Benness M. Richards and Jane Richards - Page 14

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          the taxpayer files a timely motion to vacate or revise the                  
          decision.  Fed. R. App. P. 13(a).  Pursuant to Rule 162, a motion           
          to vacate or revise a decision must be filed within 30 days after           
          the decision is entered, unless the Court allows otherwise.                 
               Petitioners did not file a notice of appeal or a timely                
          motion to vacate or revise the stipulated decision that was                 
          entered in this case on May 8, 1987, and the decision became                
          final on August 6, 1987.  See secs. 7459(c), 7481(a)(1).  As a              
          consequence, petitioners were required to file a motion for leave           
          to file their motion to vacate the stipulated decision entered in           
          their case.                                                                 
               Petitioners' assertion that the Court incorrectly denied               
          their motion for leave without first permitting petitioners to              
          file their Motion To Vacate Decision, conduct necessary                     
          discovery, and have a hearing, is misconceived.  In deciding                
          whether to grant or deny a motion for leave to file a motion to             
          vacate a final decision, it is ordinarily the Court’s practice to           
          consider the merits of the underlying (lodged) Motion To Vacate             
          Decision to determine whether the moving party has alleged                  
          sufficient facts to properly question the validity of the                   
          decision.  See Brannon's of Shawnee, Inc. v. Commissioner, 69               
          T.C. 999, 1002 (1978); see also Toscano v. Commissioner, 52 T.C.            
          295, 296 (1969), vacated on another issue 441 F.2d 930 (9th Cir.            
          1971); Kenner v. Commissioner, 387 F.2d 689, 690-691 (7th Cir.              





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