concurring: I disagree with the implication in this Court’s opinion that this Court is powerless to relieve a litigant of a final decision upon a proper showing made in connection with a motion subject to the principles of rule 60(b) of the Federal Rules of Civil Procedure (rule 60(b)). As I concluded in my concurring opinion in Estate of Branson v. Commissioner, 113 T.C. 6, 41 (1999), affd. 264 F.3d 904 (9th Cir. 2001), I believe that this Court is a court of law that has the authority to apply the judicial powers of a District Court. Whereas rule 60(b) authorizes a District Court upon motion by a litigant to relieve that litigant of a final judgment in certain extraordinary cases, I believe that this Court in those cases also has that authority for the reasons that I stated in Estate of Branson. I do not decide whether the Court in this case should grant a motion subject to the principles of rule 60(b) in that such a motion is not before us.
A. Motions in This Court To Vacate or Revise a Decision
Motions in this Court to vacate or revise a decision are covered by Rule 162, Tax Court Rules of Practice and Procedure (Rule 162). Pursuant to Rule 162, “Any motion to vacate or revise a decision, with or without a new or further trial, shall be filed within 30 days after the decision has been entered, unless the Court shall otherwise permit.” Rule 162 provides no guidance as to when this Court will file a motion to vacate more than 30 days after a decision is entered, or more importantly, when this Court will grant a motion to vacate.
Because Rule 162 is silent on this matter, I look for guidance to that Rule’s counterpart in the Federal Rules of Civil Procedure. Rule 1(a), Tax Court Rules of Practice and Procedure; see Dusha v. Commissioner, 82 T.C. 592, 598-599 (1984). That counterpart, rule 60 of the Federal Rules of Civil Procedure (rule 60), states:
Rule 60. Relief From Judgment or Order
(a) Clerical Mistakes. Clerical mistakes in judgments, orders or other parts of the record and errors therein arising from oversight or omission may be corrected by the court at any time of its own initiative or on the motion of any party and after such notice, if any, as the court orders. During the pendency of an appeal, such mistakes may be so corrected before the appeal is docketed in the appellate court, and thereafter while the appeal is pending may be so corrected -with leave of the appellate court.
(b) Mistakes; Inadvertence; Excusable Neglect; Newly Discovered Evidence; Fraud, Etc. On motion and upon such terms as are just, the court 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. A motion under this subdivision (b) does not affect the finality of a judgment or suspend its operation. This rule does not limit the power of a court to entertain an independent action to relieve a party from a judgment, order, or proceeding, or to grant relief to a defendant not actually personally notified as provided in Title 28, U.S.C., § 1655, or to set aside a judgment for fraud upon the court. Writs of coram nobis, coram vobis, audita querela, and bills of review and bills in the nature of a bill of review, are abolished, and the procedure for obtaining any relief from a judgment shall be by motion as prescribed in these rules or by an independent action.
Although rule 60 is not technically applicable to this Court, Cinema ’84 v. Commissioner, 122 T.C. 264, 267-268 (2004); see also sec. 7453 (“proceedings of the Tax Court * * * shall be conducted in accordance with such rules of practice and procedure * * * as the Tax Court may prescribe);1 rule 1 of the Federal Rules of Civil Procedure (the Federal Rules of Civil Procedure “govern the procedure in the United States district courts in all suits of a civil nature”), its principles are instructive as to the interpretation and application of our Rule 162, see Evans Publg., Inc. v. Commissioner, 119 T.C. 242, 249 (2002); Estate of Fulmer v. Commissioner, 83 T.C. 302, 309 (1984).
