t c memo united_states tax_court davenport recycling associates sam winer tax_matters_partner petitioner v commissioner of internal revenue respondent docket no filed date thomas c borders gail h morse and courtney n stillman for participants mary p hamilton william t hayes and howard a wiener for respondent memorandum opinion dawson judge this case was assigned to special_trial_judge norman h wolfe pursuant to the provisions of sec_7443a and rule sec_180 sec_181 and sec_183 the court agrees with all section references are to the internal_revenue_code in continued and adopts the opinion of the special_trial_judge which is set forth below opinion of the special_trial_judge wolfe special_trial_judge the present case is part of the plastics recycling group of cases the issues in this group of cases center about a six-step transaction involving the sale and lease of machines designed to recycle plastic scrap for a detailed discussion of the transactions involved in the plastics recycling cases see provizer v commissioner tcmemo_1992_ affd without published opinion 996_f2d_1216 6th cir this matter is before the court on participating partners ernest c and marion k karras' hereinafter participants motion for special leave to file motion for reconsideration of decision or to vacate decision filed pursuant to rule sec_161 and sec_162 participants also lodged with the court a motion for reconsideration of decision or to vacate decision as explained in greater detail below we will deny participants' motion for special leave the issue for decision is whether grounds exist in this case for reopening or vacating what is otherwise a final_decision participants allege that the court lacked subject matter continued effect for the tax years in issue except as otherwise indicated all rule references are to the tax_court rules_of_practice and procedure jurisdiction to decide this case in particular participants allege that samuel l winer winer had been enjoined from acting as tax_matters_partner tmp of davenport recycling associates davenport and had no authority to sign partnership level consents extending the statutory period of limitations for assessment during the relevant periods or to sign the petition to this court on behalf of davenport and therefore this court lacked jurisdiction when the decision was entered in this case in addition participants allege that the decision in this case was obtained as a result of fraud on the court perpetrated by respondent because respondent's attorneys concealed from the court winer's purported inability to act as tmp respondent asserts that participants' motion for special leave should be denied because the court had jurisdiction when the decision was entered and the decision was not obtained by fraud on the court respondent further asserts that participants' motion for special leave should be denied because a timely petition was filed by the sole general_partner winer and it was ratified by the partners other than winer in their motion for special leave to file motion for reconsideration of decision or to vacate decision the participants assert that the court lacks subject matter jurisdiction because they claim winer did not have authority to extend the period of limitations or to file a petition in this court the participants have not requested that in the event the court has jurisdiction it should permit them to contest the underlying issues on the merits davenport is a limited_partnership subject_to the unified partnership audit and litigation procedures set forth in sec_6221 through added to the code by the tax equity and fiscal responsibility act of tefra publaw_97_248 96_stat_648 respondent issued notices of beginning of administrative_proceeding nbap to davenport for the years and on date date date and date respectively copies of those nbap's were issued to all notice partners of davenport including participants on date respondent issued notices of final_partnership_administrative_adjustment fpaa to davenport proposing adjustments to davenport's through years the notices of fpaa were mailed to winer as tmp as well as to participants and all other notice partners for the through years of davenport on date a petition_for_readjustment for the years through was filed with this court on behalf of davenport by winer who identified himself as the tmp when the petition was filed in this case davenport had its principal_place_of_business in clearwater florida and participants resided in oak brook illinois this case subsequently was concluded before trial by a concession at the partnership level of the adjustments proposed by respondent the case was conceded at the instruction of winer on date respondent's proposed decision was entered as the decision of the court neither participants nor any other partner objected to the entry of decision and no appeal was taken from the decision pursuant to sections a and a and the deficiencies attributable to the disallowed davenport partnership items were assessed by computational adjustments against davenport's limited partners including participants at the conclusion of the partnership level proceedings almost years after the entry of decision in this case on date participants filed with this court a motion for leave to file election to participate and submitted a notice of election to participate in the captioned matter involving davenport by order dated date we granted participants' motion to file a notice of election to participate in the captioned matter involving davenport also on date participants filed a motion for special leave to file motion for reconsideration of decision or to vacate decision in the captioned matter involving davenport on the same date participants lodged with the court a motion for reconsideration of decision or to vacate decision participants' motion for special leave is currently pending before this court the resolution of these matters turns on whether the petition to this court signed by winer on behalf of the partnership is valid for purposes of conferring jurisdiction on this court and also on whether the decision in this case was obtained as a result of fraud on the court background because of the unusual circumstances of this case we consider it appropriate to recount in some detail the events preceding winer's filing of the petition a the plastics recycling transactions the present case involves participants' investment in a limited_partnership davenport that purportedly leased sentinel expanded polystyrene eps recyclers the transactions involving the sentinel eps recyclers purportedly leased by davenport are in substance the same as those in the clearwater group limited_partnership clearwater the partnership considered in provizer v commissioner tcmemo_1992_177 affd without published opinion 996_f2d_1216 6th cir winer was the general_partner of clearwater this court has taken judicial_notice of both the opinion and the record in the provizer case which is uniformly viewed as the lead case involving the plastics recycling transactions and which held that those transactions were in substance a sham b the partnership participants were limited partners in davenport a new york limited_partnership organized and promoted by winer at the end of winer was the sole general_partner of davenport at all relevant times under the davenport agreement of limited_partnership winer as general_partner had full and exclusive power and authority on behalf of the partnership to manage control administer and operate the business and affairs of the partnership winer's signature as general_partner of davenport was sufficient to bind the partnership winer signed davenport's through partnership returns as general_partner a private offering memorandum the offering with respect to davenport was distributed to potential limited partners the davenport offering states that winer would have a 1-percent interest in all items of income gain deduction loss and credit arising from the operations of davenport for which he would pay dollar_figure for the performance of his administrative and other services including acting as the tmp of davenport winer was to receive general_partner fees in the amount of dollar_figure from the proceeds of davenport after the offering was closed to investors and additional compensation equal to certain_sales commissions the davenport offering projected tax benefits for a limited_partner for from a dollar_figure investment in the amount of dollar_figure in investment and energy tax_credits in addition to a dollar_figure deduction the offering required that investors who wished to purchase a dollar_figure unit have either a net_worth in excess of dollar_figure million including residences and personal_property or income in each of the most recent years in excess of dollar_figure and a reasonable expectation of income in the current_year in excess of dollar_figure additionally the davenport offering stated that there was a high degree of risk with the offering the offering declared that an investment in davenport should be considered only by persons who have a substantial net_worth and substantial present and anticipated income and who can afford to lose all of their cash investment in the partnership and to utilize or lose all or a substantial portion of the anticipated tax benefits flowing from such investment c samuel l winer in addition to being the general_partner of davenport winer was the general_partner of stevens hamilton masters dickinson pompano and whitman recycling associates these were tefra partnerships which purported to lease sentinel eps recyclers and were substantially identical to davenport also winer was the general_partner of two non-tefra partnerships which purportedly leased sentinel polyethylene epe recyclers clearwater and poly reclamation associates although winer was involved in marketing the partnerships of which he was a general_partner he did not participate in structuring the plastics recycling transactions winer was also a part owner of two sentinel recyclers winer does not have an engineering background and he is not an expert in plastics material or plastics recycling the davenport offering indicated that since winer had been employed as an independent financial consultant and investment banker and that he had experience in the securities industry winer testified at the evidentiary hearing that in he was a real_estate developer and that he is currently employed as a real_estate broker winer received a bachelor's degree in from pennsylvania state university and attended st joseph's college and temple university for advanced studies winer was identified in the davenport offering as the tmp of davenport winer had been involved with other tax_shelter transactions before he became a promoter of the plastics recycling partnerships he had been a syndicator of numerous coal_tax shelters the record does not contain information regarding how winer initially became a promoter of the plastics recycling partnerships d participants and their involvement with davenport participant ernest c karras karras acquired a percent interest in davenport in for a