- 7 - 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.Page: Previous 1 2 3 4 5 6 7 8 9 10 Next
Last modified: May 25, 2011