Schnackenberg, Kiley and Cummings, Circuit Judges. Kiley, Circuit Judge (dissenting).
SCHNACKENBERG, Circuit Judge.
John M. Minneci (taxpayer) has filed a petition in this court seeking our review of a decision of the Tax Court of the United States entered December 10, 1965 which denied a motion theretofore filed to vacate an order entered July 29, 1965, which determined that taxpayer was not entitled to have the Tax Court's decisions*fn1 of June 21, 1965*fn2 vacated or modified on his motions of June 24 and July 2, 1965.*fn3
On September 22, 1965, attorney Arthur H. Grant filed his appearance for taxpayer and on October 7, 1965, the Tax Court entered another order giving taxpayer leave to file, by counsel, another motion (which had been presented September 28, 1965) to reconsider the rulings on the earlier motions. On the latter motion, a hearing was held before Judge Mulroney on December 6, 1965, when taxpayer continued to be represented by his present attorney, Grant. On December 10, 1965 the motion to reconsider the above matters was again denied, resulting in the present petition for review.
Taxpayer's counsel contends in this court that the decision of the Tax Court was entered under a misapprehension, that no evidence was introduced in support thereof and that he should have been allowed either to modify the "stipulated decision" or a trial on the merits. We reject these contentions.
Taxpayer's motions to reopen the proceedings were addressed to the sound discretion of the court and we would not be justified in overturning them in the absence of a showing that that court abused its discretion. The record reveals that taxpayer was informed of the amount and significance of the decisions to be entered against him. Not only did he learn this from the trial attorney for the Commission before the stipulations were signed, but Judge Drennen of that court carefully ascertained that taxpayer understood the stipulations before the decisions in question were entered.
We are convinced that the overwhelming evidence indicates that taxpayer signed the stipulations with an awareness of their significance and that therefore the Commissioner has met his burden in sustaining the action of the Tax Court.
Accordingly we hold that the Tax Court did not abuse its discretion in denying taxpayer's motions to reopen. Therefore, its order should be and is hereby affirmed.
KILEY, Circuit Judge (dissenting).
The Commissioner determined deficiencies against petitioner of nearly $6,000 for the years 1954, 1957 and 1958. His attorney filed the petitions for redeterminations in the Tax Court, but thereafter withdrew. Petitioner, appearing pro se, and government counsel negotiated a "stipulated decision" on June 14, 1965, the day set for trial. The stipulation was made upon computations, a copy of which ...