65 T.C. 1161">*1161 OPINION

On January 8, 1974, we entered decisions determining deficiencies in petitioner Amerada Hess Corp.'s income tax for the years 1964 and 1965 in accordance with our opinion filed November 14, 1973. 1976 U.S. Tax Ct. LEXIS 142">*143 White Farm Equipment Co., 61 T.C. 189">61 T.C. 189 (1973). On May 13, 1975, the United States Court of Appeals for the Third Circuit reversed those decisions. 517 F.2d 75 (3d Cir. 1975). ¹

On October 10, 1975, respondent petitioned the Supreme Court of the United States to issue a writ of certiorari to the Third Circuit to review that court's decision reversing us in the Amerada Hess dockets. On December 15, 1975, the Supreme 65 T.C. 1161">*1162 Court denied respondent's petition for certiorari, and on December 22, 1975, the Third Circuit issued its mandate directing us to enter judgments1976 U.S. Tax Ct. LEXIS 142">*144 in the Amerada Hess dockets in accordance with the opinion of that court. Respondent has not petitioned the Supreme Court for a rehearing on the denial of certiorari nor has he sought an extension of time in which to file such petition.

On September 10, 1975, White Farm timely filed a petition for a writ of certiorari to the Third Circuit with the Supreme Court. In these proceedings before the Supreme Court the decision of the Third Circuit in the White Farm docket was not consolidated with its decisions in the Amerada Hess dockets. On December 15, 1975, the Supreme Court denied White Farm's petition for a writ of certiorari.

White Farm timely filed a motion for extension of time in which to file a petition for rehearing on the denial of its petition for certiorari. On January 9, 1976, Mr. Justice Brennan signed an order extending White Farm's time in which to file a petition for rehearing, and on February 4, 1976, Mr. Justice Brennan approved a further extension of time until April 16, 1976.

On January 12, 1976, under Rule 155 proceedings pursuant to the mandate of the Third Circuit, we ordered the parties in the Amerada Hess dockets to submit agreed-upon computations and forms1976 U.S. Tax Ct. LEXIS 142">*145 of decisions, or to otherwise move, by February 25, 1976. The parties in the Amerada Hess dockets agree that there is no tax deficiency or liability for 1964 and that there is an overpayment in taxes in 1965 of $ 1,320,567.40. No dispute exists between the parties in the Amerada Hess dockets as to the proper form of decisions to be entered by us in those dockets under the Third Circuit mandate.

On February 25, 1976, respondent moved this Court to continue its entry of decisions in the Amerada Hess dockets and in the White Farm docket pending the outcome of White Farm's not-yet-filed petition for rehearing in the Supreme Court. On the same date petitioner Amerada Hess filed a motion for immediate entry of decisions in the Amerada Hess dockets.

We heard the motions on March 3, 1976. Pursuant to the agreement of the parties in the White Farm docket we granted the requested continuance until May 19, 1976. We ordered the parties in the Amerada Hess dockets to file simultaneous 65 T.C. 1161">*1163 memorandum briefs on or before March 11, 1976, regarding respondent's motion for a continuance.

The sole issue before us is whether we have the discretion to grant a continuance delaying the entry1976 U.S. Tax Ct. LEXIS 142">*146 of decisions pursuant to the mandate of the United States Court of Appeals where no dispute exists between the parties as to the computations or form of decisions, and where the mandate of the Circuit Court is in full force and effect.

Respondent contends that the interests of justice can only be served by granting his motion for continuance. He submits that should the Supreme Court grant White Farm's petition for rehearing and reverse the Third Circuit's opinion, he will be left without a remedy to reopen the decisions in the Amerada Hess dockets because those decisions will have become final under section 7481(a)(3)(B). ² Should this eventuality occur approximately $ 4.6 million in tax revenue would be lost.

The petitioner argues that we have merely a ministerial duty to enter decisions in the Amerada Hess dockets and no discretion to do otherwise. We agree with petitioner, deny respondent's motion for a continuance, 1976 U.S. Tax Ct. LEXIS 142">*147 and grant petitioner's motion for immediate entry of decision.

