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Court shall otherwise permit.” (Emphasis added.) Petitioner did
not file a motion to vacate or revise within 30 days after the
Court’s order of dismissal was entered. Therefore, in order for
her motion to vacate to be considered timely filed, Rule 162
required petitioner to file a motion for leave to file a motion
to vacate or revise, the granting of which lies within the sound
discretion of the Court. See Rule 162; Heim v. Commissioner, 872
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 motion for leave was postmarked and mailed
prior to the expiration of the 90-day appeal period.4 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). Therefore, we have
jurisdiction to consider petitioner’s motion for leave. However,
whether the Court retains jurisdiction over petitioner’s case
4 June 25, 2006, the 90th day after the order of dismissal
for lack of jurisdiction was entered, fell on a Sunday. Although
that is the day that the Court’s order of dismissal would
normally become final, pursuant to sec. 7503 petitioner had until
June 26, 2006, the following Monday, to file a notice of appeal.
Stewart v. Commissioner, 127 T.C. ___,___ (2006) (slip op. at
13); see also Fed. R. App. P. 26(a)(3). Therefore, petitioner’s
motion for leave is deemed timely filed.
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