                         T.C. Memo. 2006-236



                       UNITED STATES TAX COURT



                    DAVID RICE, Petitioner v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 19682-05L.               Filed November 2, 2006.



     David Rice, pro se.

     Lisa K. Hunter, for respondent.



                         MEMORANDUM OPINION


     RUWE, Judge:    This case is before the Court on petitioner’s

Motion to File Motion to Vacate Order of Dismissal for Lack of

Jurisdiction/Embodying Motion to Vacate Order of Dismissal for

Lack of Jurisdiction (hereinafter referred to as petitioner’s

motion for leave).   We must decide whether to grant petitioner’s

motion for leave.    Our action on petitioner’s motion for leave
                                 - 2 -

will determine whether the Court has jurisdiction to decide

whether the proposed collection against petitioner may proceed.

At all relevant times, petitioner resided in Omaha, Nebraska.

                              Background

     On September 16, 2005, respondent issued to petitioner a

Notice of Determination Concerning Collection Actions(s) Under

Section 6320 and/or 6330 (notice of determination) regarding his

unpaid Federal tax liabilities for 1999 and 2001.1      Respondent’s

Office of Appeals determined that it was appropriate to collect

petitioner’s unpaid taxes by levy.       On October 14, 2005,

petitioner sent to the Court a document, which states in relevant

part:

     Dear Tax Court Judge,

     The Collection Due Process Hearing that I requested has
     been decided. I need your assistance regarding a
     Notice of Determination I received from the Internal
     Revenue Service for the tax year 1999 and 2001. I
     believe that this hearing was unfair and biased. I was
     not provided information that I requested from the
     hearing agent.

        The letter states that I must file a petition with the
        U.S. Tax Court if I believe the IRS numbers are wrong.
        I think the IRS is wrong but I am not sure if I am
        doing this protest right. I told the IRS I didn’t owe
        them anything and they still have not shown me any
        proof to support their claim. Could you please write
        to me and let me know the procedure?



     1
       Unless otherwise indicated, section references are to the
Internal Revenue Code in effect for the years in issue, and all
Rule references are to the Tax Court Rules of Practice and
Procedure.
                               - 3 -

     I need the help of the Tax Court to clarify this
     matter. I am unclear as to what rules of procedure and
     evidence were to preside over my Collection Due Process
     Hearing. Although I asked many times I never received
     any information on such procedures. The agent was no
     help at all.

     Now a whole new procedure is beginning and I am more
     confused. I am unsure of what to do from here. Will
     you please advise what my next steps are and if there
     is public council available for my assistance? When am
     I supposed to go to court over this? Would I receive
     the assistance of a public defender?

     Thank you for reading my letter and trying to help me.

     This document failed to comply with the Rules of the Court

as to the form and content of a proper petition.   Petitioner also

failed to submit the required filing fee.   Nevertheless, on

October 20, 2005, the Court filed petitioner’s document as an

imperfect petition regarding respondent’s notice of

determination.   By order dated October 21, 2005, the Court

directed petitioner to file a proper amended petition and to pay

the filing fee on or before December 5, 2005.   The order stated

that if an amended petition and the filing fee were not received

on or before December 5, 2005, the case would be dismissed.

Petitioner failed to respond to the Court’s October 21, 2005,

order.   On January 23, 2006, the Court entered an Order of

Dismissal for Lack of Jurisdiction (order of dismissal).

     On April 19, 2006, petitioner mailed a document labeled

“Request Permission to File Motion to Vacate Order of Dismissal
                                - 4 -

For Lack of Jurisdiction/Motion to Vacate Order of Dismissal for

Lack of Jurisdiction”, which states in relevant part:2

     REQUEST PERMISSION TO FILE MOTION TO VACATE ORDER OF
             DISMISSAL FOR LACK OF JURISDICTION

     PETITIONER respectfully requests permission from the
     Court to file this motion to vacate “ORDER OF DISMISSAL
     FOR LACK OF JURISDICTION” for the tax years 1999 and
     2001, with Docket No. 19682-05L. PETITIONER also
     request [sic] leave from the court to accept
     PETITIONER’s amended petition. PETITIONER desires to
     dispute the RESPONDENT’s determination made with
     respect to PETITIONER’s income taxes for the tax year.

     MOTION TO VACATE ORDER OF DISMISSAL FOR LACK OF
                         JURISDICTION

     PETITIONER respectfully requests that the Court vacate
     its Order of Dismissal for Lack of Jurisdiction and
     determine the case laid out by the PETITIONER’s Amended
     Petition, which will be filed concurrently with this
     motion. PETITIONER will also file Motion to Remand and
     Designation of Place of Trial concurrently with this
     motion.

