  United States Bankruptcy Appellate Panel
                     FOR THE EIGHTH CIRCUIT



                         No. 98-6012NI


In re:                                   *
                                *
RICHARD D. RAYMON,                    *
                               *
                   Debtor.     *
                               *
INTERNAL REVENUE SERVICE,      * Appeal from the United
                             States
                               * Bankruptcy Court for the
                   Appellant,            *    Northern
                        District of Iowa
                               *
v.                             *
                               *
RICHARD D. RAYMON,             *
                               *
                   Appellee.       *



                Submitted: February 5, 1998
                  Filed: February 19, 1998


Before KRESSEL, WILLIAM A. HILL and SCHERMER, United States
Bankruptcy Judges

SCHERMER, Bankruptcy Judge:

     The United States of America, on behalf of the Internal
Revenue Service (the “Service”) appeals an order granting
Debtor’s Motion for Procedural Sanctions and limiting the
Service’s ability to admit certain evidence at trial on the
Debtor’s declaratory action to determine dischargeability of
certain tax liabilities. Because we find that the Service’s
Notice of Appeal was untimely, we hold that this court lacks
jurisdiction to hear this appeal, and therefore, we dismiss the
appeal.

     This   appeal   arises   out  of   a   rather  protracted
dischargeabilty action filed by the Debtor to determine that
certain tax liabilities had been paid and that any remaining
tax liabilities were thereafter more than three years old on
the date of filing the Debtor’s bankruptcy petition. Thus, the
Debtor asserted that such taxes were not excepted from
discharge under 11 U.S.C. § 523(a)(1)(A).       Throughout the
bankruptcy litigation, the bankruptcy court scheduled and then
granted continuances to the Service to meet various deadlines
for production of tax-payment information requested by the
Debtor. One year after the court’s first order requiring the
Service to produce the requested documents, the Debtor filed
a Motion for Summary Judgment, or for Procedural Sanctions
against the Service, seeking sanctions because the Service
continued to delay in its compliance with discovery orders.

     On December 23, 1997, the United States Bankruptcy Court
for the Northern District of Iowa1 entered an order granting
Debtor’s Motion for Procedural Sanctions against the Service
and limiting the evidence the Service could admit at trial as
a consequence for its failures to meet the various discovery
deadlines. On January 5, 1998, the Service filed a Motion for
Extension of Time to Appeal the December 23, 1997 Order. In
its motion, the Service requested that the appeal deadline be
extended through January 13, 1998.2


       1
          The Honorable Paul J. Kilburg, United States Bankruptcy Judge for the Northern
District of Iowa.
       2
          Interestingly, the Service acknowledged in its Motion to Extend Time that Rule 8002 of
the Federal Rules of Bankruptcy Procedure controlled its appeal and that it believed the ten-day
time period for appeals under Rule 8002 expired on January 3, 1998. In the prayer for relief of its

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     On January 5, 1998, the Debtor also filed a Motion to
Reconsider or to Expand Findings of Fact with respect to the
December 23, 1997 Order. The Debtor sought to have the court
clarify or supplement its December 23, 1997 Order by addressing
whether the




Motion to Extend Time, the Service requested that “the time for filing Appeal be extended for an
additional ten days, from January 3, 1998 up to and including January 13, 1998.” Yet, the
Service did not file its Motion to Extend until January 5, 1998.

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Service’s failure to meet discovery deadlines was deliberate
in light of the Debtor’s allegations that the Service
improperly altered certain documents.

     On January 8, 1998, the bankruptcy court denied Debtor’s
Motion to Reconsider, and in a separate order of the same date,
denied the Service’s request for additional time to appeal,
holding that the Service’s request for additional time to
appeal became moot as a result of the Debtor’s Motion to
Reconsider. Specifically, and in relevant part, the Order
denying an extension of time to appeal stated:

         The United States on behalf of the Internal
    Revenue Service filed this Motion for Extension of
    Time for Appeal on January 5, 1998. On that same
    date, Plaintiff/Debtor Richard D. Raymon filed a
    Motion to Reconsider or to Expand Findings of Fact.
    Pursuant to Fed. R. Bankr. P. 8002(b), the time for
    appeal for all parties runs from the entry of the
    order disposing of Debtor’s motion. As the 10-day
    time for appeal will now run beyond January 13, 1998,
    it is unnecessary to consider the IRS’ Motion for
    Extension of Time for Appeal to January 13, 1998.
    Therefore the Motion is moot.

     The Court entered its Orders of January 8, 1998 on January
13, 1998, and thereafter, on January 20, 1998, the Service
filed its Notice of Appeal.

