Sharina White - Page 8

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          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,           









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