413

DOUGLAS P. SNOW AND DEBORAH J. SNOW, PETITIONERS v. 

COMMISSIONER OF INTERNAL REVENUE, RESPONDENT

DOUGLAS P. SNOW, PETITIONER v. COMMISSIONER

OF INTERNAL REVENUE, RESPONDENT

Docket Nos. 6838–95, 6839–95. Filed June 17, 2014. 

In 1993 R mailed notices of deficiency regarding Ps’ 1987 

and 1990 tax years. In 1995 Ps filed petitions with the Court. 

Ps moved to dismiss for lack of jurisdiction alleging that the 

414 142 UNITED STATES TAX COURT REPORTS (413) 

1Proposed motions to vacate were embodied in petitioners’ motions for 

leave to file. 

notices of deficiency had not been mailed to Ps’ last known 

address and were therefore invalid. R also moved to dismiss 

for lack of jurisdiction because the petitions were untimely. 

These cases were assigned to a Special Trial Judge who wrote 

an initial report granting Ps’ motions to dismiss. Because of 

the amounts in issue, the decisions in these cases were 

required by statute to be made by a regular Judge. After the 

Special Trial Judge submitted his initial report for review, the 

report was rewritten to grant R’s motions to dismiss rather 

than Ps’ motions. A regular Judge adopted the rewritten 

report and then entered orders dismissing for lack of jurisdiction on Oct. 15, 1996. See Snow v. Commissioner, T.C. Memo. 

1996–457. The orders, which are treated as decisions, became 

final on Jan. 13, 1997. In August 2005 the Court informed Ps 

that the initial report of the Special Trial Judge had proposed 

to grant Ps’ motions. The Court sent Ps a copy of the initial 

report. This notification was in reaction to Ballard v. Commissioner, 544 U.S. 40 (2005). On July 3, 2013, Ps filed motions 

for leave to file motions to vacate the orders of dismissal that 

had become final on Jan. 13, 1997. Held: As a general rule, 

the finality of a Tax Court decision is absolute; the recognized 

exceptions are when there has been a fraud on the Court or 

when the decision was void because the Court did not have 

jurisdiction to enter the decision. Here there was no fraud on 

the Court and the Court clearly had jurisdiction to decide 

whether we had jurisdiction to redetermine the deficiencies 

involved. Ps’ motions will be denied. 

Jonathan P. Decatorsmith, for petitioners. 

George W. Bezold, for respondent. 

OPINION 

RUWE, Judge: The matter before us concerns petitioners’ 

motions for leave to file motions to vacate orders of dismissal. 1 The motions were filed on July 3, 2013. The orders 

of dismissal that petitioners’ motions seek to vacate were 

entered on October 15, 1996, pursuant to our opinion in 

Snow v. Commissioner, T.C. Memo. 1996–457. 

Background 

The petitions in these cases were filed in 1995 regarding 

notices of deficiency for the taxable years 1987 and 1990. The 

notices of deficiency had been mailed in May 1993. 

(413) SNOW v. COMMISSIONER 415

2 Unless otherwise indicated, all section references are to the Internal 

Revenue Code, and all Rule references are to the Tax Court Rules of Practice and Procedure applicable to the relevant events. 3The Tax Court is composed of Judges appointed by the President and 

several Special Trial Judges appointed from time to time by the Tax 

Court’s Chief Judge. Judge Dawson was appointed by the President. 

Shortly after the petitions were filed, the parties each 

moved to dismiss for lack of jurisdiction. Petitioners alleged 

that the notices of deficiency were invalid because they had 

not been sent to petitioners’ last known address as required 

by section 6212. 2 Respondent alleged that the notices of deficiency had been sent to petitioners’ last known address, and 

were valid, but that the petitions had not been filed within 

the 90-day period following the dates on which the notices of 

deficiency had been mailed as required by section 6213(a). 

The Court granted respondent’s motions to dismiss, holding 

that the notices of deficiency were valid and the petitions 

were untimely. 

Section 7459(c) provides that ‘‘if the Tax Court dismisses 

a proceeding for lack of jurisdiction, an order to that effect 

shall be entered in the records of the Tax Court, and the 

decision of the Tax Court shall be held to be rendered upon 

the date of such entry.’’ ‘‘[A]n order of dismissal for lack of 

jurisdiction is treated as the Court’s decision.’’ Stewart v. 

