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decision, with or without a new or further trial, shall be filed
within 30 days after the decision has been entered, unless the
Court shall otherwise permit.” (Emphasis added.) Petitioner did
not file a motion to vacate or revise within 30 days after the
Court’s order of dismissal was entered. Therefore, in order for
her motion to vacate to be considered timely filed, Rule 162
required petitioner to file a motion for leave to file a motion
to vacate or revise, the granting of which lies within the sound
discretion of the Court. See Rule 162; Heim v. Commissioner, 872
F.2d 245, 246 (8th Cir. 1989), affg. T.C. Memo. 1987-1; Stewart
v. Commissioner, supra at ___ (slip op. at 5-6); Brookes v.
Commissioner, 108 T.C. 1, 7 (1997).
The envelope containing petitioner’s motion for leave was
postmarked and mailed prior to the expiration of the 90-day
appeal period. The timely-mailing/timely-filing provisions of
section 7502 apply to a motion for leave to file a motion to
vacate a decision that is mailed and postmarked prior to, but
received by the Court after, the expiration of the 90-day appeal
period. Stewart v. Commissioner, supra at ___ (slip op. at 13).
Therefore, we have jurisdiction to consider petitioner’s motion
for leave. However, whether the Court retains jurisdiction over
petitioner’s case depends on whether the Court grants leave to
file petitioner’s motion to vacate. Id. at ___ (slip op. at 14).
If the Court grants the motion for leave, then the time for
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Last modified: May 25, 2011