Brannon's of Shawnee, Inc. v. Comm'r of Internal Revenue, Docket No. 10546-75.

• Court: United States Tax Court
• Writing for the Court: WILES
• Citation: 69 T.C. 999
• Parties: BRANNON'S of SHAWNEE, INC., PETITIONER v. COMMISSIONER of INTERNAL REVENUE, RESPONDENT
• Docket Number: Docket No. 10546-75.
• Decision Date: 28 March 1978

69 T.C. 999

BRANNON'S of SHAWNEE, INC., PETITIONER
v.
COMMISSIONER of INTERNAL REVENUE, RESPONDENT

Docket No. 10546-75.

United States Tax Court

Filed March 28, 1978.

Petitioner, an Oklahoma corporation, merged into another Oklahoma corporation on Sept. 25, 1972. Respondent issued a notice of deficiency to petitioner on Sept. 10, 1975. On Dec. 10, 1975, petitioner filed a petition with this Court. On Dec. 22, 1976, the parties agreed to a stipulated decision which was entered on that day. On Nov. 28, 1977, petitioner filed a motion to vacate the decision on the ground that we lacked jurisdiction over the original proceeding. Held, petitioner's motion for special leave to file a motion to vacate our decision entered on Dec. 22, 1976, granted.

[69 T.C. 999]

Tom G. Parrott, T. Ray Phillips III, and Donald C. Gaston, for the petitioner.

James D. Thomas and Leroy Boyer, for the respondent.

[69 T.C. 1000]

OPINION WILES, Judge:

On November 28, 1977, petitioner filed, pursuant to Rule 162, Tax Court Rules of Practice and Procedure, a motion for special leave to file a motion to vacate a decision entered on December 22, 1976. Arguments on petitioner's motion were heard in Oklahoma City, Okla., on January 30, 1978, and the motion was taken under advisement.

We must decide whether we have jurisdiction, after a decision has become final under section 7481,¹ to vacate the decision on the ground that we lacked jurisdiction in the original proceeding.

Petitioner alleges in its motion that on September 25, 1972, it was merged, under the laws of Oklahoma, into Brannon's No. 7, Inc., and that both corporations were organized under the laws of Oklahoma.

On September 10, 1975, a statutory notice of deficiency was mailed to petitioner which determined the following deficiencies:

+-------------------------+
                ¦Aug. 31— ¦Deficiency ¦
                +------------+------------¦
                ¦1967 ¦$12,327.18 ¦
                +------------+------------¦
                ¦1968 ¦8,298.39 ¦
                +------------+------------¦
                ¦1970 ¦2,510.51 ¦
                +------------+------------¦
                ¦1971 ¦19,870.41 ¦
                +-------------------------+
                

On December 10, 1975, petitioner, through its counsel, filed its petition requesting a redetermination of the proposed deficiencies.

On December 22, 1976, petitioner, through its counsel, agreed to the deficiencies as set forth in the September 10, 1975, notice of deficiency and this Court entered a decision, on the same date, reflecting the agreements of the parties.

Respondent argues that this is a court of limited statutory jurisdiction and that once our decision becomes final under section 7481 we lack jurisdiction to entertain a motion to vacate. Petitioner asserts that an exception must be made to the finality of our decisions where we did not originally have jurisdiction of the case. We agree with petitioner.

Although we find no specific rule of procedure in our Tax Court Rules of Practice and Procedure governing the disposition of final decisions, rule 60(b) (4) of Federal Rules of Civil

[69 T.C. 1001]

Procedure provides in pertinent part: “On motion and upon such terms as are just, the court may relieve a party or his legal representative from a final judgment, order, or proceeding for the following reasons: * * * (4) the judgment is void.” In applying that rule, the Federal courts have determined that when a court lacks jurisdiction over the subject matter or the defendant, any judgment rendered is void; a legal nullity. Jordon v. Gilligan, 500 F.2d 701, 704 (6th Cir. 1974), cert. denied 421 U.S. 991 (1975); Hicklin v. Edwards, 226 F.2d 410, 413 (8th Cir. 1955). Jordon v. Gilligan, supra at 704, noted that a judgment entered without jurisdiction is void and “is a legal nullity and a court considering a motion to vacate has no discretion in determining whether it should be set aside.” Moreover, as noted in Misco Leasing, Inc. v. Vaughn, 450 F.2d 257, 260 (10th Cir. 1971), there is no time limit on the attack on a judgment as void under rule 60(b)(4) of Federal Rules of Civil Procedure. United States v. Sotis, 131 F.2d 783, 787 (7th Cir. 1942), related:

where a decree or judgment is void for want of jurisdiction of the person of the defendant, it is a nullity and may be expunged from the records of the court at any time. It is universally conceded that a judgment void for want of jurisdiction over the person of a defendant may be vacated on motion, irrespective of lapse of time.

Rule 1(a), Tax Court Rules of Practice and Procedure, provides in pertinent part: “Where in any instance there is no applicable rule of procedure, the Court or the Judge before whom the matter is pending may prescribe the procedure, giving particular weight to the Federal Rules of Civil Procedure to the extent that they are suitably adaptable to govern the matter at hand.” Since we find no applicable rule of procedure specifically...