- 15 - 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.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