Pursuant to rule 60(b), a District Court may in a civil case relieve a litigant from a “final judgment” for reasons other than clerical mistake.2 Rule 60(b) allows such relief where the desire for justice outweighs the value of finality of a judgment that is unconscionable to execute and that was rendered without fault or neglect on the part of the litigant seeking to reform it. W. Va. Oil & Gas Co. v. George E. Breece Lumber Co., 213 F.2d 702, 704 (5th Cir. 1954); see also Marine Ins. Co. v. Hodgson, 11 U.S. 332, 336 (1813). A litigant may obtain rule 60(b) relief in one of two ways. First, the litigant may move the court in which the judgment was entered for relief under one of the six grounds listed in rule 60(b). Banker’s Mortgage Co. v. United States, 423 F.2d 73, 77-78 (5th Cir. 1970). Second, the litigant may bring an independent action to obtain relief from a judgment, order, or proceeding. Id. In either case, a proceeding as to postjudgment relief under rule 60(b) is simply a continuation of the original proceeding and does not require that the court in which the rule 60(b) proceeding is pending have an independent basis of jurisdiction in order to grant such relief. United States v. Beggerly, 524 U.S. 38, 45-46 (1998); Banker’s Mortgage Co. v. United States, supra at 78. A rule 60(b) proceeding is “ancillary to or a continuation of the original suit”, Banker’s Mortgage Co. v. United States, supra at 78; see also United States v. Beggerly, supra at 45-46, and a court has jurisdiction over that proceeding if it had jurisdiction over the original suit, Smith v. Widman Trucking & Excavating, Inc., 627 F.2d 792, 799 (7th Cir. 1980); see also Charter Township v. City of Muskegon, 303 F.3d 755, 760-763 (6th Cir. 2002).
B. This Court’s Predecessors
The roots of this Court, the U.S. Tax Court, are traced to the Revenue Act of 1924, ch. 234, sec. 900(a), and (k), 43 Stat. 336, 338, wherein Congress established the Board of Tax Appeals (Board) as “an independent agency in the executive branch of the Government.” In the Revenue Act of 1942, ch. 619, sec. 504, 56 Stat. 798, 957, Congress changed the name of the Board to the “Tax Court of the United States” but did not change the latter tribunal’s designation as an independent agency within the Executive Branch. That designation was changed in the Tax Reform Act of 1969 (1969 Act), Pub. L. 91-172, sec. 951, 83 Stat. 487, 730. There, through its enactment of section 7441, Congress “hereby established, under article I of the Constitution of the United States, a court of record to be known as the United States Tax Court.”
The predecessors to this Court were not courts of law, and they did not possess the judicial powers of a District Court. As independent agencies in the Executive Branch, this Court’s predecessors had only those powers which were conferred upon them by the Executive Branch, powers which included no incidental principles of equity. Commissioner v. Gooch Milling & Elevator Co., 320 U.S. 418 (1943); Old Colony Trust Co. v. Commissioner, 279 U.S. 716, 725 (1929). The fact that these predecessors were executive agencies and not courts of law made them fundamentally different from the District Courts. The fact that these predecessors were executive agencies and not courts of law made them fundamentally different from this Court.
C. Relevant Jurisprudence Concerning the Authority of This Court’s Predecessors To Apply Rule 60(b)
Sections 7481 and 7483 generally provide that a decision of this Court becomes “final” 90 days from the date that the decision is entered, absent a timely filed notice of appeal. In the case of an appeal, section 7481 provides similar time periods as to each possibility related to the resolution of that appeal.
