William A. Stewart - Page 15

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          supra at 1492, the Court of Appeals for the Ninth Circuit stated            
          it was irrelevant that the taxpayers filed the motion for leave             
          to file a motion to vacate without the substantive motion to                
          vacate.  The Court of Appeals held that so long as the motion for           
          leave is filed within the 90-day period and the Tax Court grants            
          the motion for leave and thereafter makes a decision on the                 
          merits of the motion to vacate, then the time for appeal is                 
          extended.                                                                   
               If the Court does not grant the motion for leave, then the             
          motion to vacate could not be filed and the decision would become           
          final.  Id.  Unlike the filing of a motion to vacate, the filing            
          of a taxpayer’s motion for leave to file a motion to vacate would           
          not affect the time for appeal unless the Court granted the                 
          motion for leave and considered the merits of the motion to                 
          vacate.  Id.; Haley v. Commissioner, 805 F. Supp. 834, 836 (E.D.            




               8(...continued)                                                        
          a Memorandum Opinion of this Court, rejects the Court of Appeals            
          for the First Circuit’s opinion in Denholm & McKay Co. v.                   
          Commissioner, 132 F.2d 243, 248 (1st Cir. 1942), affg. 39 B.T.A.            
          767 (1939), holding that the Tax Court retains jurisdiction to              
          consider a motion for reconsideration only if the Court acts on             
          the motion before the end of the 90-day period at which the                 
          original decision becomes final.  The Court of Appeals for the              
          Second Circuit reasoned that the ability to seek review should              
          not depend on the Tax Court’s docket.  Simon v. Commissioner,               
          supra at 232; Nordvik v. Commissioner, 67 F.3d 1489, 1492 (9th              
          Cir. 1995), affg. T.C. Memo. 1992-731.                                      





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