- 16 -
Cal. 1992), affd. without published opinion 5 F.3d 536 (9th Cir.
1993).9
We hold that when a motion for leave to file a motion to
vacate is filed before the Court’s decision becomes final, and
the motion for leave is granted, the motion to vacate will be
deemed to have been timely filed at the same time as the motion
for leave. This will terminate the running of the 90-day appeal
period and postpone the finality of any decision.
VII. Action on Petitioner’s Motion
In the exercise of our discretion, we will grant
petitioner’s motion for leave to file his motion to vacate. The
granting of petitioner’s motion for leave and the filing of his
motion to vacate terminate the running of time to file a notice
of appeal. This, in turn, will prevent the Court’s order of
dismissal from becoming final and will allow the Court to retain
jurisdiction to determine whether to grant petitioner’s motion to
vacate.
Petitioner’s proper amended petition and filing fee were
received on June 13, 2006. Considering the particular facts in
this case, we believe that there is a reasonable basis to grant
9 In Nordvik v. Commissioner, supra at 1492 n.2, 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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