The vast preponderance of judicial jurisprudence compels the conclusion that this Court’s predecessors had little, if any, power to vacate a decision that had become “final” under sections 7481 and 7483 (or the predecessors thereof). The gist of this jurisprudence was that these sections provided set rules on the finality of a decision, R. Simpson & Co. v. Commissioner, 321 U.S. 225 (1944); Helvering v. N. Coal Co., 293 U.S. 191 (1934); see also Lasky v. Commissioner, 352 U.S. 1027 (1957) (per curiam opinion relying entirely upon R. Simpson & Co. v. Commissioner, supra, and Helvering v. N. Coal Co., supra),3 and that the predecessors to this Court were mere administrative agencies that lacked equitable powers to alter those rules, Lasky v. Commissioner, 235 F.2d 97 (9th Cir. 1956), affd. per curiam 352 U.S. 1027 (1957). This jurisprudence also reflected the view of some of the Courts of Appeals that this Court’s predecessors could in certain cases relieve a party of a judgment notwithstanding its finality under the statute. E.g., Kenner v. Commissioner, 387 F.2d 689 (7th Cir. 1968) (relief may be allowed in the case of fraud on the court); Reo Motors, Inc. v. Commissioner, 219 F.2d 610 (6th Cir. 1955) (relief may be allowed in the case of a mutual mistake of fact);4 La Floridienne J. Buttgenbach & Co. v. Commissioner, 63 F.2d 630 (5th Cir. 1933) (relief may be allowed in the case of a joint stipulation to vacate). As to the Court of Appeals for the Fifth Circuit, the circuit to which an appeal of this case lies, that court had ruled that a final decision resulting from a “redetermination based on a stipulation may be vacated [by a predecessor to this Court] at the instance of the parties to the stipulation for good cause shown.” La Floridienne J. Buttgenbach & Co. v. Commissioner, supra at 631. The court stated:
Counsel for the Commissioner here stands to the petition [to vacate the decision] if it can be lawfully granted, but as in duty bound contends that the Board after four years cannot vacate its order, especially since Revenue Act of 1926, § 1005 (26 USCA § 1228), expressly declares: “The decision of the board shall become final — (1) Upon the expiration of the time allowed for filing a petition for review, if no such petition has been duly filed within such time. * * *” We appreciate the necessity of prompt decisions touching taxes, and that they shall stand firm. The reviews mentioned in section 1005 no doubt measure the taxpayer’s right to litigate, and the Board’s decision is final on exhaustion or neglect of them as against further appeals. But it does not follow that the decision may not be further dealt with by the Board itself in its discretion or that no extraordinary relief against it can ever be had. Decisions of the Secretary of the Interior in matters affecting the public lands were by statute declared to be final, but that meant only as to further appeals, and did not exclude the courts from inquiring in extraordinary cases whether the law had been violated thereby. Johnson v. Towsley, 13 Wall. 72, 83, 20 L. Ed. 485. The Secretary himself can sometimes revise his own decision, as when obtained by fraud, though the statute declare it final and conclusive. Lane, Secretary v. United States ex rel. Mickadiet, 241 U. S. 201, 36 S. Ct. 599, 60 L. Ed. 956. So the Secretary of Labor’s decisions on deportation proceedings are by statute final, but on extraordinary occasions they are inquired into on habeas corpus. Lindsey, U. S. Immigration Inspector v. Dobra (C. C. A.) 62 F.(2d) 116.
[Id. at 630-631.]
Whereas the Court of Appeals for the Ninth Circuit stated in Small v. Commissioner, 122 F.2d 324, 324-325 (9th Cir. 1941), that La Floridienne J. Buttgenbach & Co. v. Commissioner, supra, was “in effect overruled by Helvering v. Northern Coal Co., supra,” I have not heard the Court of Appeals for the Fifth Circuit, nor any of the other 11 Courts of Appeals, to have stated similarly.
D. 1969 Act
The 1969 Act made this Court the functional equivalent of a District Court. See 1969 Act sec. 951, 83 Stat. 730; see also Freytag v. Commissioner 501 U.S. 868, 890-892 (1991). Through the 1969 Act, Congress changed the status of this Court from an “independent agency in the Executive Branch” to a “court of record” “established * * * under Article I of the Constitution”. See sec. 7441 before and after amendment by the 1969 Act; see also Freytag v. Commissioner, supra at 890-891. This Court currently sits as a District Court-like tribunal that “exercises a portion of the judicial power of the United States * * * to the exclusion of any other function”. Id. at 891. This Court’s District Court-like status means that its decisions are subject to review only by a Federal appellate court. See sec. 7482(a).