Petitioner mailed an amended petition in the same envelope as the

motion for leave.    These documents were received by the Court on

April 26, 2006, 93 days after the order of dismissal was

entered.3    The Court filed petitioner’s document as a “Motion to

File Motion To Vacate Order of Dismissal for Lack of




     2
       Except in limited circumstances that do not apply here,
Rule 54 generally requires motions to be separately stated and
not joined together. We allowed the document to be filed here in
the interest of judicial administration but do not purport to
sanction the filing of joint motions in future cases.
     3
         Petitioner also paid the filing fee.
                                 - 5 -

Jurisdiction/Embodying Motion to Vacate Order of Dismissal for

Lack of Jurisdiction” (Mot. for leave).

     On July 31, 2006, respondent issued two Forms 668-A, Notice

of Levy, to Midwest Bank NA-Data Center and Ameritrade Inc.    On

the same day, respondent issued a Form 668-W, Notice of Levy on

Wages, Salary and Other Income, to Mutual of Omaha Insurance Co.4

     On August 14, 2006, petitioner filed a Motion to Restrain

Assessment or Collection (Motion to Restrain) requesting the

Court “to stop the IRS collection of tax claimed to be owed for

1999.”   On August 15, 2006, the Court issued an order directing

respondent to refrain from collection action pursuant to the levy

determination until the Court acted on petitioner’s motion for

leave and further directed respondent to file a response to

petitioner’s motion for leave.    On August 28, 2006, respondent

filed a response objecting to petitioner’s motion for leave and

also filed a Motion to Permit Levy pursuant to Rule 50(a) and

section 6330(e)(2).5   In respondent’s objection to petitioner’s

     4
       At the time of these levies, petitioner’s motion for leave
had not been served on respondent.
     5
       Sec. 6330(e)(1) provides, in pertinent part, that, except
as provided in par. (2), if a hearing is requested under sec.
6330(a)(3)(B), the levy actions which are the subject of the
requested hearing “shall be suspended for the period during which
such hearing, and appeals therein, are pending.” Sec. 6330(e)(2)
provides: “Paragraph (1) shall not apply to a levy action while
an appeal is pending if the underlying tax liability is not at
issue in the appeal and the court determines that the Secretary
has good cause not to suspend the levy.”
                                                   (continued...)
                               - 6 -

motion for leave and in his motion to permit levy, respondent

alleges that petitioner’s underlying tax liabilities are not at

issue and that release of the levied funds would be highly

prejudicial to respondent.   In support of his position,

respondent alleges that petitioner was offered an opportunity for

a hearing before an Appeals officer but failed to take such

opportunity and instead responded with letters asserting

frivolous arguments.   Respondent alleges that petitioner is

merely attempting to delay collection of his liabilities.

Respondent attached copies of the notice of deficiency with

regard to petitioner’s tax year 1999 that indicate it was sent to

petitioner on December 18, 2002.   The notice of deficiency

determined an increase in tax of $1,421,128, a section 6654

failure to pay estimated income tax penalty of $68,447.66 and a

section 6651 failure to file or to pay tax penalty of

$353,433.83.   Respondent states that petitioner did not file a

petition for redetermination of the proposed deficiency with the

Tax Court.

     In two separate orders dated August 29, 2006, the Court

directed petitioner to reply on or before September 13, 2006, to

respondent’s objection to petitioner’s motion for leave and to

     5
      (...continued)
     In the motion to permit levy, respondent states that he has
since released outstanding wage levies, and has advised Midwest
Bank NA-Data Center and Ameritrade Inc. not to remit the levied
funds at this time.
                               - 7 -

respond to respondent’s motion to permit levy.    Petitioner failed

to respond to the Court’s orders.

                            Discussion

     This Court can proceed in a case only if it has

jurisdiction, and either party, or the Court sua sponte, can

question jurisdiction at any time.     Stewart v. Commissioner, 127

T.C. ___, ___ (2006) (slip op. at 6); Estate of Young v.

Commissioner, 81 T.C. 879, 880-881 (1983).

     On January 23, 2006, we dismissed petitioner’s case for lack

of jurisdiction.   An order of dismissal for lack of jurisdiction

is treated as the Court’s decision.    Stewart v. Commissioner,

supra at ___ (slip op. at 5); Hazim v. Commissioner, 82 T.C. 471,

476 (1984).   Section 7459(c) provides, in relevant part:

          SEC. 7459(c). Date of Decision.–- * * *. * * *
     if the Tax Court dismisses a proceeding for lack of
     jurisdiction, an order to that effect shall be entered
     in the records of the Tax Court, and the decision of
     the Tax Court shall be held to be rendered upon the
     date of such entry.

The word “decision” refers to decisions determining a deficiency

and orders of dismissal for lack of jurisdiction.    Ryan v.

Commissioner, 517 F.2d 13, 16 (7th Cir. 1975); Commissioner v. S.

Frieder & Sons Co., 228 F.2d 478, 480 (3d Cir. 1955); Stewart v.

