In a notice of deficiency dated October 14, 1992, respondent determined deficiencies in petitioners' 1982 and 1983 Federal income taxes with respect to the same MAR Oil partnerships at issue in 1981. Steve Mather and Elliott H. Kajan timely filed a petition in response to the notice of deficiency. It became Docket No. 28098-92. A decision was entered in that case on April 14, 1994, in which petitioner1995 Tax Ct. Memo LEXIS 595">*601 was relieved of any liability for the deficiencies relating to the MAR Oil partnership based upon her qualification as an innocent spouse.

Subsequent to the entry of the Decision in Docket No. 28098-92, petitioner learned of the MAR Memorandum. Thereafter, petitioner filed her Motion for Leave and lodged her Motion to Vacate Decision in this case.

Discussion

The date of a decision of this Court is the date an order specifying the amount of the deficiency is "entered" in the records of the Tax Court, which, in this case, was April 13, 1990. Sec. 7459(c). A decision of this Court becomes final upon expiration of the time to file a notice of appeal if no notice of appeal is filed. Sec. 7481(a)(1). Generally, a notice of appeal must be filed within 90 days after the decision is entered by this Court. Sec. 7483; Fed. R. App. P. 13(a). A motion to vacate or revise a decision must be filed within 30 days after the decision is entered unless the Court "shall otherwise permit". Rule 162. A motion to vacate a decision, filed more than 30 days after entry of the decision, may be filed only by leave of the Court, usually by the granting of a motion for leave to file an untimely motion 1995 Tax Ct. Memo LEXIS 595">*602 to vacate. The granting of such a motion for leave to file a motion to vacate, or the granting of a timely motion to vacate, lies within the sound discretion of this Court. Heim v. Commissioner, 872 F.2d 245">872 F.2d 245, 872 F.2d 245">246 (8th Cir. 1989), affg. T.C. Memo. 1987-1; Lentin v. Commissioner, 237 F.2d 5">237 F.2d 5, 237 F.2d 5">6 (7th Cir. 1956). If a motion to vacate has been timely filed, the 90-day period for filing an appeal is terminated, and the full time commences to run after the motion is adjudicated. Fed. R. App. P. 13(a).

Once a decision becomes final, this Court may vacate it only in narrowly circumscribed situations. Helvering v. Northern Coal Co., 293 U.S. 191">293 U.S. 191, 293 U.S. 191">193 (1934). The Court may vacate a final decision if it is shown to be void, or a legal nullity, for lack of jurisdiction over the subject matter or a party. Billingsley v. Commissioner, 868 F.2d 1081">868 F.2d 1081 (9th Cir. 1989); Abeles v. Commissioner, 90 T.C. 103">90 T.C. 103, 90 T.C. 103">105-106 (1988); Brannon's of Shawnee, Inc. v. Commissioner, 71 T.C. 108">71 T.C. 108, 71 T.C. 108">111-112 (1978).1995 Tax Ct. Memo LEXIS 595">*603 The Court may vacate a final decision if there has been a fraud on the Court. Abatti v. Commissioner, 859 F.2d 115">859 F.2d 115 (9th Cir. 1988), affg. 86 T.C. 1319">86 T.C. 1319 (1986); Senate Realty Corp. v. Commissioner, 511 F.2d 929">511 F.2d 929, 511 F.2d 929">931 (2d Cir. 1975); Stickler v. Commissioner, 464 F.2d 368">464 F.2d 368, 464 F.2d 368">370 (3d Cir. 1972); Toscano v. Commissioner, 441 F.2d 930">441 F.2d 930 (9th Cir. 1971), vacating and remanding 52 T.C. 295">52 T.C. 295 (1969).

The decision in this case was entered pursuant to a stipulated settlement. 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 is governed by general principles of contract law. Robbins Tire & Rubber Co., v. Commissioner, 52 T.C. 420">52 T.C. 420, 52 T.C. 420">435-436, supplemented by 53 T.C. 275">53 T.C. 275 (1969); Brink v. Commissioner, 39 T.C. 602">39 T.C. 602, 39 T.C. 602">606 (1962), affd. 328 F.2d 622">328 F.2d 622 (6th Cir. 1964).1995 Tax Ct. Memo LEXIS 595">*604 Where a decision is entered pursuant to a stipulated settlement, the parties are usually held to their agreement without regard to whether the decision is correct on the merits. Stamm International Corp. v. Commissioner, 90 T.C. 315">90 T.C. 315, 90 T.C. 315">321-322 (1988); Spector v. Commissioner, 42 T.C. 110">42 T.C. 110 (1964).

It is within this framework that petitioner asks for leave to file the Motion to Vacate. Petitioner contends that by failing to advise her of the innocent spouse "opportunity", Mr. Stillman and the Hochman firm committed a fraud on this Court sufficient to justify granting the two motions. Petitioner asserts that Mr. Stillman purportedly perpetrated this fraud by failing to send the MAR Memorandum to her, while the Hochman firm ignored the fact that the Statement of Settlement was not signed by petitioner and proceeded to carry out the settlement process.