Commissioner, 127 T.C. 109, 112 (2006). Section 7481(a)(1) 

provides that the decision of the Tax Court becomes final 

upon the expiration of the time allowed for filing an appeal. 

Section 7483 provides that a notice of appeal must be filed 

within 90 days after the decision of the Tax Court is entered. 

Petitioners did not appeal, and the Court’s decisions became 

final on January 13, 1997. 

Petitioners’ motions for leave to file motions to vacate come 

over 16 years after the decisions in these cases became final. 

Petitioners, however, argue that special circumstances warrant vacating these decisions. These circumstances require 

some explanation. 

The decisions in these cases were entered by Judge Dawson and were based on an opinion of Special Trial Judge 

Goldberg with which Judge Dawson agreed. 3 See Snow v. 

Commissioner, T.C. Memo. 1996–457. Pursuant to section 

7443A, the Chief Judge may assign certain types of cases to 

be heard by a Special Trial Judge. In cases such as petiVerDate Mar 15 2010 13:39 Apr 28, 2015 Jkt 000000 PO 00000 Frm 00003 Fmt 3857 Sfmt 3857 V:\FILES\BOUNDV~1.WIT\BV864A~1.142\SNOW JAMIE
416 142 UNITED STATES TAX COURT REPORTS (413) 

4The amount is now $50,000. See sec. 7443A(b)(3), (c). 

tioners’, which involved disputed deficiencies exceeding 

$10,000, 4 section 7443A required a presidentially appointed 

Judge (hereinafter regular Judge) to make the decision. See 

Rules 180, 181, and 183 as they existed prior to amendment 

in 2005. At the time the instant cases were decided, it was 

the practice of the Court to have the report of a Special Trial 

Judge in such a case submitted to the Chief Judge, who 

would then assign it to a regular Judge for review, adoption, 

and entry of decision. If, upon review, the regular Judge disagreed with the Special Trial Judge’s report, the two would 

confer and changes might be made through a collaborative 

process. See Ballard v. Commissioner, 544 U.S. 40, 57 (2005). 

The Special Trial Judge’s initial report in these cases, 

which was submitted to the Chief Judge pursuant to Rule 

183(b), had proposed to grant petitioners’ motions to dismiss 

for lack of jurisdiction because the notices of deficiency had 

not been properly sent to petitioners’ last known address. In 

arriving at this conclusion, the initial report emphasized certain facts and circumstances that occurred after the mailing 

of the notices of deficiency. 

After the Special Trial Judge submitted his initial report 

to the Chief Judge, the report was rewritten. The rewritten 

report explained that the appropriate test for deciding 

whether the notices were properly addressed was whether, at 

the time the notices of deficiency were mailed, the Internal 

Revenue Service (IRS) knew or should have known that petitioners had moved to a new address. See Ward v. Commissioner, 907 F.2d 517 (5th Cir. 1990), rev’g 92 T.C. 949 (1989); 

Pomeroy v. United States, 864 F.2d 1191 (5th Cir. 1989); 

Monge v. Commissioner, 93 T.C. 22 (1989). Using this analysis, the revised report considered facts occurring after the 

mailing of the notices of deficiency to be irrelevant and held 

that the notices of deficiency had been mailed to petitioners’ 

last known address. As a result, the revised report held that 

the notices of deficiency were valid and that respondent’s 

motions to dismiss should be granted because the petitions 

were untimely. Judge Dawson then adopted the revised 

report, which appears at T.C. Memo. 1996–457, and, on 

October 15, 1996, entered the orders (decisions) granting 

respondent’s motions to dismiss for lack of jurisdiction. 

(413) SNOW v. COMMISSIONER 417

5The August 19, 2005, order stated: 

The Supreme Court decided in Ballard v. Commissioner, 544 U.S. ll Continued 

In accordance with Rule 183 in effect from 1983 to 2005, 

it was the Tax Court’s practice to treat a Special Trial 

Judge’s initial report submitted to the Chief Judge for adoption and decision by a regular Judge as an internal document. Therefore, Special Trial Judges’ initial reports were 

not made available to the parties. Only the adopted reports 

and the decisions were served on the parties. See Ballard v. 

Commissioner, 544 U.S. at 45–46. 