Under section 7481(a)(3)(B), our decisions in the Amerada Hess dockets, rendered in accordance with the mandate of the Third Circuit, will become final 30 days after entry. Once our decisions become final under section 7481 there is no remedy available to the respondent to reopen that case. R. Simpson & Co. v. Commissioner, 321 U.S. 225">321 U.S. 225 (1944). In Simpson the Supreme Court held that regarding the finality of a Tax Court decision the Supreme Court has no inherent power to reopen the case. The Supreme Court based its holding in Simpson on the predecessors ³ to section 7481(a)(3)(B), citing the necessity "to determine definitely the date on which the statute of limitations, suspended during appeal, begins to run again and assessment may be made by the Commissioner." ⁴321 U.S. 225">321 U.S. at 228. Absent fraud upon this 65 T.C. 1161">*1164 Court, we likewise have no authority to reopen a final decision. Lasky v. Commissioner, 235 F.2d 97 (9th Cir. 1956), affd. per curiam 352 U.S. 1027">352 U.S. 1027 (1957); William L. Taub, 64 T.C. 741">64 T.C. 741, 64 T.C. 741">751 (1975).1976 U.S. Tax Ct. LEXIS 142">*148

1976 U.S. Tax Ct. LEXIS 142">*149 Because respondent will lack a remedy after the decisions in the Amerada Hess dockets become final, he urges us to exercise discretion "in the interests of justice" and to delay entry of the decisions so that he will avoid potential liability to both taxpayers and not be caught in the middle as the only loser. However, the interests of justice are best served if we perform the duties that lie before us. Respondent has not cited to us one case that could support our exercise of discretion to delay entry of the decision in the Amerada Hess dockets. There is no authority to cite. Our own Rules ⁵ compel us to enter the decisions once the parties have agreed upon the computations. Rule 155(a), Tax Court Rules of Practice and Procedure.

1976 U.S. Tax Ct. LEXIS 142">*150 However, respondent insists that if we grant his motion for a continuance we will not be ignoring the mandate of the Third Circuit because we have inherent discretion to grant such a motion. We disagree. Obeying a higher court's mandate and proceeding in accordance with it are not matters for discretion. Gaines v. Rugg, 148 U.S. 228">148 U.S. 228, 148 U.S. 228">239 (1893). The mandate of the Third Circuit directs us to enter judgments in the Amerada Hess dockets in accordance with its opinion reported at 517 F.2d 75 (3d Cir. 1975). We are without power to do anything contrary to either the letter or the spirit of the mandate. Thornton v. Carter, 109 F.2d 316 (8th Cir. 1940). ⁶ The parties have agreed to the 65 T.C. 1161">*1165 proper form of the decisions and to the computations which are in accord with the Third Circuit's opinion. There is nothing left for us to do except to enter the decisions. Where the mandate requires only the execution of its decree, we are bound to execute it. 148 U.S. 228">Gaines v. Rugg, supra.Execution of the mandate's decree is a ministerial duty only. United States v. United States District Court, 272 F. 611">272 F. 611 (9th Cir. 1921).1976 U.S. Tax Ct. LEXIS 142">*151 Thus, it seems to us that to refuse entry of the decisions now would be to violate, or at least to ignore the mandate's directive. We cannot and will not frustrate the clear mandate of the Third Circuit which is presently in full force and effect.

Respondent has not explained to us why he did not seek to file a petition for rehearing of the denial of certiorari in the Amerada Hess dockets, nor why he did not seek an extension of time in which to file such petition. It seems to us that he can still seek relief from the proper authorities where he should have1976 U.S. Tax Ct. LEXIS 142">*152 sought it in the first place. Either the Third Circuit or the Supreme Court can grant appropriate relief before our decisions become final. The decisions in the Amerada Hess dockets will become final 30 days after entry.

Decisions have been entered for the petitioner.