capital_contribution of dollar_figure the schedule_k-1 attached to davenport's return showed that karras had a partnership loss from davenport of dollar_figure and a basis for investment tax_credits and energy credits of dollar_figure the record does not include copies of participants' federal_income_tax returns karras has a bachelor's degree in electrical engineering from the university of illinois has done postgraduate work in telecommunications and computer sciences and has a master's degree in industrial management from depaul university at all times since karras has been owner president and ceo of an engineering and manufacturing company engaged in the production of high-tech computers for the telecommunications industry karras received the initial solicitation for davenport from his personal accountant of years barry swartz swartz who recommended the davenport investment karras testified that when he invested in davenport he believed that plastics recycling had a good future when karras invested in davenport he knew that winer was the general_partner after reading the davenport offering for the basics karras gave the offering to his attorney john karones karones according to karras after karones reviewed the davenport offering he said this is a pretty risky thing plastic recycling and questioned whether the recyclers described in the offering really existed karras testified that he then called his accountant swartz for confirmation that the recyclers really existed after a few days swartz reported back to karras that someone that swartz knew had seen the recyclers neither karras nor swartz actually saw any of the recycling machines before karras paid dollar_figure for his interest in davenport during the proceedings in the underlying davenport recycling case karras became aware that winer as tmp had filed a petition with this court karras did not receive further information or updates from winer regarding the status of the case after the filing of the petition karras claims that he did not learn that the case involving davenport had been settled until he received a bill from the irs karras testified that he couldn't believe that the case was over with and nobody had told us anything in the end karras was bowled over by the size of the tax_liability that had resulted from his simple dollar_figure investment e the winer sec_7408 injunction proceeding in winer and winer development corp were identified by respondent as persons who had violated sec_6700 by promoting or selling partnerships or other arrangements that included gross valuation overstatements subsequently respondent issued prefiling_notification letters to winer and the notice partners of davenport including participants regarding davenport on date these letters stated that the internal_revenue_service irs planned to review the and tax returns of each investor in davenport for claimed tax deductions and credits resulting from an investment in the partnership which had been identified as a tax_shelter the letters indicated that the irs did not believe the purported tax deductions and or credits were allowable and that if such tax deductions and or credits had been claimed by the investor his or her return would be audited the investor also was provided an opportunity to file an amended_return on date respondent through the office of district_counsel in jacksonville authorized the u s department of justice doj to seek injunctions under sec_7408 against winer and winer development corp for engaging in conduct subject_to penalty under sec_6700 the letter from the district_counsel stated in part you are hereby authorized and requested to take whatever legal action you deem necessary to secure an injunction against winer to prevent him from further promoting marketing selling and or servicing any abusive_tax_shelter scheme within the meaning of sec_6700 on date the united_states filed a complaint under sec_7408 against winer in connection with his promotion of certain plastics recycling partnerships and later winer development corp was added as a defendant the proceeding was docketed as united_states v winer civil no 84-1123-civ-t-13 m d fla in the complaint the united_states sought to enjoin winer and winer development corp from taking any_action in furtherance of the organization or sale of any abusive_tax_shelter including but not limited to the organization of and sale of interests in the abusive_tax_shelter plan entitled stevens recycling associates and other similar abusive_tax_shelter plans engaging in any other conduct subject_to penalty pursuant to sec_6700 of the internal_revenue_code and from engaging in other similar conduct that substantially interferes with the proper administration of the internal revenue laws paragraph of the complaint named seven other limited_partnerships substantially identical to stevens recycling associates in formation operation and purpose davenport was included in the list of the seven limited_partnerships winer was represented during the initial stages of the sec_7408 injunction proceeding by elliot miller miller before becoming involved in the plastics recycling cases miller represented investors in coal mining partnerships that had been syndicated by winer other attorneys including ronald fieldstone fieldstone represented winer at various times during the sec_7408 injunction proceeding the united_states was represented at various times during the sec_7408 injunction proceeding by doj tax_division trial attorney alice j davis davis and many other attorneys on the staff at the doj davis graduated from law school in she then worked for the irs for years before accepting a position with the tax_division of the doj in washington d c during her employment with the irs davis worked temporarily at the doj in the special litigation section the function of the special litigation section was to bring injunction and penalty suits under sec_6700 and sec_7408 against persons who were believed to have promoted abusive tax_shelters during the evidentiary hearing davis could not recall how the winer injunction case was assigned to her davis recalled that the winer case was only one of many large cases assigned to the special litigation section of the department of justice doj tax_division was created as a result of changes made to the internal_revenue_code by the tax equity and fiscal responsibility act of tefra publaw_97_248 96_stat_648 tefra secs a and a 96_stat_611 added sec_6700 and sec_7408 respectively her davis testified that she did not work with any other trial attorneys from the doj on the winer injunction case documentary_evidence in this case indicates that the winer sec_7408 injunction case was assigned to respondent's jacksonville district_counsel office and particularly to attorney avery cousins iii there is no evidence that the winer sec_7408 injunction case was assigned to or handled by any of respondent's attorneys in the boston district_counsel office of the irs winer never met with district_counsel attorney mary p hamilton hamilton or william t hayes hayes during the pendency of the sec_7408 injunction case filed against him by the doj hamilton and hayes appeared before this court on behalf of respondent in this proceeding although davis worked with people at the irs primary responsibility for the winer sec_7408 injunction proceeding was with the doj and not the irs davis testified that she believed that she was a key_person in the litigation and that the litigation decisions for the case were made in her office davis was not able to recall exactly who she worked with at the irs during the winer sec_7408 injunction case on date before the jacksonville office of district_counsel requested approval from the doj to proceed with an assessment of sec_6700 penalties against winer approval was granted provided the assessments were determined in a manner consistent with the litigating position taken by the doj in another sec_6700 penalty case in which winer was not involved which was being argued before the same judge presiding over the winer sec_7408 injunction proceeding davis later advised the jacksonville district counsel's office that the doj had changed its position and did not approve of the amount of the proposed penalties in the fall of winer and his attorneys determined that they wished to conclude the sec_7408 injunction proceeding and explore the possibility of negotiating a settlement with the doj winer testified that he decided to settle the sec_7408 injunction proceeding because he felt it was detrimental to the partners of the partnerships in which he was the general_partner miller withdrew as winer's lead counsel and fieldstone was engaged for the specific and limited purpose of exploring and negotiating such a settlement with the doj fieldstone's primary objective in any settlement with the government was to prevent the government from restricting winer in his profession as a securities salesman fieldstone was not involved in any of the other plastics recycling cases the arrangement was that if winer and the doj were unable to reach an acceptable settlement miller would then return to represent winer during the trial a settlement conference in the winer sec_7408 injunction proceeding was arranged for date in washington d c at the doj before the conference davis forwarded to fieldstone a copy of a draft final consent and final judgment of permanent injunction permanent injunction for fieldstone to review davis also sent copies of these documents to miller no one other than winer fieldstone and davis was present during the settlement conference although davis did leave the room at times to confer with her colleagues the settlement was ultimately finalized on the same day the only persons who participated in the actual settlement negotiations were winer fieldstone and davis as part of the settlement at the insistence of davis winer agreed to resign as tmp of the plastics recycling partnerships named in the complaint including davenport according to winer davis said that i can't have you promoting these things and you need to resign davis knows of no other case in which the doj made an attempt to remove the tmp according to davis at the time the doj was concerned that winer was continuing to make representations to the other partners in the plastics recycling partnerships that their deductions related to the partnerships were valid requiring winer to resign as tmp was among other things an attempt by the doj to prevent him from continuing to make these representations winer understood that the duties of a tmp were the same as those of a general_partner however winer never investigated the duties of a tmp according to fieldstone winer's resignation as tmp was not a crucial term of the negotiated settlement with the doj moreover fieldstone recalled that there was a fair amount of negotiation with the doj regarding the degree of constraint on winer's continued participation in the securities business and what reporting obligations would be imposed upon winer as part of the settlement in addition fieldstone recalled that we were negotiating a letter to the limited partners