William A. Stewart - Page 5

                                        - 5 -                                         

          order of dismissal.  The envelope also contained petitioner’s               
          amended petition and a check for the filing fee.                            
                                     Discussion                                       
          I.   Motion To Vacate                                                       
               An order of dismissal for lack of jurisdiction is treated as           
          the Court’s decision.  Hazim v. Commissioner, 82 T.C. 471, 476              
          (1984).  Section 7459(c) provides, in relevant part:                        
                    SEC. 7459(c).  Date of Decision.–- * * *.  * * *                  
               if the Tax Court dismisses a proceeding for lack of                    
               jurisdiction, an order to that effect shall be entered                 
               in the records of the Tax Court, and the decision of                   
               the Tax Court shall be held to be rendered upon the                    
               date of such entry.                                                    
          The word “decision” refers to decisions determining a deficiency            
          and orders of dismissal for lack of jurisdiction.  Ryan v.                  
          Commissioner, 517 F.2d 13, 16 (7th Cir. 1975); Commissioner v. S.           
          Frieder & Sons Co., 228 F.2d 478, 480 (3d Cir. 1955).                       
               Rule 162 provides that “Any motion to vacate or revise a               
          decision, with or without a new or further trial, shall be filed            
          within 30 days after the decision has been entered, unless the              
          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            
          his 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            






Page:  Previous  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  Next

Last modified: May 25, 2011