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unless and until we first grant petitioners' Motion for Leave and
then grant petitioners' Motion to Vacate.6
The reasoning that supports our holding is set forth in our
prior opinion and will not be repeated herein. See Manchester
Group v. Commissioner, T.C. Memo. 1994-604. However, we make
mention of several cases that petitioners cite in support of
their argument that a motion for litigation costs may be filed at
any time before a decision becomes final. We do not think that
these cases support such proposition. In each case, it appears
that a motion to vacate the decision, or for litigation costs,
was mailed or delivered to the Court within 30 days after the
entry of the decision, and in no case was there anything to
suggest that the taxpayer intentionally delayed submitting an
appropriate motion. See Comer v. Commissioner, 958 F.2d 136 (6th
Cir. 1992); Cassuto v. Commissioner, 93 T.C. 256 (1989), affd. in
part, revd. in part and remanded 936 F.2d 736 (2d Cir. 1991);
6 In Manchester Group v. Commissioner, 113 F.3d 1087, 1089
(9th Cir. 1997), the Court of Appeals did not take issue with our
holding that petitioners' Motion for Litigation Costs was not
separately reviewable; rather, the Court of Appeals reversed our
dismissal for lack of jurisdiction and remanded this case "to
decide the motion for leave on the merits." In reaching its
conclusion, the Court of Appeals appeared to agree that
petitioners' Motion to Vacate cannot be considered without first
granting petitioners' Motion for Leave. Thus:
"As the Tax Court held, the motion to vacate could not
be considered without first granting the motion for
leave because more than thirty days had passed." [Id.
at 1088.]
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