and mr winer's role as a tax adviser those types of issues i don't remember the details it was fieldstone's impression that the government wanted winer to resign as tmp maybe because he was one of the promoters of the transaction although fieldstone knew what a tmp did he did not specifically analyze it for purposes of finalizing a settlement with the government fieldstone did not know how a tmp was appointed or changed and he never did any research on the matter on date davis sent fieldstone another draft of the proposed permanent injunction this document provided for an unspecified amount of penalties under sec_6700 to be paid_by winer and winer development corp this penalty provision was removed from the permanent injunction later entered by the u s district_court fro the middle district of florida district_court a revised draft of the final consent was sent by davis to fieldstone on date the revised final consent had been changed to state that the entry of the permanent injunction did not preclude the irs from assessing penalties under sec_6700 or the defendants from contesting such penalties in the future the proposed permanent injunction was approved and signed by fieldstone and mailed to davis on date fieldstone also sent a copy of the proposed permanent injunction to miller winer signed the final consent on behalf of himself and winer development corp on date in the final consent winer neither admitted nor denied the allegations in the complaint and consented to the entry of an order of permanent injunction fieldstone did not consider the terms of the permanent injunction a total capitulation by winer because as the terms were set forth the permanent injunction did not prevent winer from being able to sell securities fieldstone believed he had accomplished his objective because winer was able to settle his case with the government and return to his career as a securities_dealer the permanent injunction was entered by the district_court on date in the permanent injunction winer and winer development corp hereinafter winer were enjoined from promoting abusive plastics recycling tax_shelter plans including davenport and other plastics recycling partnerships within the meaning of sec_6700 and sec_6701 in general winer was enjoined from organizing selling or marketing tax_shelter plans making or furnishing oral or written advice to an investor to the effect that the investor is entitled to tax benefits with respect to such tax_shelter plans or making or furnishing a statement as to the allowability of a tax_benefit or as to the value of property or services related to the tax_shelter plan winer was ordered not to contest in any court or administrative_proceeding the denial of any_tax credits or deductions claimed on his and individual federal_income_tax returns and any other tax years to which such tax_credits and deductions may have been carried back or forward with respect to the tefra plastics recycling partnerships the permanent injunction further specifically states winer shall retain the right to be treated as a party in a proceeding brought by the tax_matters_partner of said partnerships as allowed by sec_6226 and a a i of the internal_revenue_code except that he will not actively participate in the action as allowed by sec_6226 and a a ii he shall however be allowed to cooperate with the tax_matters_partner for the purpose of administrative and court proceedings the date permanent injunction ordered winer to resign as tmp of the partnerships and to send a letter of resignation to all of the partners it is further ordered adjudged and decreed that defendant samuel l winer shall send a letter to each partner in the following partnerships davenport recycling associates within days from the date this order is entered in said letter defendant samuel l winer shall tender his resignation as tax_matters_partner to the extent applicable in said partnerships and waive his right to intervene in any court proceedings as tax_matters_partner on behalf of these partnerships the form of the letter to be sent is attached hereto as exhibit a within days from the date this final judgment order is entered samuel l winer shall file an affidavit with this court affirming that said letters have been sent in the letter from winer described in the above-mentioned exhibit a winer tendered his resignation as tmp of listed partnerships including davenport and provided the name and address of a new tmp for each listed partnership dl associates ltd dl associates of southfield michigan was identified in the letter from winer as the successor tmp for davenport in the required letter winer explained that he was complying with the requirements of the injunction without admitting or denying the allegations in the complaint the district_court did not order winer to resign as general_partner from any of the partnerships the permanent injunction did not enjoin winer from providing correct factual information to the new tmp's for the partnerships or from providing such information in response to a court order the first paragraph of the letter stated as follows this letter is to advise you that effective _____ the undersigned individually and on behalf of winer development_corporation entered into a consent and agreed to a final judgment of permanent injunction without admitting or denying any of the allegations in the complaint with respect to the pending action by the united_states government for an injunction against the undersigned and winer development_corporation with respect to the stevens recycling associates partnership and other similar partnerships including the partnership in which you are a limited_partner the conclusion of the letter provided the names and phone numbers of samuel l winer's attorneys elliot miller and ronald fieldstone and stated that they were available to answer any questions concerning the matters described in the letter subpoena or as otherwise required_by_law neither the doj nor the irs which was not a party to the case was ordered by the district_court to make any notifications regarding any of the matters in the permanent injunction winer's explanation for failing to communicate with the limited partners immediately after the permanent injunction was entered is that fieldstone's receipt of a copy of the permanent injunction signed by the district_court judge was delayed on or about date winer filed an affidavit with the district_court dated date which indicated that he had sent the letters to the limited partners as specified in exhibit a of the permanent injunction winer's letter of resignation to the partners stated in part as also required by the consent the undersigned winer hereby tenders his resignation as the tax_matters_partner of the partnership in which you are a limited_partner the undersigned winer has also personally waived his right to intervene in any court_proceeding as tax_matters_partner on behalf of this and any other similarly situated partnership the new tax_matters_partner of your partnership is ______ whose address is _____ telephone number ______ mr ____ was appointed pursuant to sec_6231 of the internal_revenue_code the letter instructed each addressee to consult an attached list of limited partners to determine who had been selected as the new tmp for his or her partnership however no separate letters were sent to the individuals or entities who had been selected to replace winer as the tmp of each partnership winer testified that he did not personally know each individual or entity named in his letter as a replacement tmp but he did recognize two- thirds of the individuals or entities listed at the time he sent the letter winer thought that dl associates which he had identified as the replacement tmp for davenport was a law firm in fact dl associates was a partnership which had been formed for the purpose of investing in davenport and other plastics recycling promotions dl associates consisted of five or six individuals who had a percentage of an interest in one unit of davenport other investors aside from those who purportedly had been appointed as the new tmp's called winer after receiving his resignation letter of date to ask him about the effect of his letter winer responded by assuring the investors that his resignation as tmp did not mean that they were out on their own and that since many of the new tmp's that he had designated were attorneys the partnerships would still be able to fight the irs on the tax issues additionally a few investors called fieldstone and asked him general questions about winer's letter the record in this case clearly indicates that fieldstone and winer selected the replacement tmp's in a date letter from davis to fieldstone relating to the sec_7408 injunction case against winer davis wrote this is in response to your date letter concerning the tax matters partners for the eight partnerships involved in the above-entitled case as you are aware we left to you and your client's discretion the choosing of the new tax matters partners to replace mr winer you provided to us the list of the new tax matters partners which we accepted without question additionally the memorandum in support of joint motion for permanent injunction filed date in the district_court and signed by both davis and fieldstone clearly states that winer prepared the list of new tax matters partners for the partnerships involved eventually all of the persons or entities designated as replacement tmp's in winer's resignation letter contacted winer directly or indirectly and indicated that they refused to serve as tmp's for example stuart hershfield who had been selected by winer to serve as the new tmp for the stevens recycling associates partnership on date wrote in a letter to winer i discovered with some alarm that i have been designated as the new tax_matters_partner to replace you this designation is not acceptable under any circumstance i ask that you forthwith communicate with the irs or the parties with whom you entered a consent order advising them that i do not wish to be the tax_matters_partner and accordingly to replace me the evidence indicates that davis was caught off guard by the refusal of the purported replacement tmp's for the partnerships to act as such in a date letter to fieldstone davis wrote i was quite surprised and somewhat dismayed to discover that at least some of the newly appointed tax matters partners had not agreed to the appointments nor had they even been contacted before their names were submitted to us by you and your client the appointment of parties to be tax matters partners without first obtaining their consent indicates a clear lack of good_faith in the consent negotiations in her letter davis concluded that because so many of the newly selected tmp's would not agree to their purported appointments the united_states would not object to the appointment of a second round of replacement tmp's provided the tax matters partners to be appointed have consented to such an appointment and are qualified to act in that capacity and further provided that the appointee not be samuel winer f dl associates dl