Betty Sprenger - Page 8

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          Commissioner, 67 F.3d 1489, 1492 (9th Cir. 1995), affg. T.C.                
          Memo. 1992-731; Stewart v. Commissioner, supra at ___ (slip op.             
          at 14).  However, if the motion for leave is not granted, the               
          motion to vacate cannot be filed.  If the motion to vacate is not           
          filed, the appeal period is not extended, and the order of                  
          dismissal for lack of jurisdiction is final.  The filing of a               
          taxpayer’s motion for leave to file a motion to vacate does not             
          extend the time for appeal unless the Court grants the motion for           
          leave and permits the filing of the motion to vacate.  Nordvik v.           
          Commissioner, supra at 1492; Stewart v. Commissioner, supra at              
          ___ (slip op. at 15-16); Haley v. Commissioner, 805 F. Supp. 834,           
          836 (E.D. Cal. 1992), affd. without published opinion 5 F.3d 536            
          (9th Cir. 1993).4                                                           
               Whether to grant petitioner’s motion for leave is                      
          discretionary.  Stewart v. Commissioner, supra at ___ (slip op.             
          at 5-6).  However, a timely motion for leave, without more, is              
          not necessarily sufficient to persuade the Court to grant such              
          motion.  In deciding what action to take, “We are guided                    
          primarily by whether it would be in the interest of justice to              
          vacate the prior decision.  But, we also recognize that                     


               4 In Nordvik v. Commissioner, 67 F.3d 1489, 1492 n.2 (9th              
          Cir. 1995), affg. T.C. Memo. 1992-731, the Court of Appeals for             
          the Ninth Circuit expressly adopted the reasoning of the District           
          Court in Haley v. Commissioner, 805 F. Supp. 834 (E.D. Cal.                 
          1992), affd. without published opinion 5 F.3d 536 (9th Cir.                 
          1993).                                                                      




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