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is not granted, the motion to vacate cannot be filed. If the
motion to vacate is not filed, the appeal period is not extended,
and the order of dismissal for lack of jurisdiction is final.
The filing of a taxpayer’s motion for leave to file a motion to
vacate does not extend the time for appeal unless the Court
grants the motion for leave and permits the filing of the motion
to vacate. Nordvik v. Commissioner, supra at 1492; Stewart v.
Commissioner, supra at ___ (slip op. at 15-16); Haley v.
Commissioner, 805 F. Supp. 834, 836 (E.D. Cal. 1992), affd.
without published opinion 5 F.3d 536 (9th Cir. 1993).6
Whether to grant petitioner’s motion for leave is
discretionary. Stewart v. Commissioner, supra at ___ (slip op.
at 5-6). However, a timely motion for leave, without more, is
not necessarily sufficient to persuade the Court to grant such
motion. In deciding what action to take, “We are guided
primarily by whether it would be in the interest of justice to
vacate the prior decision. But, we also recognize that
litigation must end at sometime.” Estate of Egger v.
Commissioner, 92 T.C. 1079, 1083 (1989); Manchester Group v.
Commissioner, T.C. Memo. 1997-576.
6 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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