deficiencies and penalties total ed more than $1.2 million. The Commissioner sought these deficiencies and penalties on the ground that the taxpayers ha d engaged in tax evasion and fraud.

The taxpayers chose Adams, an attorney certified t o practice b efore the tax court, to represent them in this matter. I n response to the Commissioner’s notices, each of the tax payers, through Adams, filed a timely petition in the tax court on March 29, 1993, for a red etermination of the tax deficiencies and penalties.

Ac cording to the taxpayers, sometime between Marc h 29, 1993, and June 1993, Adams began to suffer fro m severe and debilitating psychological problems tha t prevented him from prosecuting the taxpayers ’ redetermination claims. During the period from June 4 , 1993, the date on which the Commissioner file d answers to- 5 -

the taxpayers’ petitions, through March 21, 1994, th e date on which the taxpayers’ petitions were set fo r trial, neither the taxpayers nor Adams replied to th e Commissioner’s answers to the taxpayers’ petitions

. Furthermore, neither t he taxpayers nor Adams responded to numerous moti ons, requests, and telephone calls made by th e Commi ssioner. Finally, neither the taxpayers nor Adams conducte d disc overy, responded to numerous orders entered by th e tax court, or appeared at the- 6 -

Mar ch 21, 1994 trial of their cases. The taxpayer s failed to take action during this period notwithstanding tha t Adams was duly notified of each of the variou s motions and orders and notwithstanding that t he tax court sent several notices to Adams, warning him that failur e to appear might result in the dismissal of th e taxpayers’ petitions and entry of decisions for the Commissioner.
Despite Adams’s alleged psychological problems durin g this period, he remained a member of the bar until a t least April 19, 1996. On April 1, 1994, and April 24 , 1996, Adams’s office acknowledged receipt of document s reg arding the taxpayers that had been sent by th e Commission er via certified mail. Moreover, according to the Commissioner, none of the correspondence sent t o Adams was ever returned.

On October 31, 1994, the tax court entered orders , dism issing each of the taxpayers’ petitions for failur e to p rosecute as well as sustaining the Commissioner’ s deter minations of federal income tax deficiencies an d pena lties. The tax court concluded that the taxpayer s had “clearly indicated, as shown by [their] conduct an d the ov erall record in this case, that [they] no longe r wishe[d ] to contest any issue involved in this case. ” Arkan sas Oil & Gas Mem. Op. (Oct. 11, 1994) at 7 , reprinted inAppellant’s Add. at 8; Braden Me m. Op. (Oct. 11, 1994) at 6, reprinted in Appellant’s Add. a

t 23 ; Arkansas Leasing Mem. Op. (O ct. 11, 1994) at 6, reprinted inAppellant’s Add. at 38

. With respe ct to the proposed deficiencies and penalties, the tax co urt held that, “[i]n light of the record taken
as a whole and reasonable inferences therefrom, we no w find that the facts in this case show, by clear an d- 7 -

convi ncing evidence, that [the taxpayers] intended t o evade taxe s known to be owing for the tax years at issue by c onduct intended to conceal, mislead, or otherwis e preve nt the collection of taxes.” Arkansas Oil & Ga s Mem. Op. at 14, reprinted in Appellant’s Add. at 15 ; Braden Mem. Op. at 29 , reprinted inAppellant’s Add. at 8 ; Arkansas Leasing Mem. Op. at 13 , r eprinted inAppellant’s Add. at 45 . Notices of the Octobe r 31, 1994 orders were sent to Adams.- 8 -

