William A. Stewart - Page 14

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               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...)           





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