associates of southfield michigan had been selected by winer and fieldstone as the new tmp of davenport dl associates acquired a 79-percent limited_partner interest in davenport in for a capital_contribution of dollar_figure dl associates was named for david lichtenstein lichtenstein who was one of the partners lichtenstein is an attorney who practices business and transactional law lichtenstein testified that he became aware of the davenport offering through fred gordon gordon an attorney in michigan in the davenport offering gordon was identified as the special counsel to the general_partner who was winer gordon was later retained by winer on behalf of davenport for the tefra litigation in the subject case lichtenstein was familiar with the litigation involving the plastics recycling partnerships because he had been a witness in the lead case provizer v commissioner tcmemo_1992_177 as well as another plastics recycling case tried in detroit michigan after the trial in provizer lichtenstein testified that neither he nor dl associates ever received a notice from the irs or the doj that dl associates was being appointed as the new tmp for davenport lichtenstein was never notified by winer prior to his receipt of winer's letter listing dl associates as the new tmp of davenport according to lichtenstein upon receipt of winer's letter he called gordon and told him what i had received and that i had no idea what it was and that i had no idea how this partnership could act in any capacity to represent anything or anyone and i asked him what should we do gordon told lichtenstein he would look into the matter and get back to him there is no evidence in the record that gordon ever responded to lichtenstein's inquiry a few weeks before the evidentiary hearing in the present case lichtenstein received some document which the irs had sent to dl associates but lichtenstein was unable to recall whether the documents had been addressed to dl associates as tmp of davenport lichtenstein did not remember receiving an fpaa in the davenport recycling case and was unaware that in a petition had been filed on behalf of davenport with this court by winer at the time of the evidentiary hearing in this case lichtenstein was unaware of the status of dl associates under michigan law a partnership must be renewed after a certain period of time or it will expire lichtenstein did not renew dl associates' status as a partnership g the modified injunction miller had received a copy of the date final consent and permanent injunction from winer sometime in late april or early date miller read the proposed tefra partnership regulations which had been reprinted in the date issue of the daily tax report a publication of the bureau of national affairs after reviewing the proposed tefra partnership regulations miller on date wrote to winer regarding winer's settlement of his sec_7408 injunction case with the united_states miller also sent copies of this letter to fieldstone and davis in his letter miller informed winer that he believed winer's settlement of the sec_7408 injunction proceeding action was invalid because winer had not resigned as tmp in accordance with the proposed tefra partnership regulations and only general partners could be designated as tmp's it was miller's belief that certain provisions in the proposed_regulations confirm that what you did in the settlement process is probably invalid and should the proposed_regulations be promulgated in the form in which they are proposed certain additional steps will have to be taken before your resignation as tax_matters_partner can be effective and before the successor tax_matters_partner can be properly designated i am enclosing herein sec_301 a of the proposed_regulations this makes clear that the only persons who may be designated as tax matters partners are persons who are general partners in the partnership this is entirely consistent with the provisions of the code which these proposed_regulations purport to interpret in fact they do not contain any additional procedures pursuant to which a limited_partner may become a tax_matters_partner additionally miller's letter made clear to winer that he believed winer's resignation as tmp was ineffective under the proposed_regulations because winer had not filed a statement with the service_center with which the partnerships' returns were filed as miller explained moreover the regulations are quite clear that your status as a tax_matters_partner will remain in effect notwithstanding a purported resignation and a purported designation of a successor until the resignation and designation of a successor become effective as noted such resignation and designations would not become effective until filed with the service_center even so such statements would not become effective retroactively but only the day filed miller further advised winer to consult the partnership agreements to determine how to arrange for additional limited partners to become general partners so that they could serve as tmp's in accordance with the proposed_regulations according to miller since winer was still technically the tmp he should comport himself in accordance with the proposed_regulations until his resignation as tmp became effective miller also suggested that since winer had sent letters to the investors stating that he had resigned as tmp he should send the investors a subsequent letter discussing the issues miller had raised at some point after miller sent his letter davis fieldstone and winer became concerned that because the partners winer had listed as the new tmp's were all limited partners they might be ineligible to serve as tmp's under sec_6231 the parties involved also were concerned by miller's interpretation of the proposed_regulations that the mailing of a letter of resignation by winer to the partners was ineffective to terminate his own status as the tmp or to designate a new tmp under existing law in a date letter to davis fieldstone proposed that winer continue to serve as the tax_matters_partner solely for the purpose of providing administrative services in such capacity and not for the purpose of rendering any substantive legal advice to limited partners fieldstone also wrote that mr winer is willing to comply with your request to resign as tax_matters_partner if such resignation were possible under existing law which apparently it is not in response davis reversing her earlier opposition to allowing winer to serve as tmp wrote fieldstone on date that the united_states would agree to allow winer to continue to serve as tmp for the purpose of providing administrative services to the recycling partnerships subsequently on date the united_states and winer filed a joint motion for an order granting specific relief from final judgment of permanent injunction joint motion winer authorized fieldstone to sign the joint motion for specific relief on his behalf in the joint motion the parties moved that winer be allowed to act as tax_matters_partner for some of the recycling partnerships listed in the final judgment of permanent injunction for the purpose of providing administrative services to said partnerships davenport was one of the recycling partnerships listed in the permanent injunction winer purportedly assumed that the joint motion was another part of the settlement davis testified that her understanding of the term administrative services at the time the modification was filed was that this would allow winer to participate in winding up the partnerships and defending them in the tax_court according to davis winer was allowed to be reinstated as tmp because no other partner would accept the responsibility the parties also jointly filed a memorandum in support of the joint motion which stated because of the refusal of the persons on this list to act as tax matters partners and the apparent inability of the defendant winer to obtain other persons to act in this capacity and also because someone is needed to administer the affairs of the partnerships the united_states and the defendants winer and winer development corp have agreed that it is in the best interest of all involved to allow defendant samuel l winer to act as tax_matters_partner on behalf of said partnerships both the joint motion and the memorandum in support of the joint motion were drafted by davis the memorandum noted that the district_court had retained jurisdiction of the underlying injunction case for the purpose of implementing and enforcing any additional decrees and orders necessary and appropriate to the public interest in the memorandum the parties wrote that an order allowing defendant samuel l winer to act as tax_matters_partner for the partnerships will serve the best interests of the public on date the district_court issued an order granting specific relief from the final judgment of permanent injunction as to samuel l winer and winer development corp in which it was ordered that for good cause shown samuel l winer may act as tax_matters_partner for the purpose of providing administrative services to the partnerships which included davenport the district court's order did not remove the prohibitions against winer's selling or promoting the partnership or intervening in any court_proceeding as the tmp on behalf of any of the partnerships referenced in the date permanent injunction winer claims that he first heard of the proposal to reinstate him as tmp of the partnerships in date during a phone call from fieldstone winer recalled that fieldstone told him he had been reinstated because none of the other investors wanted to be the tmp at that time of the modification winer thought that because there was no activity going on at the partnership level even after being reinstated as tmp he still would not have any function winer testified at the evidentiary hearing in date that he understood administrative services to be similar to a mailbox or a box drop i mean every time i got correspondence from the government concerning audits or whatever i would pass it on to the investors and also they started sending me extensions two months earlier however at a deposition on date in the case of thompson v united_states 95-c-1112-b n d okla winer testified that it was his understanding after the permanent injunction was modified that if anything came up from a tax standpoint that i was to step in--had been reappointed whatever terminology you want to use--and do whatever i had to do during the deposition winer stated that he believed he could also perform ministerial functions like cooperating with the investors if they needed any help in terms of answering things relating to their taxes based on this investment winer did not notify the investors after the order modifying the permanent injunction was entered by the district_court because of the large number of investors involved and the consequent expense winer was unwilling to incur the burden of notification if he was not required to do so by the district_court winer felt no obligation to notify all of the investors although he did inform a few investors in the course of business that he had been