Although Braden “sta yed in contact with Mr. Adams on a[n] as needed basis,” Dale S. Braden Aff. (Feb. 29 , 1996) at 1, reprinted inArkansas Oil & Gas A pp. at 249C, the taxpayers allege that Adams never advised th e taxp ayers of his psychological problems and that th e taxpayers did not immediately learn of Adams’s inability and comple te failure to prosecute their claims. Indeed,
acco rding to Braden, the taxpayers “first had knowledg e of a pr oblem when [Braden] began receiving notices o f Inte rnal Revenue Service assessments.” Id. at 2 , reprinted in Arkansas Oil & Gas’s App. at 249D. Th e firs t such notice that Braden received was dated Marc h 29, 1 995, nearly two years after the onset of Adams’ s alleged psychological problems. Id. Thus, by the tim e Braden received the March 29, 1995 notice of assessmen t from the C ommissioner, the tax court had already entered its October 31, 1994 judgment against the taxpayers.
Nearly one year after Braden received the March 29 , 199 5 notice of assessment from the IRS, each of th e taxpayers filed a motion to vacate the tax court’ s adverse judgment as well as a motion to reopen each o f their respective cases. Braden and Arkansas Oil & Ga s filed their motions to vacate and reopen on March 19 , 1996. Arkansas Leasing filed its motions on March 22 , 1996. In support of their motions to vacate, the taxpayers claim ed that the Commissioner and the tax court violated th e taxpayers’ due process rights by failing to inform the m of Adams’s “constructive disappearance.” See Arkansa s Oil & Gas Mot. to Vacate (Mar. 19, 1996) at ¶ 2 , reprinted in Arkansas Oil & Gas App. at 234; Braden Mot. to Va cate (Mar. 19, 1996) at ¶ 2, reprinted in Brade n- 9 -

App. a t 242; Arkansas Leasing Mot. to Vacate (Mar. 22 , 1996) at ¶ 2, reprinted in Arkansas Leasing App. at 174. The taxpayers also claimed that the Commissioner shoul d have notified them directly of its adverse de cision after it b ecame “obvious that counsel was not properl y representi ng” the taxpayers. Arkansas Oil & Gas Mot. to Vacat e at ¶ 3, reprinted in Arkansas Oil & Gas App. a t 234; Braden Mot. to Vacate at ¶ 3, reprinted in Brade n App. at 242; Arkansas Leasing Mot. to Vacate at ¶ 3 , reprinted in Arkansas Leasing App. at 174. However, the taxpayers neither claimed nor presented anyThe taxpayers appeal only from the tax court’s May 16, 1996 orders. They do 1 notapp eal from the tax court’s original October 31, 1994 orders, dismissing thei r claims and sustaining the Commissioner’s determinations of tax deficiencies an d penalties.
- 10 - evid ence that, prior to the taxpayers’ filing of thei r motions to vacate, either the Commissioner or the ta x cour t had actual knowledge that Adams was allegedl y incapable of prosecuting the taxpayers’ redeterminatio n claims or that Adams no longer represented th e taxpayers.

On May 16, 1996, the tax court entered an orde r denyin g each of the taxpayers’ motions to vacate. Th e taxpayers appeal these orders. 1

II.

We must first consider whether the tax court ha d jurisdicti on to hear the taxpayers’ motions to vacate as well a s to hear their motions to reopen the taxpayers ’ redetermination claims. We conclude that the tax cour t did not have jurisdiction to hear the taxpaye rs’ motions.

We review de novo the issue of whether a tax cour t ha s jurisdiction to hear a motion. See Nordvik v

. Commissioner , 67 F.3d 1489, 1491 (9th Cir. 1995), cert

. denied , 11 6 S. Ct. 1682 (1996); Harbold v. Commissioner , 51 F.3d 618, 621 (6th Cir. 1995). Absent extraordinar y circumstances, the tax court lacks jurisdicti on to revise
or m odify its decisions that have become final. Se e Webbe v. C ommissioner , 902 F.2d 688, 688 (8th Cir. 1990) (“In this case we consider the extent of the power of the United States Tax Court to revise or modify decision s- 11 -

that have become final. We conclude that there is n o
su ch power, at least in the absence of extraordinar y circu mstances not present here.”); accord Nordvik , 6 7 F.3d at 1491 (“Once [its] decision becomes final, a ta x cour t generally lacks jurisdiction to consider a motio n to vacate or revise.”); see also Harbold , 51 F.3d at 621 (“[O]nce a decision of the TaxThe exceptions to this rule are limited to certain cases involving: (1) dispute s 2 involving less than $10,000, see I.R.C. §§ 7481(b), 7463 (1994); (2) interes t determ inations, see I.R.C. § 7481(c) (1994); or (3) estate taxes, see I.R.C. § 7481(d) (1994). None of these exceptions is implicated here.
- 12 - Court becomes final, the Tax Court no longer ha s juri sdiction to consider a motion to vacate it s decision.”).

