                         T.C. Memo. 1997-334



                      UNITED STATES TAX COURT



     CARL J.D. BAUMAN AND MARGARET A. BAUMAN, Petitioners v.
           COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket Nos. 37669-85, 38099-85.       Filed July 23, 1997.



     Robert L. Manley, for petitioners.

     Linda J. Wise, for respondent.


                         MEMORANDUM OPINION


     WRIGHT, Judge:   Petitioners move the Court for leave so they

may file a pair of motions to vacate our decisions in docket Nos.

37669-85 and 38099-85.

Background

     These cases involve petitioner husband's (Mr. Bauman)

investment in a coal mining tax shelter.    Trial was conducted in
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June 1994, and the Court filed its opinion on May 2, 1996.    The

Court entered decisions (the decisions) with respect to both

docket Nos. at issue in these cases on September 24, 1996.    On

that date, counsel of record for docket No. 37669-85 was Robert

L. Manley (Mr. Manley), and counsel of record for docket No.

38099-85 was James P. Self (Mr. Self).    The Clerk of the Court

served the decision in docket No. 37669-85 on Mr. Manley.

Similarly, he served the decision in docket No. 38099-85 on Mr.

Self.    Neither party filed a timely notice of appeal with respect

to either decision.

     On February 18, 1997, petitioners appealed the decisions to

the Court of Appeals for the Ninth Circuit.    The Commissioner

thereafter filed a motion to dismiss petitioners' appeal for lack

of jurisdiction, contending that the appeal was not timely.    On

April 24, 1997, the Court of Appeals granted the Commissioner's

motion to dismiss for lack of jurisdiction.

     On May 19, 1997, for the purpose of creating a second period

of appellate review for each decision, petitioners filed the two

motions now before the Court.1    Petitioners maintain that they

failed to appeal the decisions during the prescribed appeal

period because they did not learn that the decisions had been

entered until February 10, 1997, 49 days after the appeal period


     1
      Petitioners also lodged their motions to vacate the
decisions at issue in this case.
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had expired.    Specifically, petitioners maintain that the U.S.

Postal Service failed to deliver the decision in docket No.

37669-85 that the Clerk had served on Mr. Manley.     They further

maintain that Mr. Self failed to inform them that he had been

served with the decision in docket No. 38099-85.2     Petitioners

conclude that their ability to appeal the decisions at issue in

this case should not be impaired simply because the U.S. Postal

Service maintains an erratic delivery service, and because Mr.

Self was irresponsible in failing to advise them of his receipt

of the decision in docket No. 38099-85.

Discussion

     Petitioners desire to file a pair of motions to vacate the

decisions of this Court in docket Nos. 37669-85 and 38099-85.

Their objective is to have the decisions vacated and immediately

reentered so that they may file a timely notice of appeal for

each decision.

     Absent a timely notice of appeal, a decision of the Court

becomes final upon the expiration of 90 days after the decision

is entered.    Secs. 7481(a)(1), 7483.3   To be timely, a notice of

appeal ordinarily must be filed within such 90-day period.     Sec.

     2
      Petitioners contend that Mr. Self has not been involved in
this case since 1987, and that he failed to "formally" withdraw
as their counsel of record.
     3
      Unless otherwise indicated, section references are to the
Internal Revenue Code applicable to the year at issue, and Rule
references are to the Tax Court Rules of Practice and Procedure.
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7483.   However, the running of the period to file a notice of

appeal is tolled if a party files a timely motion to vacate or

revise (motion to vacate) the decision.        F.R. App. P.    13(a).

Rule 162 provides that a motion to vacate a decision must be

filed within 30 days after the date on which the decision is

entered, unless the Court allows otherwise.        An untimely motion

to vacate a decision may nevertheless be considered if the moving

party files a motion for leave to file a motion to vacate the

decision, but the motion for leave must be filed within the 90-

day review period set forth in section 7483.         Nordvik v.

Commissioner, 67 F.3d 1489, 1492 (9th Cir. 1995), affg. T.C.

Memo. 1992-731.     If the Court grants the motion for leave, the

date of finality is extended, and the Court retains jurisdiction

to consider the motion to vacate.        Id.   Otherwise, jurisdiction

is lacking.   Id.    Whether to grant a taxpayer's motion for leave

is within the sound discretion of the Court.         Heim v.

