I respectfully dissent.
This case presents a graphic illustration of how litigants in their efforts to avoid the finality of judgments, contribute to the log jam in our courts resulting from repetitious hearings.
On July 15, 1953, the Commissioner of Internal Revenue determined deficiencies in the income taxes of John J. Toscano and Josephine Toscano as husband and wife. This determination was reached after reviewing the Toscanos’ joint returns for the years 1946 through 1950. John and Josephine Toscano jointly petitioned the Tax Court for a redetermination of the said deficiencies.
On March 21, 1955, John and Josephine, through their attorney, Franklin C. Laven, filed a settlement stipulation with the Tax Court. The petitioners stipulated to deficiencies and additions for the years 1947, 1949 and 1950; the years 1946 and 1948 were deemed to be free of such deficiencies. The Tax Court entered a decision pursuant to the stipulation.
After John Toscano’s death in July, 1962, the Commissioner sought to collect from Josephine. This Court, in 1965, rejected the contention of Josephine and her wholly owned corporation, that the Commissioner should be enjoined from making such collection. Enterprises Unlimited, Inc., v. Davis, 340 F.2d 472 (CA9, 1965).
Josephine paid the taxes owed for the taxable year 1949 and then filed a refund action in Nevada. This suit was dismissed without prejudice and a second suit filed. As of April, 1970, it is still pending in the Nevada District Court.
On July 1, 1968, Josephine moved for special leave, pursuant to Rule 19(f) of the Tax Court Rules of Practice, to file, out of time, a motion to vacate the Tax Court’s 1955 decision. The thrust of this motion is that the decision rendered fifteen years earlier pursuant to a stipulation of the parties, was procured by fraud on the Court. In support of her claim appellant alleges she was never married to Toscano, and despite the fact that they represented they were man and wife, and that during most of the many years they lived together, they occupied a single bedroom, she slept alone on a sofa.
The record discloses that appellant signed the petition which was filed with the Tax Court. Indeed, Franklin C. Laven, the attorney who represented the petitioners before the Tax Court, testified at a deposition taken February 13, 1967, that John and Josephine both participated in discussions with him relative to the Tax Court petition. Given this kind of evidence, it seems anomalous to ask any court to rule some fifteen years after the event, that the appellant did not understand the nature of her acquiescence to the Tax Court’s action.
A hearing on the appellant’s motion for special leave to file a motion to vacate the Tax Court decision of 1955 was held on August 21, 1968. Affidavits and 25 exhibits were presented in evidence by the appellant in support of her motion to vacate. On May 19, 1969, the Tax Court filed its opinion and findings including the following:
“Even if true, we do not believe that the allegations stated in the motion add up to fraud on the Court so that we would be justified in vacating the 1955 decision. At the very least it must be established clearly and convincingly that the former decision was obtained as a direct result of fraud *938and it should also be shown that the fraudulent conduct was deliberately undertaken to influence the Court in its decision. But the issue before the Court in 1955 was simply the correctness of petitioners taxable income over a period of 5 years determined by respondent under the net worth method. The decision was entered under a written stipulation of the parties with deficiencies and additions to tax for only 3 of the 5 years involved. It is not shown that the decision was in any way obtained by deliberately perpetrated fraud on anyones part.
“The marital status of the petitioners was never in issue and hence never before the Court. It is difficult to see how there could be fraud on the Court under these circumstances.”
The Tax Court noted the passage from Hazel-Atlas in which the Supreme Court described the nature of the fraud perpetrated upon the Third Circuit: “This is not simply a case of a judgment obtained with the aid of witnesses who on the basis of after-discovered evidence, is believed possibly to have been guilty of perjury. Here * * * we find a deliberately planned and carefully executed scheme to defraud not only the Patent Office but the Circuit Court of Appeals.”
Here the evidence presented at the hearing showed no “deliberately planned and carefully executed scheme to defraud * * * the * * *, Court.” As the Tax Court stated, “The marital status of the petitioners was never in issue and hence never before the Court.”
This Court’s review is limited to the narrow issue of determining whether the Tax Court’s denial of special leave was an abuse of the discretion vested in the Tax Court. Lentin v. Commissioner of Internal Revenue, 243 F.2d 907 (CA 7, 1957), Skenandoa Rayon Corp. v. Commissioner of Internal Revenue, 122 F.2d 268 (CA 2, 1941) cert. den. 314 U. S. 696, 62 S.Ct. 413, 86 L.Ed. 556 (1941); McCarthy v. Commissioner of Internal Revenue, 139 F.2d 20 (CA 7, 1943). But the majority spurn this issue with a single sentence. “As to the first argument, what the Supreme Court said in Hazel-Atlas, supra, is pertinent.”
This issue was not in Hazel-Atlas. In this motion for special leave pursuant to Rule 19(f), the denial of the motion was within the sound discretion of the Tax Court and the only grounds for review by this Court is abuse of discretion by the Tax Court (See authorities cited above).
Though the Tax Court held a hearing, received evidence and found that there was no fraud on the Court in 1955, this Court now directs it to hold another evidentiary hearing.
Though I believe the Tax Court properly decided the issue before it, what really bothers me is that this Court, without any substantial basis to hold that the trial court abused its discretion, remands the case to the lower court to repeat its former hearing.
The only distinction between the evidentiary hearing held by the Tax Court and the one ordered by this Court is the first was a hearing on a motion “for special leave”1 to file a motion to vacate and revise the 1955 decision of the Tax Court, and the hearing ordered by this Court is on a motion to vacate or revise the 1955 decision. The evidence presented on the motion ordered by this Court will unquestionably be substantially the same as the affidavits and 25 exhibits offered by the taxpayers and received by the Court at the prior hearing.
Is the Tax Court to retain its function as the trier of facts? If so, its decision will undoubtedly be the same. Or is this Court substituting its judgment for that of the trial court? If so, why go through the motions of repeating the hearing ?
As I view it, there has been no showing of abuse of discretion by the Tax Court and I would affirm.
. Rule 19(f) reads: “No motion to vacate or revise a decision may be filed 30 days after the decision has been entered, except by special leave.”