Except in certain situations not relevant to thi s appeal, decisions of the tax court become final “[u]po n the expiration of the time allowed for filing a notice of appeal, if no such notice has been duly filedwithin such ti me . . . .” I.R.C. § 7481(a)(1) (1994). The tim e 2 allowe d for filing such notice of appeal is “within 9 0 days after the decision of the Tax Court is entered. ” I.R.C. § 7 483 (1994). However, “[i]f a timely notice of appeal is filed by one party, any other party may take an appeal by filing a notice of appeal within 12 0 days after the decision of the Tax Court is entered.” Id.

It i s undisputed that none of the parties to thi s litigation filed a notice of appeal within 90 days of the tax court’s October 31, 1994 orders. Accordingly, th e tax c ourt’s October 31, 1994 orders were final lon g befo re the taxpayers filed their March 1996 motions t o
vaca te those orders and to reopen their redeterminatio n claims. As a result, absent extraordinary ci rcumstances, the tax court did not have jurisdiction to hear th e taxpayers’ motions.
The taxpayers argue that extraordinary circumstances exis t in this case. Specifically, the taxpayers argu e th at the Commissioner and the tax court violated th e- 13 -

taxp ayers’ due process rights. According to th e taxpayers, prior to the expiration of the 90-day perio d following the entry of the tax court’s judgment agains t each of the taxpayers, the Commissioner and t he tax court knew or sh ould have known that Adams was not prosecuting the t axpayers’ redetermination claims. The taxpayer s ther efore argue that: (1) the Commissioner violated th e taxp ayers' due process rights by failing to notify th e taxp ayers that Adams, the attorney selected by th e taxpayers to representThe ta xpayers have not sought monetary damages from Adams at least in part 3 because “[i]t appears [Adams’s malpractice] insurance coverage may have bee n exhausted.” Appellants’ Reply Br. at 14.
- 14 - them, was not prosecuting their redetermination claims , and (2) the Commissioner and the tax court violated th e taxp ayers’ due process rights by failing to notify th e taxpayers directly of the judgment entered against them.

We find the taxpayers’ attempt to shif t responsibi lity to the Commissioner and the tax court for Adams’s so-called constructive disappearance to b e dis ingenuous. First, the taxpayers voluntarily chos e 3 Adams to p rosecute their claims, and they should not now be heard t o complain of his acts or omissions. Cf. Heim
v. Comm issioner , 872 F.2d 245, 248 (8th Cir. 1989) (“W e therefore conclude that any errors committed by Jukkala, [the taxpayers’ attorney,] even accepting the designation of g ross negligence, do not constitute an adequat e showing of ‘exceptional circumstances,’ warrantin g va cation of the tax court decision. The [taxpayers ] volu ntarilychose Jukkala to represent them, and the y cannot now avoid his acts or omissions in th e proceeding.”). Moreover, we find it nearly absurd tha t the taxpay ers now seek to blame the Commissioner and the tax court for the fact that it took the taxpayers almost two yea rs to realize that Adams had failed to prosecut e thei r redetermination claims. The taxpayers make thi s argument notwithstanding that Braden “stayed in contac t with Mr. Adams on a[n] as needed basis,” Braden Aff. a tWe also note that, consistent with th e general tenor of this litigation, it took the 4 taxpayers nearly a full year to file their motions to vacate. Braden must have received the Commissioner’s March 29, 1995 notice of assessment sometime in April 1995, yet the taxpayers did not file their motions to vacate until March 1996. Notwithstanding this delay, the taxpayers offer no evidence in the record that would support a n explanation for why it took them so long to file their motions to vacate.
- 15 - 1, reprinted in Arkansas Oil & Gas App. at 249C, an d notwithstanding that Braden, himself, is an attorney. 4- 16 -