E. Freytag v. Commissioner
In Old Colony Trust Co. v. Commissioner, 279 U.S. at 725, the Supreme Court held that the Board was not a court but was merely an executive or administrative board. The Supreme Court also held that proceedings in the Board were administrative inquiries and not judicial proceedings. Id. In Freytag v. Commissioner, supra at 885, respondent argued that the 1969 Act did not change these features as to this Court. The Supreme Court disagreed. In contrast to its earlier decision as to the status of the Board, the Supreme Court held that Congress through the 1969 Act had established this Court as a court of law that functions much like a District Court in this Court’s exclusive exercise of a portion of the judicial power of the United States. Id. at 890-892. The Supreme Court noted that this Court is different from other non-Article III tribunals by virtue of this Court’s “exclusively judicial role”. Id. at 892.
F. This Court Has Equitable Powers That Its Predecessors Did Not
Following Freytag v. Commissioner, supra, many Courts of Appeals now agree that this Court has equitable powers that this Court’s predecessors did not have and that this Court’s powers are harmonious with the powers of a District Court. In Estate of Branson v. Commissioner, 264 F.3d at 908, for example, the Court of Appeals for the Ninth Circuit stated that this Court’s exercise of judicial powers
includes the authority to apply the full range of equitable principles generally granted to courts that possess judicial powers. Even if the Tax Court does not have far-reaching general equitable powers [a statement that presumably was made in reply to the Supreme Court’s dictum in Commissioner v. McCoy, 484 U.S. 3, 7 (1987) that this Court “lacks general equitable powers”5], it can apply equitable principles and exercise equitable powers within its own jurisdictional competence. * * * [Quotation marks omitted.]
The Court of Appeals for the Seventh Circuit stated similarly in Flight Attendants Against UAL Offset v. Commissioner, 165 F.3d 572, 578 (7th Cir. 1999). There, the Court of Appeals for the Seventh Circuit, while suggesting but not deciding that this Court has the power to apply the equitable doctrines of tolling and estoppel, stated that “the predecessor bodies to the Tax Court, such as the Board of Tax Appeals, were administrative agencies having more limited powers than a regular court * * * [b]ut the present Tax Court operates pretty indistinguishably from a federal district court.” Accord Buchine v. Commissioner, 20 F.3d 173, 176 (5th Cir. 1994) (Court of Appeals for the Fifth Circuit concluded that this Court is empowered to apply the equitable principle of reformation to a case over which it already had jurisdiction), affg. T.C. Memo. 1992-36.
G. Ability of This Court To Apply the Principles of Rule 60(b)
Here, no one disputes that we had jurisdiction to redetermine the estate tax deficiency that was at issue. If one of the parties in this case were now to make a motion subject to the principles of rule 60(b), the issue as I see it would be whether we would have authority to give effect to a purported inequitable mistake that was made in the decision underlying that deficiency. To my mind, if a District Court could have decided such a motion, then so can we. This Court’s powers are harmonious with the powers of a District Court. This Court’s powers are different from the powers held by this Court’s predecessors.
Although it is true that this Court is a court of limited jurisdiction, so are all other Federal courts. All Federal courts possess only that power authorized by Constitution and statute and may not expand that power by judicial decree. Kokkonen v. Guardian Life Ins. Co., 511 U.S. 375, 377 (1994); Ins. Corp. of Ir., Ltd. v. Compagnie des Bauxites de Guinee, 456 U.S. 694, 701-702 (1982). The ability of this and every other Federal court to apply rule 60(b) principles to a final decision flows from a finding that we and they had jurisdiction to render and enter that decision in the first place. x4 court need not and does not apply equitable principles to acquire jurisdiction in a rule 60(b) proceeding. The court simply applies the principles of that rule to a case over which it already has jurisdiction. This Court’s well-established position on its equitable powers is consistent with this tenet. In accordance with that position, this Court has held that it may apply equitable principles to dispose of cases over which the Court already has jurisdiction. Woods v. Commissioner, 92 T.C. 776, 784-785 (1989); cf. Buchine v. Commissioner, supra at 178.
