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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).
Petitioner’s original motion to vacate, which we will treat
as a motion for leave to file a motion to vacate, was postmarked
and mailed on March 6, 2006, which was 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).
In view of our recent holding in Stewart v. Commissioner,
supra, the Court recognizes that the original motion for leave
was timely mailed. 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 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). However, if the motion for leave
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