     Bankruptcy Rule 8002(a) requires a notice of appeal to be
filed within ten days of the date of entry of the judgment,
order or decree appealed from. Once the time for filing an
appeal has expired, “an appellate court is without authority
to exercise its jurisdiction.” Vogelsang v. Patterson Dental
Co., 904 F.2d 427, 429 (8th Cir. 1990); accord Crockett v.
Lineberger, 205 B.R. 580, 581 (B.A.P. 8th Cir. 1997).  In this
case, the Service filed its Notice of Appeal from the December


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23, 1997 Order on January 20, 1998, clearly beyond the ten-day
period for appeal under Bankruptcy Rule 8002(a).     This court
has recently addressed the issue of untimely appeals, and we
have consistently held that we lack subject matter jurisdiction
where a notice of appeal is untimely.          See Luedtke v.
Nationsbanc Mortgage Corp. (In re Luedtke), 215 B.R. 390, 391
(B.A.P. 8th Cir. 1997); United States v. Henry Bros.
Partnership (In re Henry Bros. Partnership), 214 B.R. 192, 196
(B.A.P. 8th Cir. 1997); and Crockett, 205 B.R. at 581 (“Rule
8002(a)’s ten-day time frame is both ‘mandatory




                               5
and jurisdictional.’” quoting Carnahan, Carnahan & Hickle v.
Rozark Farms, Inc. (In re Rozark Farms, Inc.), 139 B.R. 463,
465 (E.D. Mo. 1992)).

     Because the Service filed a Motion to Extend Time to File
Appeal, however, we must consider whether that motion preserved
the Service’s otherwise untimely appeal. Similarly, because
the Debtor filed a Motion to Alter the judgment, we must also,
and separately, consider whether the Debtor’s Motion renders
this appeal timely.

The Service’s Request for Extension of Time

     Under Bankruptcy Rule 8002(c), the bankruptcy court may
extend the time for filing a notice of appeal for a period not
to exceed 20 days from the time otherwise prescribed for
appeal, but may do so only if such request is made before the
time for filing a notice of appeal has expired. See Hartford
Casualty Insur. Co. v. Food Barn Stores, Inc. (In re Food Barn
Stores, Inc.), 214 B.R. 197, 199 (B.A.P. 8th Cir. 1997). In
this case, the Service made its request to extend the time for
appeal of the December 23, 1997 Order on January 5, 1998.
Under Bankruptcy Rule 9006(a), “[w]hen the period of time
prescribed or allowed is less than 8 days, intermediate
Saturdays, Sundays, and legal holidays shall be excluded in the
computation.” Thus, the ten-day period for appeal, and the ten
days within which to timely request an extension to appeal,
expired on January 2, 1998.       The request to extend was,
therefore, untimely.

     Under Bankruptcy Rule 8002(c), the court may grant a
request to extend the time for filing a notice of appeal even
where the request is made after expiration of the ten-day
appeal time, but the court may only do so upon a showing of
excusable neglect. Fed. R. Bankr. P. 8002(c).     There is no

                               6
evidence in the record to support extension of the deadline
because of excusable neglect. See Harlow Fay, Inc. v. Fed.
Land Bank of St. Louis (In re Harlow Fay, Inc.), 993 F.2d 1351,
1353 (8th Cir. 1993)(applying Supreme Court standard for
excusable neglect announced in Pioneer Invest. Servs. v.
Brunswick Assoc. Ltd. Partnership, 507 U.S. 380, 113 S.Ct.
1489, (1993) and citing cases holding that employee turnover,
attorney’s busy practice, upheaval in law practice and
confusion from moving law offices are not excusable




                               7
neglect (citations omitted)). Thus, the Service’s untimely
Motion to Extend Time did not extend the appeal period.

The Debtor’s Motion to Alter

     The Debtor’s Motion to Alter the December 23, 1997 Order
also fails to aid the Service’s appeal efforts because that
motion too, was not filed within ten days of the December 23,
1997 Order.    Ordinarily, under Bankruptcy Rule 8002(b), a
motion to alter or amend a judgment (as well as a motion for
new trial or any similar motion specified in Rule 8002(b) (1)
through (4)) suspends the time for appeal by all parties until
disposition of the last of those post-judgment motions.
Indeed, Bankruptcy Rule 8002(b)(4) states that a notice of
appeal filed before disposition of a pending post-judgment
motion is ineffective to appeal the challenged judgment until
entry of an order disposing of the last of such motions.   See
also Design Classics, Inc. v. Westphal (In re Design Classics,
Inc.), 788 F.2d 1384, 1385 (8th Cir. 1986) (holding that
notice of appeal was not effectively taken where appeal was
filed simultaneously with timely motion for reconsideration
because when timely motion for reconsideration is filed, a
notice of appeal filed prior to disposition of the motion to
reconsider has no effect).

     To suspend the time for appeal through a Rule 8002(b)
post-judgment motion, however, it is essential that such motion
itself be filed within ten days of entry of the order
challenged. In this case, because the Debtor filed its motion
to alter the judgment on January 5, 1998, three days after the
ten-day deadline, the Debtor’s motion did not suspend the time
for appeal and cannot be a basis for asserting jurisdiction
over this appeal.




                               8
     For the foregoing reasons, this court lacks jurisdiction
to entertain the Service’s appeal, and this appeal is
accordingly dismissed as untimely.




                              9
A true copy.

    Attest:

         CLERK, U.S. BANKRUPTCY APPELLATE PANEL,
         EIGHTH CIRCUIT




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