This Court’s application of rule 60(b) is not unprecedented. In Brannon’s of Shawnee, Inc. v. Commissioner, 69 T.C. 999, 1000-1002 (1978), for example, this Court applied subpara-graph (4) of rule 60(b) to conclude that this Court was empowered to vacate a final decision that was entered in a case for which this Court lacked jurisdiction to decide. I also note this Court’s authority to apply paragraph (a) of rule 60. In Michaels v. Commissioner, 144 F.3d 495 (7th Cir.1998), affg. T.C. Memo. 1995-294, the Court of Appeals for the Seventh Circuit held that this Court may at any time rely upon paragraph (a) to vacate a final decision to correct a clerical error. The taxpayers in that case had argued that the fact that their decision was “final” meant that this Court was not at liberty to alter it. In rejecting this argument, the Court of Appeals for the Seventh Circuit stated:
The Michaelses cannot credibly argue that the error in the 1995 decision was anything other than a clerical mistake. They are forced, therefore, to argue that the Tax Court in this case simply should not be allowed to exercise a power analogous to that afforded the district courts by Rule 60(a). In attempting to do so, the Michaelses make several points that would be relevant only if Rule 60(b) were at issue, such as that the Commissioner has not shown that the failure to correct the mistake earlier was the result of “excusable neglect” or that his motion to correct it was made “within a reasonable time.” These arguments, of course, are unavailing, since Rule 60(a) requires no such showing.
In addition, the Tax Court’s power to correct clerical errors does not conflict with the statutory framework establishing finality for that court’s decisions. The Michaelses point out that the substance of a decision becomes final and unappealable once the statutory period for filing an appeal has expired. But the same is largely true of district court decisions, subject to such extraordinary remedies as those contained in Rule 60(b), and yet the expiration of the time for filing a notice of appeal does not prevent a district court from acting under Rule 60(a) to correct a clerical error in its judgment. See, e.g., American Fed’n of Grain Millers Local 24 v. Cargill, Inc., 15 F.3d 726 (7th Cir. 1994). The Michaelses’ arguments that the Tax Court should be prevented from taking the same action because it is a creation of Article I rather than Article III of the Constitution, or because it is a court of limited jurisdiction, are not persuasive.
[Id. at 497; fh. ref. omitted.]
I am not unmindful of this Court’s Opinions in Taub v. Commissioner, 64 T.C. 741 (1975), affd. without published opinion 538 F.2d 314 (2d Cir. 1976), and Hazim v. Commissioner, 82 T.C. 471 (1984). In Taub v. Commissioner, supra at 751, the Court stated that “We find nothing in our new status * * * [under Article I] which expands the narrow exception to the general rule of finality of decisions carved out” in the case of fraud on the Court that would give us jurisdiction to vacate a final decision. In Hazim v. Commissioner, supra at 475, the Court repeated this statement in concluding that this Court’s jurisdiction to set aside a final decision is limited. The referenced statement in these cases conflicts directly with the Supreme Court’s later finding in Freytag v. Commissioner, 501 U.S. 865 (1991), that this Court’s status in Article I means that this Court is no longer an executive or administrative board, as were this Court’s predecessors, but is a court of law that exercises a portion of the judicial power of the United States to the exclusion of any other function. This Court’s holdings in Taub and Hazim also fail to take into account the fact that a proceeding under rule 60(b) is a continuation of the original proceeding and does not require that the court overseeing the proceeding have an independent basis of jurisdiction upon which to act.
