William A. Stewart - Page 7

                                        - 7 -                                         

          this Court lacks jurisdiction once a decision becomes final                 
          within the meaning of section 7481.  Abatti v. Commissioner, 859            
          F.2d 115, 117-118 (9th Cir. 1988), affg. 86 T.C. 1319 (1986);               
          Lasky v. Commissioner, 235 F.2d 97, 98 (9th Cir. 1956), affd. 352           
          U.S. 1027 (1957).  As relevant here, a decision of the Tax Court            
          becomes final “Upon the expiration of the time allowed for filing           
          a notice of appeal, if no such notice has been duly filed within            
          such time”.  Sec. 7481(a)(1).  Section 7483 provides that a                 
          notice of appeal may be filed within 90 days after a decision is            
          entered.  As previously explained, an order of dismissal for lack           
          of jurisdiction is treated as the Court’s decision.                         
               Pursuant to rule 13(a) of the Federal Rules of Appellate               
          Procedure, if under the Tax Court’s Rules a party makes a timely            
          motion to vacate or revise a decision, “the time to file a notice           
          of appeal runs from the entry of the order disposing of the                 
          motion or from the entry of a new decision, whichever is later.”4           

               3(...continued)                                                        
          Michaels v. Commissioner, 144 F.3d 495 (7th Cir. 1998), affg.               
          T.C. Memo. 1995-294.  The Court of Appeals for the Fifth Circuit            
          has indicated that we also have jurisdiction to vacate a decision           
          that was the result of mutual mistake.  La Floridienne J.                   
          Buttgenbach & Co. v. Commissioner, 63 F.2d 630, 631 (5th Cir.               
          1933).                                                                      
               4 Fed. R. App. P. 13(a) provides:                                      
               Rule 13. Review of a Decision of the Tax Court.                        
               (a) How Obtained; Time for Filing Notice of Appeal.                    
                                                             (continued...)           





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