Fur thermore, in urging that the Commissioner shoul d have informed the taxpayers that Adams was not properl y representing them, the taxpayers essentially claim tha t they were denied their right to effective assistance o f counsel. Cf. Heim , 872 F.2d at 247 (concludi ng that “the [taxpayers’] argument here is essentially dir ected toward the adequacy of the representation that they received ” where t axpayers argued that the tax court’s denial o f their motions for leave to file a motion to v acate should be r eversed because their attorney was grossl y negligent) . However, the taxpayers did not have a right to effecti ve assistance of counsel in these proceedings. See Keene Corp. v. Cass , 908 F.2d 293, 297 n.3 (8th Cir. 1990 ) (“[T]here is no constitutional right to effectiv e assistance of counsel in a civil case.” (citing Glick v. Hender son , 855 F.2d 536, 541 (8th Cir. 1988); Allen v

. Barnes Hos p. , 721 F.2d 643, 644 (8th Cir. 1983))). As a
resu lt, the Commissioner could not have violated, an d ther efore did not violate, the taxpayers’ right t o effective assistance of counsel.
Finally, for purposes of the jurisdictional issu e presented here and based on the facts of this case, i t
was not an extraordinary circumstance that th e Commissioner and the tax court notified only Adams of the judgmen t entered against the taxpayers. As a genera l rule , in civil proceedings, "clients must be hel d
acco untable for the acts and omissions of thei r attorneys.” Pioneer Inv. Servs. Co. v. Bruns wick Assocs. Ltd. Partnership , 507 U.S. 380, 396 (1993); cf. Unite d States v. Boyle , 469 U.S. 241, 249-50 (1985) (Wit h
re spect to the filing of federal estate tax returns , “Congre ss has placed the burden of prompt filing on th e- 17 -

executor, not on some agent or employee of the executor. The dut y is fixed and clear; Congress intended to plac e upon the taxpayer an obligation to ascertain th e statutory deadline and then to meet that dead line, except in a very narrow range of situations. . . . That th e attorney, as the executor’s agent, was expect ed to attend to the mat ter does not relieve the principal of his duty to comp ly with the statute.”). The Court has explaine d that , under “our system of representative litigation,

. . . each party is deemed bound by the acts of his lawyeragen t and is considered to have notice of all facts , notice of which can b e charged upon the attorney.” Pi oneer Inv. Servs. , 507 U.S. at 397 (quotations an d citations omitted).- 18 -

In the present action, the taxpayers do not claim , nor is there any evidence in the record, that Adam s re ceived inadequate notice of the judgment entere d agai nst the taxpayers. Moreover, there is no evidenc e that eithe r the Commissioner or the tax court had actual know ledge of Adams’s alleged inability to prosecute th e taxpayers’ petitions. As a result, when Adams receive d notice of the judgment entered against the ta xpayers, the taxp ayers were “considered to have notice of” th e judg ment entered against them because notice of th e judgmen t “can be charged upon the[ir] attorney.” Id

. (quotations and citations omitted). Thus, inthe present action, no extraordinary circumstances exist that woul d give the tax court jurisdiction to hear the taxpayers ’ motions.

Be cause the tax court did not have jurisdiction t o hear the taxpayers’ motions, it could not have grante d thos e motions. Accordingly, we vacate the tax court’ s orders denying the taxpayers’ motions to vacate. Thus , we leav e undisturbed the tax court’s October 31, 199 4 orders dismissing the taxpayers’ petitions an d sustaining the Commissioner’s asserted tax deficiencies an d penalties.

A true copy.

Attest:

CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT

.