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supra at 1492, the Court of Appeals for the Ninth Circuit stated
it was irrelevant that the taxpayers filed the motion for leave
to file a motion to vacate without the substantive motion to
vacate. The Court of Appeals held that so long as the motion for
leave is filed within the 90-day period and the Tax Court grants
the motion for leave and thereafter makes a decision on the
merits of the motion to vacate, then the time for appeal is
extended.
If the Court does not grant the motion for leave, then the
motion to vacate could not be filed and the decision would become
final. Id. Unlike the filing of a motion to vacate, the filing
of a taxpayer’s motion for leave to file a motion to vacate would
not affect the time for appeal unless the Court granted the
motion for leave and considered the merits of the motion to
vacate. Id.; Haley v. Commissioner, 805 F. Supp. 834, 836 (E.D.
8(...continued)
a Memorandum Opinion of this Court, rejects the Court of Appeals
for the First Circuit’s opinion in Denholm & McKay Co. v.
Commissioner, 132 F.2d 243, 248 (1st Cir. 1942), affg. 39 B.T.A.
767 (1939), holding that the Tax Court retains jurisdiction to
consider a motion for reconsideration only if the Court acts on
the motion before the end of the 90-day period at which the
original decision becomes final. The Court of Appeals for the
Second Circuit reasoned that the ability to seek review should
not depend on the Tax Court’s docket. Simon v. Commissioner,
supra at 232; Nordvik v. Commissioner, 67 F.3d 1489, 1492 (9th
Cir. 1995), affg. T.C. Memo. 1992-731.
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