Nor does my opinion change on account of any other case that was decided before Freytag v. Commissioner, supra. As I see it, the relevant cases as to the current powers of this Court are those cases that pertain to this Court’s status as an Article I court, with the most relevant of those cases being those which were decided after Freytag. Freytag establishes that this Court is a court of law with all of the incidental powers which pertain thereto, rather than an administrative or executive board that simply decides administrative inquiries using limited powers inclusive of no incidental principles of equity. Accord Flight Attendants Against UAL Offset v. Commissioner, 165 F.3d 572, 578 (7th Cir. 1999). The cases decided before Freytag do not address this now well-settled status of this Court as a court of law that performs exclusively judicial functions in a manner that is harmonious with that of a District Court. None of these pre-Freytag cases, therefore, has any bearing on the types of powers that this Court is authorized to exercise in performing this Court’s judicial functions. Congress’s elevation of this Court to an “exclusively judicial” court means that this Court’s legal and equitable powers are diametrically different from this Court’s executive agency predecessors, which wielded executive powers only. Congress’s elevation of this Court to an “exclusively judicial” court means that this Court possesses all of the inherent powers of a District Court.6
The Court’s opinion, supra p. 28 quotes Wapnick v. Commissioner, 365 F.3d 131 (2d Cir. 2004), as to the need for a tax decision to be final. The Supreme Court opinion discussed in the quotation, namely R. Simpson & Co. v. Commissioner, 321 U.S. 225 (1944), dealt with a predecessor to this Court and, more importantly, did not involve a motion under rule 60(b). (Nor did Helvering v. Northern Coal Co., 293 U.S. 191 (1934), or Lasky v. Commissioner, 325 U.S. 1027 (1957), deal with such a motion.7) I see no reason why a need for finality is any greater for a decision entered in a tax case heard by this Court as opposed to a judgment entered in a tax case heard by a District Court. (I have found nothing that prohibits a District Court from applying rule 60(b) to relieve a party of a final judgment in a Federal tax case.) As the Court of Appeals for the Seventh Circuit stated in Flight Attendants Against UAL Offset v. Commissioner, 165 F.3d at 578, with regard to the ability of this Court to apply the equitable doctrines of tolling and estoppel which are applied by District Courts: “The overlap between the district courts’ jurisdiction over refund suits and the Tax Court’s jurisdiction over deficiency suits — both jurisdictions exclusive, but the taxpayer allowed to choose between them— makes it anomalous and confusing to multiply distinctions between the doctrines applied by the two types of court”. As stated by the Court of Appeals for the Eleventh Circuit in the setting of equitable estoppel:
If the Tax Court lacked authority to entertain a claim of equitable estop-pel, taxpayers with such a claim would no longer have a choice of fora for their tax issues. They would effectively be forced to pay their taxes and sue for a refund, submitting all of their claims to the district courts. Taxpayers would then be barred by res judicata from relitigating a claim in the Tax Court. Thus, taxpayers would essentially be denied the right to challenge deficiencies in the Tax Court if they wanted to assert an equitable estoppel claim. This would be an unfair choice to pose to taxpayers, and would undermine the purpose of the Tax Court. We therefore conclude that the Tax Court did have jurisdiction over the Bokums’ equitable estop-pel claim. [Bokum v. Commissioner, 992 F.2d 1136, 1140-1141 (11th Cir. 1993), affg. T.C. Memo. 1990-21.]
Accord Estate of Branson v. Commissioner, 264 F.3d at 911-912. Both of these statements apply equally to an application of rule 60(b).
Vasquez and Gale, JJ., agree with this concurring opinion.Unless otherwise indicated, section references are to the applicable versions of the Internal Revenue Code.
Relief from a judgment because of clerical mistake is governed by paragraph (a) of rule 60. W. Va. Oil & Gas Co. v. George E. Breece Lumber Co., 213 F.2d 702, 705 (5th Cir. 1954); see also Michaels v. Commissioner, 144 F.3d 495 (7th Cir. 1998), affg. T.C. Memo. 1995-294.
Helvering v. N. Coal Co., 293 U.S. 191 (1934), concerned four cases which had arisen in the Board. On Oct. 23, 1933, the Supreme Court had affirmed judgments entered as to those cases and, on Nov. 20, 1933, had denied petitions for rehearing as to three of those judgments. Following the Court’s issuance on Nov. 29, 1933, of the mandates as to the four cases, additional petitions for rehearing were filed on May 21, 1934. In denying these additional petitions, the Court noted that the applicable predecessor to sec. 7481(a)(3) provided that “The decision of the board shall become final * * * Upon the expiration of thirty days from the date of issuance of the mandate of the Supreme Court, if such court directs that the decision of the board be affirmed or the petition for review dismissed.” Id. at 192. The Court held that the “authoritative and explicit requirement of the statute” precluded it from rehearing its decision; i.e., the additional petitions for rehearing were filed after the time limits set forth in the statute. Id.
