- 8 -
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.
Commissioner, 67 F.3d 1489, 1492 (9th Cir. 1995), affg. T.C.
Memo. 1992-731; Stewart v. Commissioner, supra at ___ (slip op.
at 14). However, if the motion for leave is not granted, the
motion to vacate cannot be filed. If the motion to vacate is not
filed, the appeal period is not extended, and the order of
dismissal for lack of jurisdiction is final. The filing of a
taxpayer’s motion for leave to file a motion to vacate does not
extend the time for appeal unless the Court grants the motion for
leave and permits the filing of the motion to vacate. Nordvik v.
Commissioner, supra at 1492; Stewart v. Commissioner, supra at
___ (slip op. at 15-16); Haley v. Commissioner, 805 F. Supp. 834,
Page: Previous 1 2 3 4 5 6 7 8 9 10 Next
Last modified: May 25, 2011