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7483. However, the running of the period to file a notice of
appeal is tolled if a party files a timely motion to vacate or
revise (motion to vacate) the decision. F.R. App. P. 13(a).
Rule 162 provides that a motion to vacate a decision must be
filed within 30 days after the date on which the decision is
entered, unless the Court allows otherwise. An untimely motion
to vacate a decision may nevertheless be considered if the moving
party files a motion for leave to file a motion to vacate the
decision, but the motion for leave must be filed within the 90-
day review period set forth in section 7483. Nordvik v.
Commissioner, 67 F.3d 1489, 1492 (9th Cir. 1995), affg. T.C.
Memo. 1992-731. If the Court grants the motion for leave, the
date of finality is extended, and the Court retains jurisdiction
to consider the motion to vacate. Id. Otherwise, jurisdiction
is lacking. Id. Whether to grant a taxpayer's motion for leave
is within the sound discretion of the Court. Heim v.
Commissioner, 872 F.2d 245, 246 (8th Cir. 1989), affg. T.C. Memo.
1987-1.
Petitioners did not file a timely notice of appeal for
either decision in these cases. Similarly, they did not file a
timely motion to vacate either decision, nor did they file a
timely motion for leave to file a motion to vacate either
decision. Consequently, pursuant to sections 7481(a) and 7483,
both decisions became final on December 23, 1996.
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