Years later, in 2005, a case handled under Rule 183 as it 

existed from 1983 to 2005 was heard by the United States 

Supreme Court. In Ballard, the Supreme Court held that for 

purposes of appealing a Tax Court decision, the parties were 

entitled to have access to a copy of the Special Trial Judge’s 

initial report. The Supreme Court held that this was 

required because an appellate court could not otherwise 

review whether the regular Judge had properly followed Rule 

183, which required that the regular Judge give due regard 

to the fact that the Special Trial Judge had the opportunity 

to evaluate the credibility of witnesses and give the Special 

Trial Judge’s findings of fact the presumption of correctness. 

Neither Ballard nor Rule 183 required the reviewing Judge 

to always accept the findings of the Special Trial Judge. Rule 

183 permitted the reviewing Judge to modify or reject the 

Special Trial Judge’s report in whole or in part after giving 

it due regard and the presumption of correctness. 

In reaction to the 2005 Ballard opinion, the Tax Court 

revised its Rules so as to prospectively provide the parties a 

copy of the initial report of the Special Trial Judge and allow 

them to comment on that report before it was reviewed by 

a regular Judge. See Rule 183 effective September 20, 2005, 

and Amendments to Rules of Practice and Procedure of the 

United States Tax Court, with explanatory notes. 125 T.C. 

339, 342–347. The Court also attempted to find initial copies 

of Special Trial Judges’ reports that had previously been submitted for review and adoption. The initial reports which 

could be found were then served on the parties. The initial 

report of Special Trial Judge Goldberg was served on petitioners by an order dated August 19, 2005. 5

418 142 UNITED STATES TAX COURT REPORTS (413) 

(2005), that draft opinions submitted to the Chief Judge by Special Trial 

Judges under Rule 183(b) of the Court’s Rules of Practice and Procedure 

should have been available to the parties. From 1983 until issuance of 

the Supreme Court’s opinion in Ballard, this Court did not file the draft 

opinions of Special Trial Judges submitted under Rule 183(b). In retrospect and considering the Supreme Court’s holding, draft opinions would 

have been filed and included in the public file. Accordingly, the Court 

has decided that retained Special Trial Judge draft opinions will be filed 

and, thereafter, made publicly available. 

The Court recently conducted a search for retained copies of initial 

draft opinions submitted by Special Trial Judges to the Chief Judge 

under Rule 183(b). A draft opinion was retained in the above-captioned 

cases in which a Special Trial Judge’s draft opinion was adopted under 

the procedures of Rule 183(b). 

The foregoing considered, it is 

ORDERED that the Clerk of the Court file a copy of the Special Trial 

Judge’s draft opinion submitted to the Chief Judge under Rule 183(b) 

and serve the same on the parties to these cases, and it is further 

ORDERED that the decisions in these cases are final under I.R.C. section 7481 and remain in full force and effect. 

Petitioners’ motions that are now under consideration were 

filed almost 8 years after petitioners first learned of the Special Trial Judge’s initial report and over 16 years after the 

decisions had become final. Petitioners allege that after 

receiving the Special Trial Judge’s initial report in August 

2005 they began exploring all options to obtain representation for the purpose of vacating the decisions that had been 

entered in 1996. Petitioners state that they contacted 

numerous attorneys, foundations, Senators, and Congressmen in their effort, but to no avail. They allege that it was 

not until late in 2012 that they were able to obtain their current counsel who filed the motions now under consideration 

in July 2013. 

Respondent opposes petitioners’ motions on the grounds 

that the Court is without jurisdiction to grant petitioners’ 

motions to vacate the decisions that have long been final and 

that the opinion of the Court reported at T.C. Memo. 1996– 

457 is a correct application of the law to the facts. 

Discussion 

Rule 162 provides that any motion to vacate a decision 

shall be filed within 30 days after the decision is entered, 

unless the Court otherwise permits. Petitioners’ motions 

were not filed within 30 days. In order for petitioners’ proVerDate Mar 15 2010 13:39 Apr 28, 2015 Jkt 000000 PO 00000 Frm 00006 Fmt 3857 Sfmt 3857 V:\FILES\BOUNDV~1.WIT\BV864A~1.142\SNOW JAMIE
(413) SNOW v. COMMISSIONER 419

posed motions to vacate to be considered, Rule 162 required 

petitioners to file motions for leave to file their motions to 

vacate. The granting of such motions lies within the sound 

discretion of the Court. Stewart v. Commissioner, 127 T.C. at 

111–112; see also Drobny v. Commissioner, 113 F.3d 670, 677 

(7th Cir. 1997), aff ’g T.C. Memo. 1995–209. But before we 

can exercise any discretion, we must have jurisdiction. 

