Peter A. Calderone v. Comm'r of Internal Revenue

200 F. App'x 891

• Court: Court of Appeals for the Eleventh Circuit
• Decided: October 13, 2006
• Docket: 05-15468, 05-15469
• Status: Unpublished

Opinion

PER CURIAM:

Appellants Geoffrey K. Calderone, Sr., and his brother, Peter A. Calderone, contend the U.S. Tax Court abused its discretion when it denied their October 2003 motion for leave to file a motion to vacate the Tax Court’s February 2002 stipulated final decisions. 1 Specifically, Appellants argue these stipulated final decisions resulted from fraud on the court by their former attorney, Arthur Jacob, and the Commissioner’s attorneys, David Weiner and David Conrad. This Circuit has not recognized fraud on the court as a ground for vacating a tax court’s final decision. We need not reach the issue in this case. The Tax Court did not abuse its discretion because the record and relevant case law supports its finding that no fraud on the court occurred. See 89 T.C.M. (CCH) 1479, 2005 WL 1484042 (2005); see also Davenport Recycling Assocs. v. Comm’r, 220 F.3d 1255, 1262 (11th Cir.2000) (holding, based on the totality of the facts, the Tax Court did not abuse its discretion in rejecting the appellants’ fraud-on-the-court claim).

AFFIRMED.

1 . Appellants also assert the Tax Court (1) abused its discretion when it denied their December 2004 motion for leave to amend their October 2003 motion to include a request for relief under Federal Rule of Civil Procedure 60(b), and (2) clearly erred in reaching several findings of fact. We disagree. Given Appellants’ failure to make their December 2004 motion until the day of the evidentiary hearing, we conclude the Tax Court did not abuse its discretion in denying the motion. Additionally, after reviewing the record, we determine the Tax Court had ample evidence to support the challenged findings.