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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.
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