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Court’s order of dismissal was entered. Therefore, in order for
his 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).
If a motion for leave to file a motion to vacate is filed
before the order of dismissal for lack of jurisdiction becomes
final and the Court grants the motion for leave, then the time
for appeal is extended. Manchester Group v. Commissioner, 113
F.3d 1087, 1088 (9th Cir. 1997), revg. T.C. Memo. 1994-604;
Nordvik v. Commissioner, 67 F.3d 1489, 1492 (9th Cir. 1995),
affg. T.C. Memo. 1992-731; Stewart v. Commissioner, supra at ___
(slip op. at 14). Petitioner’s motion for leave to file a motion
to vacate would not extend the time for appeal unless the Court
granted the motion for leave and considered the merits of the
motion to vacate. Nordvik v. Commissioner, supra at 1492;
Stewart v. Commissioner, supra at ___ (slip op. at 15-16). But
in order to grant the motion for leave, the motion for leave must
be filed before the order of dismissal for lack of jurisdiction
has become final. This is because the Court is without
jurisdiction to act on the motion for leave once the order of
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