Judith Walther - Page 7

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          Court shall otherwise permit.”  (Emphasis added.)  Petitioner did           
          not file a motion to vacate or revise within 30 days after the              
          Court’s order of dismissal was entered.  Therefore, in order for            
          her motion to vacate to be considered timely filed, Rule 162                
          required petitioner to file a motion for leave to file a motion             
          to vacate or revise, the granting of which lies within the sound            
          discretion of the Court.  See Rule 162; Heim v. Commissioner, 872           
          F.2d 245, 246 (8th Cir. 1989), affg. T.C. Memo. 1987-1; Stewart             
          v. Commissioner, supra at ___ (slip op. at 5-6); Brookes v.                 
          Commissioner, 108 T.C. 1, 7 (1997).                                         
               Petitioner’s motion for leave was postmarked and mailed                
          prior to the expiration of the 90-day appeal period.  The timely-           
          mailing/timely-filing provisions of section 7502 apply to a                 
          motion for leave to file a motion to vacate a decision that is              
          mailed and postmarked prior to, but received by the Court after,            
          the expiration of the 90-day appeal period.  Stewart v.                     
          Commissioner, supra at ___ (slip op. at 13).  Therefore, we have            
          jurisdiction to consider petitioner’s motion for leave.  However,           
          whether the Court retains jurisdiction over petitioner’s case               
          depends on whether the Court grants leave to file petitioner’s              
          motion to vacate.  Id. at ___ (slip op. at 14).  If the Court               
          grants the motion for leave, then the time for appeal is                    
          extended.  Manchester Group v. Commissioner, 113 F.3d 1087, 1088            
          (9th Cir. 1997), revg. T.C. Memo. 1994-604; Nordvik v.                      






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