reinstated as tmp of the partnerships winer did not speak with davis about the modification and did not inform her that he was not going to notify the investors that he had been reinstated as tmp of the partnerships davis did not instruct winer to notify the investors that the permanent injunction had been modified h the davenport partnership examination respondent conducted a tefra partnership audit of davenport for its through taxable years from through date winer was represented in the partnership audit proceedings by harris w freedman c p a freedman and shaye jacobson c p a jacobson who were both also engaged by the davenport partnership winer testified at the evidentiary hearing that he did not participate in the davenport audit during the entire audit either jacobson or freedman or both of them handled the audit on behalf of davenport as davenport's attorneys in fact beginning on date winer and davenport were represented by gordon and or deborah hack hack gordon testified at the evidentiary hearing at the request of respondent respondent also conducted tefra partnership_audits of six additional winer partnership sec_5 for their through taxable years the additional partnerships were dickinson hamilton masters pompano stevens and whitman recycling associates during the partnership audit proceedings winer signed forms 872-p consent to extend the time to assess tax attributable to items of a partnership hereinafter the consents to extend the period of limitations as tmp of davenport under section b b according to winer he signed the consents in order to avoid immediate assessments' being made against the investors every time winer received a request to sign a consent to extend the statutory period of limitations he would call his attorney or gordon for advice winer stopped signing the consents in late after one of his attorneys told him to stop signing the consents in order to wait and see what happens in tax_court the dates of the extension forms signed by winer were as follows taxable_year signed by winer signed by irs extension date taxable_year taxable_year taxable_year between and revenue_agent ray ealy ealy corresponded with winer and or jacobson regarding the davenport audit ealy addressed his correspondence to winer as tmp of davenport and winer identified himself as tmp in his dealings with ealy winer testified that he believed the documents from the irs were addressed to him as tmp because that was his administrative function in date ealy sent his summary report on the davenport audit to winer ealy's summary report disallowed the deductions and credits attributable to the sentinel eps recyclers on the primary ground that the recycler transactions were a sham and lacking in economic_substance winer informed ealy on date that he did not agree with ealy's summary report a closing conference was scheduled for date in order to give winer time to contact the other partners winer disagreed with the irs's appraisal report which placed a value of dollar_figure or dollar_figure each on the sentinel eps recyclers on date winer informed ealy that he had received no response from any of the partners and therefore there was no need for a closing conference winer told ealy that as tmp he would prefer to proceed through the irs appeals process respondent issued an examination_report to winer as tmp of davenport on date in the examination_report respondent disallowed all deductions and credits claimed with respect to davenport's recycling activity for the years through on date copies of the cover letter accompanying the examination_report and the report itself were mailed to all other partners of davenport including participants in response to respondent's examination_report winer's attorney hack filed a protest with the irs on behalf of winer in which winer argued that davenport was a for-profit venture and that the recyclers were not grossly overvalued winer did not allege that he was not the tmp or that he had been enjoined from serving as tmp i the plastics recycling project settlement offer after the protest was filed the davenport recycling case was assigned to irs appeals officer nelson leduc leduc in an date letter from leduc to winer respondent made the plastics recycling project settlement offer to davenport and the other tefra partnerships of which winer was general_partner the settlement offer was mailed to winer as tmp of davenport at davenport's business address and at winer's home address leduc sent blank copies of the offer letter to winer for his convenience so that winer could forward to each notice_partner the details of the government's offer the terms of the settlement offer were as follows the investor would be allowed a deduction for percent of his cash invested in the year of investment no business or energy tax_credits would be allowed the investor would concede the overvaluation penalty under sec_6659 at the 30-percent rate the investor would concede the sec_6621 interest the government would concede the additions to tax for negligence under sec_6653 and the government would concede the additions to tax for substantial_understatement under sec_6661 and the investor had to execute a closing_agreement leduc's settlement offer letter stated that the offer would not be repeated and would be the best offer that would be made at any level of the irs leduc's letter also mentioned that this offer is identical for all investors within any entity identified as part of the plastics recycling group in addition leduc's letter clearly pointed out that the settlement offer would expire days from the date stamped on the letter winer did not recall receiving the offer letter from leduc according to winer if he had received the settlement offer he would have forwarded it to gordon karras testified at the evidentiary hearing that he received a letter from gordon regarding the settlement offer karras knew that gordon was the attorney for davenport in his letter gordon advised participants that they should not accept the settlement offer from the irs and that gordon was going to continue to pursue the case winer did not accept the settlement offer on behalf of any of the partnerships leduc closed the partnership cases as unagreed and recommended that fpaa's be issued j proceedings involving winer's tax_liabilities in his individual capacity on date a penalty under sec_6700 in the amount of dollar_figure was assessed against winer by the jacksonville florida irs district_director the notice of penalty charge stated that the penalty for promoting an abusive_tax_shelter had been assessed against winer for organizing assisting in the organization of or participating in the sale of an abusive_tax_shelter winer paid percent of the sec_6700 penalty assessment or dollar_figure on or about date thereafter on date winer filed a refund_suit regarding the sec_6700 penalty in the district_court for the southern district of florida this suit was captioned winer v united_states civil_action no 87-0175-civ-ryskamp on date jacksonville district_counsel wrote a defense letter to the doj which was handling the litigation of the sec_6700 penalty case regarding winer's suit among other things the defense letter referred to the sec_7408 injunction proceedings against winer and winer development corp but it raised no issues relating to winer's status as tmp of the plastics recycling partnerships involved although copies of the engineering reports showing the overvaluation of the recyclers were forwarded to doj with the defense letter no copies of the pleadings from the winer sec_7408 injunction proceeding were included at the time davis still had possession of the pleadings from the sec_7408 injunction case against winer and winer development corp this refund_suit ultimately was dismissed without prejudice because venue was improper on date winer refiled his refund_suit regarding the sec_6700 penalty in the district_court for the middle district of florida winer's complaint contained no information or any references to the sec_7408 injunction proceeding which had been filed against him by the united_states in a case similar to winer's 618_fsupp_718 m d fla the district_court held that the amount of the penalty asserted under sec_6700 was limited to the greater of dollar_figure or percent of the gross_income derived from each sale id pincite under the holding in waltman respondent's calculation of the sec_6700 penalty in winer's case was excessive and ultimately was reduced a notice_of_deficiency was issued to winer and his wife judith j winer on date the notice_of_deficiency was for winer's personal income taxes for the taxable years and through inclusive in the notice_of_deficiency respondent determined adjustments primarily related to winer's investment as a schedule c owner in certain sentinel epe and eps recyclers however the notice_of_deficiency also made adjustments for burnout gain for winer's mining partnerships partnership losses claimed in excess of basis and adjustments due to prior examinations respondent also determined additions to tax for delinquency negligence overvaluation and substantial_understatement of tax although winer testified that he did not contest any of the adjustments in the notice_of_deficiency because part of my settlement was that i wouldn't do that on date winer's attorney richard baron filed a petition on behalf of winer the petition was docketed as samuel l winer petitioner v commissioner of internal revenue respondent docket no in the petition winer set forth numerous arguments why respondent's adjustments were incorrect counsel for respondent in winer's personal income_tax case was attorney howard p levine levine of respondent's jacksonville district_counsel office winer's personal income_tax case was concluded by a stipulated settlement between winer and the office of miami district_counsel a decision in the case was entered on date which reflected deficiencies in tax and additions to tax in excess of dollar_figure not including additions to tax for negligence under sec_6653 and additional interest under sec_6621 in date winer filed for personal bankruptcy at the evidentiary hearing winer implied that his concession and subsequent bankruptcy were all part of a complicated scheme if you will or arrangement with the irs and that the government knew he would be filing for bankruptcy however during his deposition on date in the case of thompson v united_states 95-c-1112-b n d okla winer testified that the government did not link the outcome of his personal tax case to any of the plastics recycling partnership cases k the davenport partnership litigation both winer and davenport were represented during the davenport tefra partnership litigation by gordon at all times relevant hereto and by hack until her withdrawal in date respondent was represented during the davenport partnership litigation in this case by district_counsel attorneys mary p hamilton paul v colleran and kirk s chaberski and by assistant district_counsel william t hayes after the issuance of the fpaa's in the hamilton case winer wrote a memorandum to the partners of hamilton davenport and dickinson