Jason Golditch - Page 8

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          dismissal for lack of jurisdiction becomes final.  Stewart v.               
          Commissioner, supra at ___ (slip op. at 6-8); see Haley v.                  
          Commissioner, 805 F. Supp. 834, 836 (E.D. Cal. 1992), affd.                 
          without published opinion 5 F.3d 536 (9th Cir. 1993).5  If the              
          Court does not have jurisdiction to grant the motion for leave,             
          then the motion to vacate could not be filed.  Nordvik v.                   
          Commissioner, supra at 1492; Stewart v. Commissioner, supra at              
          ___ (slip op. at 15).                                                       
               The Court entered the order of dismissal on December 21,               
          2005, and petitioner did not file a notice of appeal within the             
          time prescribed by section 7483.  Had petitioner mailed his                 
          motion for leave in an envelope postmarked on or before March 21,           
          2006, we would have had jurisdiction to consider whether to grant           
          his motion for leave and allow petitioner to file his motion to             
          vacate.  See Stewart v. Commissioner, supra.  However, petitioner           
          did not mail the motion for leave until April 26, 2006, 126 days            
          after the Court entered the order of dismissal.  The motion for             
          leave was mailed and filed well after the period for appeal                 
          expired and the order of dismissal for lack of jurisdiction had             
          become final.  Therefore, we lack jurisdiction to consider                  


               5 In Nordvik v. Commissioner, 67 F.3d 1489, 1492 n.2 (9th              
          Cir. 1995), affg. T.C. Memo. 1992-731, the Court of Appeals for             
          the Ninth Circuit expressly adopted the reasoning of the District           
          Court in Haley v. Commissioner, 805 F. Supp. 834 (E.D. Cal.                 
          1992), affd. without published opinion 5 F.3d 536 (9th Cir.                 
          1993).                                                                      




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