BYERS v. COMMISSIONER OF INTERNAL REVENUE (2020)

ORDER

Upon consideration of the motion for summary affirmance, the response thereto, and the reply; and the court's order to show cause filed on January 8, 2020, it is

ORDERED that the order to show cause be discharged. It is

FURTHER ORDERED that the motion for summary affirmance be granted. The merits of the parties' positions are so clear as to warrant summary action. See Taxpayers Watchdog, Inc. v. Stanley, 819 F.2d 294, 297 (D.C. Cir. 1987) (per curiam). The Tax Court did not abuse its discretion in denying appellant's motion for leave to file a motion to vacate the Tax Court's order granting summary judgment.

The Tax Court's summary judgment order became final upon the Supreme Court's denial of appellant's certiorari petition and subsequent petition for certiorari rehearing in Byers v. C.I.R., No. 14-74 (Oct. 6, 2014 and Dec. 15, 2014), and the Tax Court therefore lacked jurisdiction to grant a motion to vacate that order at the time it ruled on appellant's motion, see 26 U.S.C. § 7481(a)(2)(B), unless an exception for fraud on the court applies. This court need not decide at this juncture whether it recognizes such an exception, however, because appellant has not demonstrated that fraud on the court occurred in this case. See, e.g., Cobell v. Norton, 334 F.3d 1128, 1148 (D.C. Cir. 2003) (“[F]raud on the court is a narrow concept, limited to the most egregious conduct involving corruption of the judicial process itself.”); Greater Boston Television Corp. v. FCC, 463 F.2d 268, 278 n.16 (D.C. Cir. 1971) (“[T]he concept of fraud on the court ․ does not extend to an omission more fairly characterized as a ‘mistake of judgment.’ ”). Specifically, appellant has not shown that appellee intentionally misled the Tax Court with respect to the formal assessment status of a failure-to-pay penalty charged to appellant pursuant to 26 U.S.C. § 6651(a)(3).

Pursuant to D.C. Circuit Rule 36, this disposition will not be published. The Clerk is directed to withhold issuance of the mandate herein until seven days after resolution of any timely petition for rehearing or petition for rehearing en banc. See Fed. R. App. P. 41(b); D.C. Cir. Rule 41.

Per Curiam