When jurisdiction is in issue, it is clear that we have jurisdiction to decide whether we have jurisdiction. Stewart v. 

Commissioner, 127 T.C. at 112. Thus, we must first determine whether we have jurisdiction to grant the requested 

relief. As we stated in Stewart: 

In order for us to consider the substantive merits of petitioner’s motion 

for leave, we must still have jurisdiction. Except for very limited exceptions, none of which applies here, this Court lacks jurisdiction once a 

decision becomes final within the meaning of section 7481. Abatti v. 

Commissioner, 859 F.2d 115, 117–118 (9th Cir. 1988), affg. 86 T.C. 1319 

(1986); Lasky v. Commissioner, 235 F.2d 97, 98 (9th Cir. 1956), affd. 352 

U.S. 1027 (1957). As relevant here, a decision of the Tax Court becomes 

final ‘‘Upon the expiration of the time allowed for filing a notice of 

appeal, if no such notice has been duly filed within such time’’. Sec. 

7481(a)(1). Section 7483 provides that a notice of appeal may be filed 

within 90 days after a decision is entered. As previously explained, an 

order of dismissal for lack of jurisdiction is treated as the Court’s decision. [Id.; fn. ref. omitted.] 

Section 7481 provides for the finality of a Tax Court decision 

upon the expiration of the time for appeal. There were no 

appeals in these cases. Our jurisdiction in a case where our 

previous decision has become final is severely limited by both 

statute and caselaw. 

As a general rule, the finality of a decision is absolute. See 

Abatti v. Commissioner, 86 T.C. at 1323. There are very few 

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

aff ’d, 412 F.3d 366 (2d Cir. 2005). One exception is where 

there was a fraud on the court. See Toscano v. Commissioner, 

441 F.2d 930 (9th Cir. 1971), vacating 52 T.C. 295 (1969); 

Kenner v. Commissioner, 387 F.2d 689 (7th Cir. 1968); 

Cinema ‘84 v. Commissioner, 122 T.C. at 270, 271; Taub v. 

Commissioner, 64 T.C. 741, 751 (1975), aff ’d without published opinion, 538 F.2d 314 (2d Cir. 1976); see also Senate 

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

We have also vacated an otherwise final decision in a situaVerDate Mar 15 2010 13:39 Apr 28, 2015 Jkt 000000 PO 00000 Frm 00007 Fmt 3857 Sfmt 3857 V:\FILES\BOUNDV~1.WIT\BV864A~1.142\SNOW JAMIE
420 142 UNITED STATES TAX COURT REPORTS (413) 

tion where the Court had never acquired jurisdiction to make 

a decision. See Abeles v. Commissioner, 90 T.C. 103 (1988); 

accord Seven W. Enters., Inc. & Subs. v. Commissioner, 723 

F.3d 857 (7th Cir. 2013), vacating and remanding 136 T.C. 

539 (2011); Billingsley v. Commissioner, 868 F.2d 1081, 

1084–1085 (9th Cir. 1989); Brannon’s of Shawnee, Inc. v. 

Commissioner, 69 T.C. 999, 1002 (1978). We may also ‘‘correct’’ a final decision where a clerical error in the decision is 

discovered after the decision has become final. Michaels v. 

Commissioner, 144 F.3d 495 (7th Cir. 1998), aff ’g T.C. Memo. 

1995–294. Here it is clear that there was neither fraud on 

the Court nor clerical error and that we had jurisdiction for 

purposes of deciding whether to dismiss petitioners’ cases for 

lack of jurisdiction. Petitioners make no argument to the contrary. 

In Cinema ’84 we noted that the Court of Appeals for the 

Sixth Circuit had previously held that a final decision of the 

Tax Court could be vacated in situations involving mutual 

mistake, see Reo Motors, Inc. v. Commissioner, 219 F.2d 610 

(6th Cir. 1955), but that 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 would no longer follow the rationale of Reo Motors, Inc., Cinema ’84 v. Commissioner, 122 T.C. at 270, 271. 

