- 8 -
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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