Commissioner, 872 F.2d 245, 246 (8th Cir. 1989), affg. T.C. Memo.

1987-1.

     Petitioners did not file a timely notice of appeal for

either decision in these cases.     Similarly, they did not file a

timely motion to vacate either decision, nor did they file a

timely motion for leave to file a motion to vacate either

decision.   Consequently, pursuant to sections 7481(a) and 7483,

both decisions became final on December 23, 1996.
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     Once a decision becomes final, the Court's jurisdiction to

vacate it is restricted to two circumstances.     Manchester Group

v. Commissioner, 113 F.3d 1087, 1088 (9th Cir. 1997), revg. T.C.

Memo. 1994-604; Abatti v. Commissioner, 859 F.2d 115, 117 (9th

Cir. 1988), affg. 86 T.C. 1319 (1986); Lasky v. Commissioner, 235

F.2d 97, 100 (9th Cir. 1956), affg. 22 T.C. 13 (1954), affd. 352

U.S. 1027 (1957).   First, the Court may vacate an ostensibly

final decision if it lacked jurisdiction to enter the decision

originally.   Billingsley v. Commissioner, 868 F.2d 1081, 1084-

1085 (9th Cir. 1989); see also Abeles v. Commissioner, 90 T.C.

103, 105-106 (1988); Brannon's of Shawnee, Inc. v. Commissioner,

69 T.C. 999, 1002 (1978).   The Court may also vacate a final

decision if it was obtained through fraud on the Court.4    Abatti

v. Commissioner, supra; see also Senate Realty Corp. v.

Commissioner, 511 F.2d 929, 931 n.1 (2d Cir. 1975); Stickler v.

Commissioner, 464 F.2d 368, 370 (3d Cir. 1972).

     Petitioners do not allege that the Court lacked jurisdiction

to enter the decisions at issue in these cases, or that the

decisions arose from either a fraud on the Court or mutual

mistake.   Instead, petitioners' motions for leave are based


     4
      The Court of Appeals for the Fifth Circuit has indicated
that this Court also has jurisdiction to vacate a final decision
which is based on a mutual mistake of fact. See La Floridienne
J. Buttgenbach & Co. v. Commissioner, 63 F.2d 630 (5th Cir.
1933). But cf. Harbold v. Commissioner, 51 F.3d 618, 621-622
(6th Cir. 1995).
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solely on the equitable consideration that "good cause" exists

for us to vacate the decisions because the U.S. Postal Service

failed to deliver the decision in docket No. 37669-85 that was

served on Mr. Manley, and because Mr. Self failed to inform them

that he had been served with the decision in docket No. 38099-85.

It is petitioners' contention that they will be "severely

prejudiced" if the Court denies their motions for leave, because

to do so would preclude their opportunity to appeal the

decisions.

     Petitioners' argument is without merit and must be rejected.

The Clerk of the Court properly served the decisions in these

cases.5   Rule 21(b)(1) and (2).   Both decisions became final on

December 23, 1996, and we are without jurisdiction to alter their

finality.    It should be noted that, while the District Courts

have, in prescribed circumstances, been granted authority to

vacate a final judgment of which a party failed to receive

notice, see 28 U.S.C. sec. 2107(c)(1994); Fed. R. Civ. P. 77(d);

Fed. R. App. P. 4(a)(6), there is no similar grant of authority

in Rule 13 of the Federal Rules of Appellate Procedure or in

section 7483 with respect to this Court.    On the contrary, rule

14 of the Federal Rules of Appellate Procedure provides that Rule

     5
      Service is complete upon mailing, and the Court's records
indicate that the Clerk mailed the decision in docket No. 37669-
85 by certified mail to Mr. Manley at his correct business
address. The Court's records also indicate that the U.S. Postal
Service did not return that decision to the Clerk.
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4 of the Federal Rules of Appellate Procedure does not apply to

review of a decision of this Court.

     Accordingly, petitioners' motions for leave will be denied

on the grounds that we lack authority to vacate the decisions at

issue in these cases.

     To reflect the foregoing,

                                              Appropriate orders

                                         will be issued.