R. Simpson & Co. v. Commissioner, 321 U.S. 225 (1944), also arose in the Board. After the Supreme Court on Nov. 9, 1942, had denied the taxpayer’s petition for certiorari as to a decision that had affirmed the Board, and after the 25-day period in the Court’s rules for the filing of a petition for rehearing of that denial had expired, the taxpayer petitioned the Court for a rehearing. The Court dismissed that petition for want of jurisdiction. The Court noted that the applicable predecessor of sec. 7481(a)(2)(B) provided that “The decision of the Tax Court [the predecessor to this Court] shall become final * * * Upon the denial of a petition for certiorari, if the decision of the Tax Court has been affirmed”. Id. at 227. The Court held that this statute deprived it of jurisdiction upon its denial of the petition for certiorari and that “denial” under the statute occurred when the Court’s denial of certiorari was final under its rules; i.e., upon the expiration of the 25-day period allowed for requesting reconsideration.
In Harbold v. Commissioner, 51 F.3d 618, 622 (6th Cir. 1995), the Court of Appeals for the Sixth Circuit stated that it would no longer follow Reo Motors, Inc. v. Commissioner, 219 F.2d 610 (6th Cir. 1955), in that, it concluded, that case had been overruled by Lasky v. Commissioner, 352 U.S. 1027 (1957).
That dictum, when taken in context, is not remarkable. Nor is it inconsistent with my view that this Court has District Court-like equitable powers. The context of this dictum indicates that the Supreme Court was merely noting the well-settled rule that no court of law may ignore the express intent of Congress as to the imposition of interest and penalties. See Commissioner v. McCoy, 484 U.S. 3, 7 (1987); see also Flight Attendants Against UAL Offset v. Commissioner, 165 F.3d 572, 578 (7th Cir. 1999) (“In context, the Supreme Court’s dictum in Commissioner v. McCoy, 484 U.S. 3, 7, 98 L. Ed. 2d 2, 108 S. Ct. 217 (1987) (per curiam), that the Tax Court lacks “general equitable powers” means only that the Tax Court is not empowered to override statutory limits on its power by forgiving interest and penalties that Congress has imposed for nonpayment of taxes — but then no court is, unless the imposition would be unconstitutional.”). In fact, the Court made no mention of McCoy when it decided Freytag v. Commissioner, 501 U.S. 868 (1991), 4 years later.
I note in particular Contl. Equities, Inc. v. Commissioner, 551 F.2d 74 (5th Cir. 1977), revg. on grounds not relevant herein T.C. Memo. 1974^-189. There, the Court of Appeals for the Fifth Circuit held that this Court had no authority to apply the doctrine of equitable recoupment. We recently stated as to that decision:
more than 2 decades have passed since the 1977 decision in Continental Equities, Inc. v. Commissioner, 551 F.2d 74 (5th Cir. 1977). In that interval, the concept of Tax Court jurisdiction has been substantially refined. Concerning equitable recoupment in particular, the opinion by the Supreme Court in United States v. Dalm, 494 U.S. 596 (1990), which served as a catalyst for our own reevaluation of our position, was issued only in 1990. Furthermore, since 1977 the Courts of Appeals have begun increasingly to acknowledge the difference between exercising equitable powers to take jurisdiction and applying equitable principles to decide matters within the Court’s jurisdiction. For instance, a series of recent decisions has consistently affirmed on such basis Tax Court authority to reform written agreements and to apply equitable estoppel. * * * [Estate of Orenstein v. Commissioner, T.C. Memo. 2000-150.]
The rule drawn from this trilogy of Supreme Court cases is that a request for review by that Court in a civil case must be timely filed within a period prescribed by Congress and that the untimely filing of such a request deprives the Court of jurisdiction. See FEC v. NRA Political Victory Fund, 513 U.S. 88, 90 (1994); Missouri v. Jenkins, 495 U.S. 33, 45 (1990). The rule, of course, is different when a Federal trial court applies the principles of rule 60(b) within the time limits set forth therein.