recycling associates including karras on date in his memorandum winer enclosed a copy of a notice of filing of petition for hamilton recycling associates and stated please be advised that we will do the same for dickinson davenport and any other partnerships that require this filing we sincerely hope that you will continue to support our legal defense fund so that we may continue to retain counsel to represent the partnership in order to obtain a favorable disposition of this matter on date respondent issued notices of fpaa7 to davenport proposing adjustments to davenport's through years in the fpaa's respondent disallowed all deductions and credits attributable to the sentinel eps recyclers copies of notices of fpaa issued to davenport were mailed to all notice partners of davenport including participants when winer received the notices of fpaa addressed to him as tmp of davenport he gave them to gordon and his accountant subsequently on date gordon filed a petition on behalf of winer in the subject case captioned davenport recycling associates sam winer tax_matters_partner v commissioner docket no gordon's firm had been employed by winer to file the petition with this court and gordon was aware that the case caption read sam winer tax_matters_partner at this stage in the case winer spoke frequently with gordon and winer allegedly believes he told gordon at some point prior to the filing of the petition that he was back in as the tmp of davenport in his petition to this court filed date winer alleged petitioner is the tax_matters_partner of the the notices of fpaa were issued to the following addresses mr samuel winer tax_matters_partner davenport recycling associates crystal cay bellair beach fl mr samuel winer tax_matters_partner davenport recycling associates p o box clearwater fl and tax_matters_partner davenport recycling associates p o box clearwater fl partnership winer had agreed to the filing of the petition eg in davenport recycling and knew that the caption of the case identified him as the tmp during his testimony at the evidentiary hearing lichtenstein was unable to recall whether he or dl associates had received notices of fpaa regarding davenport however respondent's records indicate that the notices of fpaa were issued by certified mail to dl associates on date lichtenstein never filed a petition in the case involving davenport in preparation for trial in the davenport recycling case respondent conducted discovery to which gordon and hack responded respondent's primary interest during discovery was in records relating to the placement and production of the sentinel eps recyclers and correspondence to and from the general_partner and tax_matters_partner samuel l winer during the course of discovery none of the discovery responses from gordon and hack contained any information regarding any sec_7408 injunction proceedings involving winer during the period of preparation for trial in the davenport recycling case respondent prevailed on the merits in test litigation with respect to the plastics recycling issues the case of harold m provizer and joan provizer docket no was chosen as a test case and ultimately was the only test case actually tried with respect to the underlying plastics recycling transaction as discussed previously provizer resolved in tcmemo_1992_177 has been uniformly viewed as the lead case involving sentinel epe recyclers during and respondent prepared four partnership cases as test cases the sab cases for the sentinel eps recycler on date the day the trial of the sab cases was scheduled to begin the tmp of these partnerships conceded all partnership adjustments in full in open court as a result of the tmp's concessions decisions were entered in favor of respondent in the sab test cases after the complete concession by the tmp in the sab cases respondent wrote to gordon on date and inquired as to how winer intended to proceed in his partnership cases respondent's letter stated please advise this office by date whether you will concede in full or try your cases in tax_court if we do not hear from you by date we will file motions to calendar your cases for trial thereafter on date respondent filed a motion to the cases involved were sab recycling associates sab management ltd tax_matters_partner v commissioner docket no sab recycling associates sab management ltd tax_matters_partner v commissioner docket no sab foam recycling associates sab management ltd tax_matters_partner v commissioner docket no and sab foam recycling associates sab management ltd tax_matters_partner v commissioner docket no calendar in the davenport recycling case in an order dated date this court set the davenport recycling case for trial in detroit michigan on date sometime after the davenport recycling case was set for trial gordon advised respondent that winer would concede all partnership level adjustments in davenport recycling and the other partnership cases but that winer could not certify that all of the other partners would also concede the davenport recycling case was conceded at the direction of winer gordon did not make any recommendations to winer as to whether or not winer should concede during the evidentiary hearing gordon admitted that he did not send a copy of respondent's motion for entry of decision or proposed decision to davenport's limited partners gordon also testified that he did not know whether winer had sent copies of respondent's motion for entry of decision or proposed decision to davenport's limited partners however karras' testimony is that winer never directly communicated to him that the irs had filed a motion for entry of decision and a proposed decision in the davenport recycling case on date respondent mailed to this court a motion for entry of decision under rule b and a proposed decision on date respondent's motion for entry of decision was granted on date respondent's proposed decision was entered as the decision of this court at the conclusion of the partnership level proceeding pursuant to sections a and a and the deficiencies attributable to the disallowed davenport partnership items were assessed against the partners including participants during the pendency of the davenport partnership proceeding none of the notice partners of davenport including participants ever moved to participate or intervene no partner purporting to be a replacement tmp ever filed a petition on behalf of davenport on date more than year after this court had entered a final_decision in the davenport recycling case hayes of the boston district_counsel office wrote a letter to the clerk of the district_court requesting copies of the orders entered in the winer sec_7408 injunction proceeding hayes indicated in his letter that he was requesting the information in order to respond to allegations made by taxpayers in a number of cases filed with this court on date hamilton also of the boston district_counsel office wrote to the clerk with a second request for copies of the orders on date in a memorandum to the jacksonville district_counsel office hayes requested information regarding both the winer sec_7408 injunction case and the winer sec_6700 penalty case hayes wrote that his office needed winer's old sec_7408 and sec_6700 files in connection with approximately tefra penalties cases in which winer was the tmp hayes also requested that any jacksonville attorney who had worked on the winer cases contact hamilton in response to hayes' memorandum on date levine faxed hamilton copies of the final judgment of permanent injunction winer's affidavit and fieldstone's accompanying cover letter the joint motion for an order granting specific relief from final judgment of permanent injunction the memorandum in support of joint motion the order granting specific relief and a date letter from james a strickland c p a the facsimile transmission memorandum and strickland letter indicated that the documents from the winer sec_7408 injunction proceeding had been submitted to the irs problem resolution office in jacksonville florida in date before hamilton's receipt of these documents in date the boston office of district_counsel was unaware that in response to the joint motion the district_court initially had removed winer as tmp of davenport in date and then purportedly reinstated him as tmp for the purpose of providing administrative services in date discussion we must decide whether grounds exist in this case to grant participants' motion under rule sec_161 and sec_162 for special leave to file a motion to reconsider or vacate what is otherwise a final_decision of this court participants argue that their motion should be granted because this court never had jurisdiction over the underlying case since winer was not authorized to file a petition with this court participants further contend that fraud was committed upon this court by respondent additionally they argue that the notices of fpaa were not timely partici- pants' motion is based upon their wish to have this court vacate the underlying decision so they no longer will be responsible for amounts that have been assessed against them by respondent in response respondent argues that winer was the proper tmp of davenport with authority to file the petition with this court and in the alternative that participants' motion should be denied because a timely petition was filed by winer as notice_partner and ratified by the other partners of davenport additionally respondent strongly denies committing fraud upon this court respondent points out that participants' arguments concerning the alleged expiration of the statutory period for assessment are not relevant since those arguments involve an affirmative defense that was not raised timely and do not affect this court's jurisdiction the date of a decision of this court is the date an order specifying the amount of the deficiencies is entered in the records of the tax_court here date sec_7459 a decision of this court becomes final upon expiration of the time to file the notice of appeal if no notice of appeal is filed sec_7481 generally a notice of appeal must be filed within days after the decision is entered by this court sec_7483 fed r app p a therefore the decision in this case became final on date participants' motion in this case was not filed until date because the decision in this case was entered pursuant to a stipulated settlement with respondent by winer as the purported tmp there is no underlying opinion for this court to reconsider therefore participants are not within the general rules for reconsideration of an opinion under rule and their motion for reconsideration is denied once a decision becomes final this court may vacate the final_decision only in certain narrowly circumscribed situations the court may vacate a final_decision if that decision is shown to be void or a legal nullity for lack of jurisdiction over either the subject matter or a party 868_f2d_1081 9th cir 90_tc_103 69_tc_999 the court may also vacate a final_decision if there has been a fraud on the court 859_f2d_115 9th cir affg 86_tc_1319 511_f2d_929 2d cir participants filed their motion