- 14 - We hold that petitioner’s motion for leave to file his motion to vacate the Court’s order of dismissal will, pursuant to section 7502, be deemed filed on June 8, 2006, the date it was mailed. Therefore, petitioner’s motion for leave was filed before the expiration of the 90-day appeal period. VI. Effect of the Motion for Leave To File Motion To Vacate Whether the Court retains jurisdiction over petitioner’s case depends on whether the Court grants leave to file petitioner’s motion to vacate. If the motion for leave to file a motion to vacate is filed before the decision becomes final and the Court grants the motion for leave, then the time for appeal is extended. Manchester Group v. Commissioner, 113 F.3d at 1088; Nordvik v. Commissioner, 67 F.3d 1489, 1492 (9th Cir. 1995), affg. T.C. Memo. 1992-731. Petitioner’s motion to vacate was treated as embodied in the motion for leave. In Simon v. Commissioner, 176 F.2d 230, 232 (2d Cir. 1949), affg. a Memorandum Opinion of this Court, the Court of Appeals for the Second Circuit held that when a party files a motion for leave to file a motion for reconsideration together with the motion for reconsideration before the end of the 90-day period, and the motion for leave is granted, the motions extend the time for appeal and the date of finality.8 In Nordvik v. Commissioner, 8 Simon v. Commissioner, 176 F.2d 230 (2d Cir. 1949), affg. (continued...)Page: Previous 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 Next
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