In Wapnick v. Commissioner, 365 F.3d 131, 132 (2d Cir. 

2004), the court explained the finality of Tax Court decisions, 

stating: 

[S]ection 7481 of the Internal Revenue Code provides that a decision of 

the Tax Court becomes final ‘‘[u]pon the expiration of the time allowed 

for filing a petition for certiorari, if the decision of the Tax Court has 

been affirmed or the appeal dismissed by the United States Court of 

Appeals and no petition for certiorari has been duly filed.’’ 26 U.S.C. 

§ 7481(a)(2)(A). In considering the predecessor to section 7481, the 

Supreme Court ruled that after an order of the Tax Court has become 

final the ‘‘statute deprives us of jurisdiction over the case.’’ R. Simpson 

& Co. v. Commissioner, 321 U.S. 225, 230 (1944); see also Lasky v. 

Commissioner, 235 F.2d 97, 99 (9th Cir. 1956). The Court recognized 

that ‘‘the usual rules of law applicable in court procedure must be 

changed’’ to achieve the finality needed in the realm of tax decisions. See 

Simpson, 321 U.S. at 228. 

(413) SNOW v. COMMISSIONER 421

6For a discussion of the hardships that can result from the rules governing finality, see Estate of Bailly v. Commissioner, 81 T.C. 949, 955 n.10 

(1983). 

The rule of finality can result in either the taxpayer or the 

Commissioner receiving a benefit that would not have been 

available had an error been corrected before a decision 

became final. 6

We do not have equitable power to expand our jurisdiction. 

See Commissioner v. McCoy, 484 U.S. 3 (1987); Drobny v. 

Commissioner, 113 F.3d 670 (7th Cir. 1997); Woods v. 

Commissioner, 92 T.C. 776, 784 (1989). As we stated in 

Cinema ’84 v. Commissioner, 122 T.C. at 271: 

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. [Fn. ref. omitted.] 

When a Tax Court decision becomes final and there is no 

jurisdiction in any other Federal court, lack of jurisdiction 

trumps equity. For example, in United States v. Dalm, 494 

U.S. 596 (1990), the taxpayer, who had been the administratrix of her former employer’s estate, received substantial payments from the deceased employer’s brother. Those payments 

were reported on a Federal gift tax return, and the gift tax 

was paid by the taxpayer. Subsequently, the IRS examined 

the taxpayer’s income tax return for the year in which she 

received the payments and determined that the payments 

were taxable income rather than gifts. The taxpayer petitioned this Court, and we decided that the payments were 

taxable income. Subsequently, the taxpayer filed a claim for 

refund of the gift tax. The IRS denied the claim. In subsequent litigation over the erroneously paid gift tax, the United 

States Supreme Court held that the statute deprived the District Court of jurisdiction over the action for refund of the 

gift tax, noting that ‘‘Dalm does not seek to invoke equitable 

recoupment in determining her income tax liability; she has 

already litigated that liability [in the Tax Court] without 

raising a claim of equitable recoupment and is foreclosed 

from relitigating it now.’’ Dalm, 494 U.S. at 606. Here, as in 

422 142 UNITED STATES TAX COURT REPORTS (413) 

7Fifth Cir. R. 47.5.4 provides that, except under limited circumstances 

not relevant here, unpublished opinions issued on or after January 1, 1996, 

are not precedent. However, an unpublished opinion issued after January 

1, 2007, may be cited pursuant to Fed. R. App. P. 32.1(a). 

Dalm, our decisions have become final. As a result, we do not 

have jurisdiction to modify the decisions. 

Recently, the Court of Appeals for the Seventh Circuit 

addressed the issue of our jurisdiction to vacate decisions 

that had become final where the decisions contained clerical 

errors. In Seven W. Enters., Inc. & Subs. v. Commissioner, 

723 F.3d 857, 862 (7th Cir. 2013), the Court of Appeals held 

that the Tax Court had no jurisdiction to vacate an incorrect 

decision that had become final, stating: 

Our case law makes it clear that, absent a fraud that infected the Tax 

Court’s decision, the Tax Court cannot vacate a decision that has become 

final. Here, the Tax Court issued its decisions on June 8, and those 

decisions became final on September 6, 2011. The Commissioner does 

not contend that the June 8 decisions were the result of fraud. Consequently, the Tax Court did not have the authority to vacate those 

decisions. Instead, as was done in Michaels, the Tax Court should have 

corrected the initial decisions without vacating them. 