approximately months after the decision became final as we have noted participants argue that their motion to vacate should be granted because the court did not have jurisdiction over the underlying case and also because there was a fraud upon the court a party seeking to vacate a final_decision bears the burden_of_proof abeles v commissioner supra pincite in this case participants also allege that the fpaa's were not timely issued since under the terms of the permanent injunction and subsequent modification winer was not authorized to execute consents extending the period of limitations because his authority as tmp was restricted to the performance of administrative services however we decline to address participants' allegations that the consents executed by winer as tmp were ineffective to extend the time for respondent to issue an fpaa because allegations concerning the period of limitations constitute an affirmative defense not a plea to the jurisdiction of this court rule 93_tc_562 the timeliness of the fpaa is not relevant to the jurisdiction of this court under sec_6226 concerning judicial review of final partnership administrative actions genesis oil gas ltd v commissioner supra for the purpose of deciding participants' motion our focus is on the validity of the petition and not upon the timeliness of the fpaa's in the instant case there was no trial no evidence was adduced no stipulations were filed in the record and the stipulated decision does not recite any factual or legal bases upon which the deficiency was settled the compromise and settlement of tax cases are governed by general principles of contract law 52_tc_420 supplemented by 53_tc_275 39_tc_602 affd 328_f2d_622 6th cir where a decision is entered pursuant to a stipulated settlement the parties are generally held to their agreement without regard to whether the decision is correct on the merits 90_tc_315 42_tc_110 within this framework participants ask for leave to file their motion to vacate lack of subject matter jurisdiction this court has jurisdiction to vacate a decision that has become final if we find that we lacked jurisdiction when we entered the decision 83_tc_626 brannon's of shawnee inc v commissioner supra pincite the tax_court is a court of limited jurisdiction and may exercise jurisdiction only to the extent expressly permitted by statute see sec_7442 95_tc_560 sec_6226 vests this court with subject matter jurisdiction to determine all partnership items of the partnership for the partnership taxable_year to which the fpaa relates and the proper allocation of those items among the partners our jurisdiction over a partnership action is predicated upon the mailing of an fpaa by the commissioner to the tmp and the timely filing by the tmp or other eligible_partner of a petition seeking readjustment of partnership items sec_6223 sec_6226 and b rule c 92_tc_363 affd without published opinion 899_f2d_1225 9th cir once a taxpayer invokes the court's jurisdiction jurisdiction lies with the court and remains unimpaired until the court has decided the controversy 85_tc_527 the tmp may file a petition_for_readjustment with this court within days after the commissioner mails the fpaa to that partner sec_6226 when the tmp does not file a petition within the 90-day period a notice_partner or 5-percent group may file a petition_for_readjustment with this court within days after the close of the 90-day period sec_6226 these time limits are jurisdictional and if a petition is untimely it must be dismissed 94_tc_794 the tmp of a partnership is defined in sec_6231 as follows tax_matters_partner --the tax_matters_partner of any partnership is-- a the general_partner designated as the tax_matters_partner as provided in regulations or b if there is no general_partner who has been so designated the general_partner having the largest profits interest in the partnership at the close of the taxable_year involved if there is no general_partner designated under subparagraph a and the secretary determines that it is impracticable to apply subparagraph b the partner selected by the secretary shall be treated as the tax_matters_partner a petition filed during the 90-day period by a partner other than the tmp is an invalid petition 95_tc_227 89_tc_198 in this case because of the existence of the permanent injunction and subsequent modification at the time he filed the petition winer was the tmp of davenport but he had been ordered to limit his function to administrative services on behalf of the partnership under normal circumstances this court lacks jurisdiction to consider a petition filed by a person who is not authorized to file the petition in 95_tc_51 affd without published opinion 995_f2d_235 9th cir the u s district_court for the central district of california had appointed a receiver pendente lite for two limited_partnerships purportedly authorized to perform the duties of a tmp in proceedings before the irs or other tax or administrative agency we held that the receiver was not a partner and thus could not meet the statutory requirement that the tmp be a partner the receiver was not qualified to file a petition in this court because he was not a tmp and also because the receiver's authorization to act in administrative proceedings did not authorize him to act before this court id pincite although winer's ability to act as tmp was limited to the performance of administrative services at the time winer filed the petition in this court he was the sole general_partner of davenport and thus met the statutory requirement that the tmp be a partner therefore by the terms of the controlling statute winer was not prohibited from filing a petition with this court in this case respondent mailed fpaa's to winer as tmp of davenport at two separate addresses in addition to mailing an fpaa simply to davenport's tmp without identifying winer as such furthermore copies of the fpaa's issued to davenport were mailed to all notice partners of davenport including participants no argument was made by participants that there was no notice or inadequate notice instead participants argue that respondent by mailing duplicate notices of fpaa's to winer as tmp of davenport created the circumstances in the instant case which allowed winer to exceed his limited authority as tmp and file an unauthorized and therefore invalid petition participants further allege that respondent committed fraud upon the court by sending winer the fpaa because respondent knew that winer had been enjoined from acting as tmp in the litigation of this case in 100_tc_353 we held that the principles of implied ratification apply in tefra partnership cases that case involved a tefra real_estate partnership mishawaka properties co mishawaka which had no designated tmp mishawaka was one of a group of related partnerships both tefra and non-tefra of which sol finkelman finkelman was managing partner although finkelman was a partner he was not the partner with the largest profits interest during a period of more than years except for litigation counsel retained by finkelman finkelman was the only partner or person who dealt with the commissioner's agents appeals officers and counsel in connection with the audit of about of the partnerships some of which were later litigated as test cases id pincite the dispute involving mishawaka was not settled and litigation ensued because there was a question regarding the identity of mishawaka's tmp the commissioner issued triplicate fpaa's to sol finkelman edmond a malouf malouf and mishawaka malouf was the partner with the largest profits interest finkelman who was not the tmp filed a petition within the days reserved for filing a petition by the tmp in the petition finkelman identified himself as the tmp in addition before the filing of the petition finkelman had prepared and signed all the partnership returns and acted as mishawaka's managing partner and accountant finkelman had identified himself as the tmp in his correspondence with the other partners and advised them that he would be filing a petition in this court on their behalf id pincite one year after he had filed the petition finkelman notified the other partners that he could no longer finance the litigation and advised them to form committees to finance and organize the litigation no partner took any_action to disavow repudiate or manifest objection to finkelman's filing of the petition until years afterward when a participant moved to dismiss the case for lack of jurisdiction on the grounds that finkelman was not the proper tmp id pincite in mishawaka we denied participant's motion to dismiss for lack of jurisdiction and held that we had jurisdiction over the case we reached this holding by finding that the doctrine_of ratification which applied in deficiency cases 70_tc_623 applied in tefra cases as well where state law is consistent with the principle of implied ratification new york's partnership law the law governing the davenport partnership_agreement specifically indicates that the law of agency applies to partnerships n y partnership law sec_4 mckinney inasmuch as ratification9 is an agency concept it applies here under new york law ratification by implication may be found to exist where a principal fails to disaffirm the action of an agent within a reasonable_time 26_f3d_370 2d cir moreover in mishawaka we found evidence that persons who were qualified to file the petition had authorized or consented to the filing of the petition by finkelman under the doctrine_of ratification such a petition was an imperfect petition which was then impliedly ratified by the other partners when they failed to protest finkelman's filing of the petition in earlier cases we had allowed partners to perfect an imperfect petition in a tefra case where there was evidence that the partners had authorized the filing of the petition and wanted this court to find jurisdiction montana sapphire associates ltd v a ratification occurs when the benefits of the purportedly unauthorized acts are accepted with full knowledge of the facts under circumstances demonstrating an intent to adopt the unauthorized arrangement in re securities group 926_f2d_1051 11th cir citing 835_f2d_32 2d cir commissioner 95_tc_477 however in mishawaka properties co v commissioner supra pincite the court explicitly noted that the partners were seek ing refuge behind the fact that finkelman may not have been the tmp when the petition was filed because they believe the period for assessment had expired and do not now wish to ratify adopt sanction or in any way breathe life into the finkelman petition despite the mishawaka partners' later attempts to disavow the petition filed by finkelman we found that ratification of the petition was implied on the basis of the partners' conduct after the filing of the petition even though none of the partners had expressly ratified the petition the partners in mishawaka were aware that finkelman had represented them before the irs both individually and as a group partnership on all business and tax matters involving mishawaka additionally the partners knew about the fpaa's and that