Initially, respondent filed no objection to granting of the Motion for Leave, but Mr. Stillman filed an objection. Petitioner objected and contended that Mr. Stillman had no standing to contest these proceedings. The Court set the motion for a hearing in which Mr. Stillman was 1995 Tax Ct. Memo LEXIS 595">*605 permitted to participate. Although Mr. Stillman's evidence was accepted for what it was worth, this Court generally gives little weight to a taxpayer's opposition to the spouse's entitlement to innocent spouse relief. See Garvey v. Commissioner, T.C. Memo. 1993-354; Estate of Ravetti v. Commissioner, T.C. Memo. 1989-45. Respondent, on brief, argued against granting the Motion for Leave.

We defined "fraud on the court" in Abatti v. Commissioner, 86 T.C. 1319">86 T.C. 1319, 86 T.C. 1319">1325 (1986), affd. 859 F.2d 115">859 F.2d 115 (9th Cir. 1988), 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 adjudging cases that are presented for adjudication. Fraud, inter partes, without more, should not be a fraud upon the court * * *" Toscano v. Commissioner, 441 F.2d 930">441 F.2d at 933, quoting 7 J. Moore, Federal Practice, par. 60.33 (2d ed. 1970). To prove such fraud, the petitioners1995 Tax Ct. Memo LEXIS 595">*606 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. * * * [Citations omitted.]"

The burden is on the moving party to show such fraud by clear and convincing evidence. Kraasch v. Commissioner, 70 T.C. 623">70 T.C. 623, 70 T.C. 623">626 (1978); Spielberger v. Commissioner, T.C. Memo. 1989-444. Gross neglect on the part of taxpayer's counsel does not constitute fraud on the Court. Kenner v. Commissioner, 387 F.2d 689">387 F.2d 689 (7th Cir. 1968).

In our opinion petitioner has failed to establish that a fraud was perpetrated on this Court. While it is true that petitioner did not receive a copy of the MAR Memorandum, it does not follow that receipt by her of that document would have made any difference. During that time frame, petitioner was mainly concerned with the welfare of her son and paid little attention to the various materials sent to her by her lawyers. Thus, we conclude that she either knew or should have known about the innocent spouse defense because of the ongoing negotiations between 1986 and 1990 related to her divorce and1995 Tax Ct. Memo LEXIS 595">*607 the division of property. Finally, even if Mr. Stillman's actions constituted some sort of fraud, we do not think it was a fraud on the Court, but only as to petitioner, for which some other remedy may be available in another forum.

As to the actions of the Hochman law firm in proceeding with the settlement process without petitioner's signature on the Statement of Settlement, we do not find that any fraud on the Court has been committed, particularly in view of petitioner's signature on the stipulated decision document. We are not called upon, and do not make, any finding as to whether there was any neglect on the part of the Hochman firm.

Petitioner relies on Toscano v. Commissioner, 441 F.2d 930">441 F.2d 930 (9th Cir. 1971), to support her claim of fraud on the Court. However, the facts in Toscano are distinguishable from the instant case. Mr. Toscano was not married when he filed what purported to be a joint return. The Court of Appeals held that, if Ms. Zelasko could prove that Mr. Toscano either forged her signature as his spouse or coerced her to sign the joint return against her will, then Mr. Toscano perpetrated three frauds. First, he defrauded the1995 Tax Ct. Memo LEXIS 595">*608 Commissioner by filing a fraudulent joint income tax return claiming he owed less tax than allowed by the law. Second, he defrauded Ms. Zelasko by purporting to make her liable for his taxes. Third, he carried this fraud to the Tax Court when he petitioned the Court for a redetermination of the deficiency. The fraud upon this Court culminated when the Court held Ms. Zelasko liable for the tax deficiency.

Unlike 441 F.2d 930">Toscano v. Commissioner, supra, petitioners in this case filed a joint return and were subject to joint and several liability for any deficiencies with respect to their joint return. Sec. 6013(d)(3). Petitioner was aware of the income tax case for which she could be held liable. She authorized and relied upon the Hochman law firm to handle her 1981 tax matters. She signed the stipulated decision entered by the Court. These facts clearly distinguish the Toscano case from the instant case.

Alternatively, petitioner urges this Court to grant the Motion for Leave based upon the independent authority of Rule 60(b) of the Federal Rules of Civil Procedure, which provides in pertinent part:

On motion and upon such terms as are just, the court1995 Tax Ct. Memo LEXIS 595">*609 may relieve a party or a party's legal representative from a final judgment, order, or proceeding for the following reasons: (1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59(b); (3) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party; (4) the judgment is void; (5) the judgment has been satisfied, released, or discharged, or a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective application; or (6) any other reason justifying relief from the operation of the judgment. The motion shall be made within a reasonable time, and for reasons (1), (2), and (3) not more than one year after the judgment, order, or proceeding was entered or taken. * * *

Petitioner's reliance on Rule 60(b) of the Federal Rules of Civil Procedure is without merit. The Tax Court Rules of Practice and Procedure are applicable here, along with the case law previously discussed. However, even if Rule 60(b) were 1995 Tax Ct. Memo LEXIS 595">*610 suitably adaptable to govern this situation, we note that by its terms any such motion for fraud, misrepresentation, or other misconduct of an adverse party must be made not more than one year after judgment (decision) was entered. Petitioner failed to timely make any such motion. Moreover, notwithstanding the cases cited by petitioner in her brief, we are not persuaded that the record reflects the compelling equitable considerations inherent in the phrase "any other reason justifying relief" contained in Rule 60(b)(6) of the Federal Rules of Civil Procedure.

Accordingly,

An order will be issued denying petitioner's Motion for Leave to File Motion to Vacate Decision Out of Time.