Jan McMaster - Page 7

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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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