Finally, both petitioners and respondent rely on an unreported case decided by the Court of Appeals for the Fifth Circuit, to which these cases are appealable. See Hilal v. 

Commissioner, 237 Fed. Appx. 932 (5th Cir. 2007). 7 In 

denying Hilal’s motion to vacate a Tax Court decision where 

the motion was filed almost two years after the decision 

became final, the Court of Appeals stated: 

As a general rule, once a decision of the tax court becomes final, the tax 

court lacks jurisdiction to vacate that decision. See, e.g., Davenport 

Recycling Assocs. v. Comm’r, 220 F.3d 1255, 1259 (11th Cir. 2000). 

Courts have made exceptions to the finality rule in only three situations. Id. These exceptions to the general rule ‘‘must be construed narrowly’’ so that the finality of judgments is preserved. Id. The first exception to the finality rule is when the tax court may have originally lacked 

jurisdiction to enter a final decision. Billingsley v. Comm’r, 868 F.2d 

1081, 1084–85 (9th Cir. 1989). The rationale for this exception is that 

it would ‘‘border on absurdity’’ to prevent the tax court on jurisdictional 

grounds from vacating a decision it lacked jurisdiction to enter in the 

first place. Id. at 1085. Some circuits also allow an exception to the 

finality rule when there is a fraud upon the court. See, e.g., Drobny v. 

Comm’r, 113 F.3d 670, 677 (7th Cir. 1997). The third possible exception 

to the finality rule is for mutual mistake, where the tax court decision 

was predicated on the parties’ stipulation, and both the government and 

(413) SNOW v. COMMISSIONER 423

8Fed. R. Civ. P. 60(b) provides, in part: 

(b) Grounds for Relief from a Final Judgment, Order, or Proceeding. On 

motion and just terms, the court may relieve a party or its legal representative from a final judgment, order, or proceeding for the following reasons: 

(1) mistake, inadvertence, surprise, or excusable neglect; 

(2) newly discovered evidence that, with reasonable diligence, could 

not have been discovered in time to move for a new trial under 

Rule 59(b); 

(3) fraud (whether previously called intrinsic or extrinsic), misrepresentation, or misconduct by an opposing party; 

(4) the judgment is void; 

(5) the judgment has been satisfied, released, or discharged; it is 

based on an earlier judgment that has been reversed or vacated; 

or applying it prospectively is no longer equitable; or 

(6) any other reason that justifies relief. 

the taxpayer concede they mistakenly entered into the stipulation. 

Abatti v. Comm’r, 859 F.2d 115, 118 (9th Cir. 1988). The validity of this 

third exception is questionable. See, e.g., Harbold, 51 F.3d at 622; Swall 

v. Comm’r, 122 F.2d 324, 324 (9th Cir. 1941). The tax court lacks jurisdiction to vacate its decision on other grounds, including newly discovered evidence, an intervening change in the law, and excusable neglect. 

Kenner v. Comm’r, 387 F.2d 689, 690–91 (7th Cir. 1968); Toscano v. 

Comm’r, 441 F.2d 930, 932 (9th Cir. 1971). 

[Hilal v. Commissioner, 237 Fed. Appx. at 933–934.] 

None of the recognized exceptions to finality is present 

here. We had jurisdiction in 1996 to decide the question of 

our jurisdiction and to grant respondent’s original motions to 

dismiss for lack of jurisdiction. Indeed, dismissal for lack of 

jurisdiction was also the remedy petitioners sought, albeit for 

different reasons than respondent. There is no allegation or 

evidence of fraud on the Court. Finally, there is no allegation 

or evidence of mutual mistake or clerical error. 

Petitioners, nevertheless, argue that we should override 

the above precedents by applying rule 60(b) of the Federal 

Rules of Civil Procedure, 8 specifically, rule 60(b)(4) and (6). 

