The Manchester Group and Subsidiaries, Formerly Torrey Enterprises, Inc., and Subsidiaries, Formerly Torrey Development Corporation and Subsidiaries - Page 9

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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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