finkelman had filed a petition or was acting on their behalf in connection with the irs id pincite the commissioner had treated the petition as precluding assessment of deficiencies against the partners until the partnership proceeding was concluded we found that the partners had relied on finkelman both before and after the filing of the petition under consideration and did not question his authority until it became advantageous to do so the partners here voluntarily permitted finkelman's petition and apparent authority to exist a situation that should not redound to their own benefit and to respondent's detriment id pincite participants in the instant case are in a situation similar to that of the partners in mishawaka during the davenport audit and subsequent proceedings winer was the only partner or person who dealt regularly with respondent's agents appeals officers and counsel except for gordon and hack who were chosen by winer as litigation counsel and the accountants also chosen by winer at all relevant times winer retained his position as the sole general_partner of davenport both winer and his attorney gordon held winer out to respondent as tmp respondent sent notices of fpaa's to winer and all of the notice partners of davenport including participants and dl associates when the petition was filed in this case winer identified himself as the tmp of davenport as in mishawaka respondent treated the petition filed by winer as precluding assessment of deficiencies against the partners until the partnership proceeding was concluded in addition before the filing of the petition winer had signed all of the partnership returns as general_partner winer chose accountants to handle the partnership audit and hired attorneys to handle the partnership litigation winer provided the investors with tax information for the purposes of filing returns status reports regarding the davenport recycling machines information regarding the original injunction proceedings involving pi particularly notice that a petition had been filed in the davenport recycling case and other partnership cases and progress reports regarding the provizer trial and appeal participants and the other limited partners received this information from winer and were aware that he was taking charge of the davenport recycling litigation participants did not question his authority as tmp until after they were assessed by respondent 'deficiencies ex post do not detract from authority ex ante ' disanza v commissioner tcmemo_1993_142 quoting 932_f2d_598 7th cir revg and remanding t c memo affd without published opinion 9_f3d_1538 2d cir in addition winer assisted gordon and hack by providing information to them so they could respond to respondent's discovery requests the evidence clearly indicates that all the limited partners including karras were aware that winer had filed a petition in this court and intended to represent the limited partners in the subsequent litigation during the evidentiary hearing on this matter karras testified that he received the fpaa's in time to file a petition in this court but chose not to because he knew that winer had filed a petition in this case furthermore karras had received a notice that winer had filed a petition on behalf of davenport in the capacity of tmp consequently we conclude that karras and the other limited partners ratified winer's filing of the petition we have held that a taxpayer can ratify a previously filed imperfect petition even in the absence of express approval through action or inaction implicitly approving the filing of the petition 100_tc_353 70_tc_623 participants attempted to disavow the validity of the petition only after they thought the period of limitations on assessment had expired however as we stated in lyon v commissioner t c memo it was petitioner's duty to repudiate the petition as soon as he learned of it if he had not authorized it therefore by waiting until to repudiate the petition that karras knew winer had filed in karras impliedly ratified it karras had the duty and was in a position to disaffirm any unauthorized acts long before filing the motion now before the court kraasch v commissioner supra pincite not until long after the decision in this case became final did any partner in davenport take any_action to disavow repudiate or manifest objection to winer's filing of the petition we note that at a minimum many of davenport's partners had reason to question winer's authority to file the petition because prior to their receipt of the date memorandum from winer regarding the hamilton case their last official correspondence from winer had been notification that he had been ordered by the district_court to resign as tmp of the partnerships and waive his right to participate in any court proceedings winer ultimately settled this case with respondent and failed to inform the other partners karras testified that he did not learn that the case had been settled until he was assessed by respondent for his share of the partnership deficiency however karras offered no reasonable explanation why he did not take steps to keep himself informed of the status of the case or why he did not make any inquiries of winer when he received no further information although karras is not an attorney he is a sophisticated businessman with experience dealing with complicated matters we note that he employed a c p a who appeared as a witness in other plastics recycling litigation and had some contact with plastics recycling partnerships other than davenport it seems reasonable to us that an individual who is aware that he has a financial stake in the outcome of any litigation in this court would take whatever steps were necessary to keep himself informed the same would hold true for the other partners of davenport which we have noted required an investment of dollar_figure per unit in any event winer's failure to notify the limited partners of his decision to enter into a settlement with respondent does not justify the extraordinary relief of vacating the final_decision in this case winer's failure to act was directed to the limited partners and not the court and does not affect our jurisdiction see sec f fraud on the court in the alternative participants argue that respondent's attorneys hamilton and hayes committed fraud on the court because they continued to deal with winer as tmp of davenport despite their knowledge of the contents of the permanent injunction and modification in their briefs and during the evidentiary hearing on this matter participants made very specific and accusatory statements concerning the actions and behavior of hamilton and hayes in this case however after a full evidentiary hearing and full briefing of this issue by both parties we find that there is no evidence that hamilton or hayes committed any fraud on the court we further specifically find that hamilton and hayes had no knowledge of the terms or outcome of the sec_7408 injunction proceeding against winer before the decision in this case was entered we defined fraud on the court in abatti v commissioner t c pincite as follows fraud on the court is only that species of fraud which does or attempts to defile the court itself or is a fraud perpetrated by officers of the court so that the judicial machinery can not perform in the usual manner its impartial task of adjud g ing cases that are presented for adjudication fraud inter partes without more should not be a fraud upon the court toscano v commissioner f 2d pincite quoting j moore federal practice par dollar_figure 2d ed to prove such fraud the petitioners must show that an intentional plan of deception designed to improperly influence the court in its decision has had such an effect on the court the burden is on the moving party to show such fraud by clear_and_convincing evidence 113_f3d_670 7th cir affg tcmemo_1995_209 kraasch v commissioner supra pincite in the instant case participants' allegation of fraud upon the court is based on evidence that respondent's jacksonville district_counsel office signed and filed the answer in the davenport recycling case acknowledging winer as tmp although the same office had initiated the sec_7408 injunction proceeding which resulted in winer's being ordered to resign as tmp by the district_court according to participants it then follows that hamilton and hayes of respondent's boston district_counsel office knew that winer had been enjoined from acting as tmp of davenport yet continued to deal with him as such in order to achieve a favorable outcome in the davenport recycling case for respondent therefore according to participants the conclusion of this case by a stipulated settlement between respondent and winer acting as tmp of davenport was a fraud on the court in the instant case participants in alleging that hamilton and hayes committed fraud on the court ignore the fact that through his actions winer himself advised the court that he was the tmp of davenport for example winer signed forms naming gordon and hack as attorneys for davenport in his capacity as tmp submitted a protest in the davenport recycling case identifying himself as the tmp and in informal discussions with respondent's agents held himself out as the tmp of davenport furthermore the modification did reinstate winer as tmp albeit with restrictions on the scope of his authority on the basis of our review of the evidence we find that participants' allegations of fraud on the court are groundless participants have failed to show that hamilton and hayes had actual or imputed knowledge of the content of the permanent injunction and modification either before or during the davenport recycling litigation hamilton and hayes both filed detailed affidavits with this court stating that they had no knowledge of the winer tmp issue prior to date the date the decision in this case became final we have no reason to disbelieve their assertions that they did not know about the existence of the permanent injunction and modification until the spring of when a petition was filed in a plastics recycling tefra penalties case captioned david e and jean h kohn v commissioner docket no on the basis of this record we hold that respondent did not commit fraud on the court there is no evidence that hamilton and hayes had any involvement in the winer sec_7408 injunction proceeding the letter authorizing the doj to seek injunctive action against winer under sec_7408 originated in the jacksonville district_counsel office and was signed by the district_counsel there participants did not call the district_counsel or any other member of the jacksonville district_counsel office to testify regarding any possible communications with hamilton and hayes which would have alerted them to the existence of the permanent injunction and modification because we have concluded that a petition conferring jurisdiction on this court was filed and that there has been no fraud on this court in this case it follows that participants' motion for special leave to file motion for reconsideration of decision or to vacate decision will be denied an appropriate order will be issued