Paragraph (c) requires that motions pursuant to paragraph 

(b)(4) and (6) shall ‘‘be made within a reasonable time’’. Our 

Rule 1(b) provides that where there is no applicable rule, 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(b)(4) of the Federal Rules of Civil Procedure allows 

for relief from a judgment that is void. A judgment that was 

424 142 UNITED STATES TAX COURT REPORTS (413) 

9Petitioners cite no cases that have held that the failure to provide the 

initial Special Trial Judge’s report was a violation of due process. In this 

regard, we note that our decision in Snow v. Commissioner, T.C. Memo. 

1996–457, did not deprive petitioners of a forum in which to contest their 

tax liabilities. In that opinion we advised petitioners as follows: 

Petitioners are not without recourse. Because they paid the deficiencies, interest, and penalties in full on May 1, 1995, the time for filing 

a claim for refund has not yet run. Sec. 6511(a). If a timely refund claim 

is disallowed by respondent, petitioners could file a suit for refund in the 

U.S. District Court or the U.S. Court of Federal Claims and thus litigate 

the merits of their tax liabilities for the years in question. [Id., slip op. 

at 13 n.2.] 

As far as we know from the record, petitioners have not filed claims for 

refund. It therefore appears that petitioners may now be barred by sec. 

6511(a) from obtaining any refunds for the years 1987 and 1990, regardless of whether we were to grant their current motions. See sec. 6511(a). 

As the Supreme Court stated in United States v. Dalm, 494 U.S. 596, 602 

(1990), ‘‘unless a claim for refund of a tax has been filed within the time 

limits imposed by § 6511(a), a suit for refund, regardless of whether the 

tax is alleged to have been ‘erroneously,’ ‘illegally,’ or ‘wrongfully collected,’ 

§§ 1346(a)(1), 7422(a), may not be maintained in any court.’’ 

made by a court that was without jurisdiction is a void judgment. See Billingsley v. Commissioner, 868 F.2d 1081 (9th 

Cir. 1989); Abeles v. Commissioner, 90 T.C. 103 (1988). As 

previously explained, a Tax Court decision is considered void 

when the Court lacked jurisdiction to make the decision. 

Such a void decision can be vacated. However, as also previously explained, because petitioners filed petitions, we had 

jurisdiction to decide our jurisdiction, which is what we did 

in dismissing these cases in 1996. 

Petitioners also allege that because they did not receive 

notice of the Special Trial Judge’s initial report in time to 

timely appeal, they were deprived of due process and the 

decisions are void. Petitioners cite no cases where an alleged 

due process violation was grounds for vacating a final Tax 

Court decision. Indeed, a long line of previously cited cases 

severely restricts our jurisdiction to vacate a final decision to 

the narrow circumstances previously stated. 9

Rule 60(b)(6) of the Federal Rules of Civil Procedure allows 

relief for ‘‘any other reason that justifies relief ’’ from the 

operation of the judgment. However, the previously cited 

authorities narrowly restrict the ‘‘reasons’’ that can be used 

(413) SNOW v. COMMISSIONER 425

10 As explained supra note 9, the passage of time can prove fatal to relief 

even if taxes were erroneously collected. 

In petitioners’ proposed motions to vacate they ask this Court to order 

the refund of the tax deficiencies that they paid on May 1, 1995. We have 

held that we have no jurisdiction over the deficiency determinations in 

these cases. Indeed, we would have lacked jurisdiction even if we had 

granted petitioners’ motions to dismiss for lack of jurisdiction. Lacking jurisdiction over the deficiencies, we have no power to order a refund. See 

sec. 6213(a), which provides in pertinent part: ‘‘The Tax Court shall have 

no jurisdiction to enjoin any action or proceeding or order any refund 

under this subsection unless a timely petition for a redetermination of the 

deficiency has been filed and then only in respect of the deficiency that is 

the subject of such petition.’’ 

to override the finality of Tax Court decisions, and none of 

those reasons exists here. 

Finally, even if we had jurisdiction to exercise discretion to 

vacate under paragraph (b)(4) or (6), paragraph (c) requires 

that such motions be made within a reasonable time. Petitioners’ motions were made almost 8 years after petitioners 

received our August 19, 2005, order and a copy of the Special 

Trial Judge’s initial report. While petitioners allege that they 

immediately began seeking assistance from various quarters, 

we find this explanation insufficient to establish that their 

motions were filed within a reasonable time as required by 

paragraph (c). 10

For the foregoing reasons, we will deny petitioners’ 

motions for leave to file motions to vacate. 

f 

Appropriate orders will be issued.