Commissioner, supra at ___ (slip op. at 5).

     Except for very limited exceptions, none of which applies

here, this Court lacks jurisdiction once a decision or dismissal

for lack of jurisdiction becomes final within the meaning of
                                - 8 -

section 7481.    Stewart v. Commissioner, supra at ___ (slip op. at

6-7 & n.3).    A decision of the Tax Court becomes final “Upon the

expiration of the time allowed for filing a notice of appeal, if

no such notice has been duly filed within such time”.   Sec.

7481(a)(1).    Section 7483 provides that a notice of appeal may be

filed within 90 days after a decision is entered.6

     Pursuant to rule 13(a) of the Federal Rules of Appellate

Procedure, if under the Tax Court’s Rules a party makes a timely

motion to vacate or revise a decision, “the time to file a notice

of appeal runs from the entry of the order disposing of the

motion or from the entry of a new decision, whichever is later.”7




     6
       As previously explained, an order of dismissal for lack of
jurisdiction is treated as the Court’s decision.
     7
         Fed. R. App. P. 13(a) provides:

     Rule 13. Review of a Decision of the Tax Court.

     (a) How Obtained; Time for Filing Notice of Appeal.
     (1) Review of a decision of the United States Tax Court
     is commenced by filing a notice of appeal with the Tax
     Court clerk within 90 days after the entry of the Tax
     Court’s decision. At the time of filing, the appellant
     must furnish the clerk with enough copies of the notice
     to enable the clerk to comply with Rule 3(d). If one
     party files a timely notice of appeal, any other party
     may file a notice of appeal within 120 days after the
     Tax Court’s decision is entered. (2) If, under Tax
     Court rules, a party makes a timely motion to vacate or
     revise the Tax Court’s decision, the time to file a
     notice of appeal runs from the entry of the order
     disposing of the motion or from the entry of a new
     decision, whichever is later.
                               - 9 -

     Rule 162 provides that “Any motion to vacate or revise a

decision, with or without a new or further trial, shall be filed

within 30 days after the decision has been entered, unless the

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

his 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
                               - 10 -

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,

836 (E.D. Cal. 1992), affd. without published opinion 5 F.3d 536

(9th Cir. 1993).8

     Whether to grant petitioner’s motion for leave is

discretionary.    Stewart v. Commissioner, supra at ___ (slip op.

at 5-6).    However, a timely motion for leave, without more, is

not necessarily sufficient to persuade the Court to grant such



     8
       In Nordvik v. Commissioner, 67 F.3d 1489, 1492 n.2 (9th
Cir. 1995), affg. T.C. Memo. 1992-731, the Court of Appeals for
the Ninth Circuit expressly adopted the reasoning of the District
Court in Haley v. Commissioner, 805 F. Supp. 834 (E.D. Cal.
1992), affd. without published opinion 5 F.3d 536 (9th Cir.
1993).
                              - 11 -

motion.   In deciding what action to take, “We are guided

primarily by whether it would be in the interest of justice to

vacate the prior decision.   But, we also recognize that

litigation must end at sometime.”    Estate of Egger v.

Commissioner, 92 T.C. 1079, 1083 (1989); Manchester Group v.

Commissioner, T.C. Memo. 1997-576.     A repeated failure to follow

the Court’s orders by the party filing the motion for leave is a

factor that would weigh against granting the motion.

     Petitioner failed to timely respond to the Court’s October

21, 2005, order to file a proper petition.    After his case was

dismissed for lack of jurisdiction, petitioner waited until the

time for appeal was about to expire to file his motion for leave.

Petitioner’s failure to comply with the Court’s subsequent orders

directing him to file a reply to respondent’s objection to

petitioner’s motion for leave and to file a response to

respondent’s motion to permit levy is the most recent example of

petitioner’s failures to properly pursue this matter.

     Therefore, in the exercise of our discretion and in the

interests of justice, we will deny petitioner’s motion for leave.

It follows that the Court’s order of dismissal for lack of

jurisdiction in this case became final on April 24, 2006, 91 days

after our order of dismissal for lack of jurisdiction.9     Because


     9
       Apr. 23, 2006, the 90th day after the Court entered the
order of dismissal, fell on a Sunday. Although that is the day
                                                   (continued...)
                             - 12 -

we no longer have jurisdiction in this matter, petitioner’s

motion to restrain collection and respondent’s motion to permit

levy are moot, and our order of August 15, 2006, directing

respondent to refrain from collection action pending action on

petitioner’s motion for leave is vacated and set aside.

     To reflect the foregoing,

                                        An appropriate order will

                                   be issued.




     9
      (...continued)
that the Court’s order of dismissal would normally become final,
pursuant to sec. 7503 petitioner had until Apr. 24, 2006, the
following Monday, to file a notice of appeal. See also Fed. R.
App. P. 26(a)(3).
