Byron Hoffman - Page 8

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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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