                        T.C. Memo. 2006-252



                      UNITED STATES TAX COURT



                   SHARINA WHITE, Petitioner v.
           COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 1622-05L.               Filed November 16, 2006.


     Sharina White, pro se.



                        MEMORANDUM OPINION


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

Motion for Leave to File a Motion to Vacate the Order of

Dismissal (hereinafter referred to as petitioner’s motion for

leave).   We must decide whether to grant petitioner’s motion for
                                - 2 -

leave.   When the petition was filed, petitioner resided in

Fairfield, Iowa.1

                             Background

     On December 3, 2004, respondent issued to petitioner a

Notice of Determination Concerning Collection Actions(s) Under

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

unpaid Federal income taxes for 1999 and 2000.2   Respondent’s

Office of Appeals determined that it was appropriate to collect

petitioner’s unpaid taxes by levy unless petitioner exercised her

right to judicial review.    On December 29, 2004, petitioner sent

to the Court a document, which states in relevant part:

     Dear Tax Court Judge,

     I received a deficiency letter from the IRS.

     I need your assistance regarding a Notice of Deficiency
     I received from the Internal Revenue Service. 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 correctly. Can you please respond with
     instructions regarding the procedures I am to take?

     Will you please assist me and explain what is going on?
     When am I supposed to appear in court over this? Will
     I receive any assistance from the courts in acquiring
     legal representation?

     1
       The Court subsequently changed petitioner’s address to
Kihei, Hawaii, on the basis of petitioner’s notification in her
motion for leave.
     2
       Unless otherwise indicated, all 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 -


     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

January 4, 2005, the Court filed petitioner’s document as an

imperfect Petition for Lien or Levy Action Under Code Section

6320(c) or 6330(d).    By order dated January 27, 2005, the Court

directed petitioner to file a proper amended petition and to pay

the filing fee on or before March 14, 2005.   The order stated

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

on or before March 14, 2005, the case would be dismissed.   By

order dated May 6, 2005, the Court extended the time for

petitioner to file a proper amended petition until May 26, 2005,

and waived the filing fee.   The Court extended the time to file

an amended petition again on June 8, 2005, until June 30, 2005,

and a third time on June 28, 2005, until July 19, 2005.

Petitioner failed to timely respond to the Court’s orders to file

an amended petition.   On October 27, 2005, the Court entered an

Order of Dismissal for Lack of Jurisdiction (order of dismissal).

     On January 25, 2006, 90 days after the order of dismissal

was entered, petitioner mailed to the Court a Motion to Vacate

Order of Dismissal for Lack of Jurisdiction (motion to vacate),

which the Court received on February 1, 2006, 97 days after the

order of dismissal was entered.   On February 16, 2006, the Court
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returned petitioner’s motion to vacate because the case was

closed, and the order of dismissal was final.

     Petitioner mailed to the Court a document entitled “Motion

to Vacate Order of Dismissal for Lack of Jurisdiction/Amended

Petition/Motion to Remand” that was received by the Court on

March 15, 2006.   On the same day, the Court filed petitioner’s

document as a “Motion for Leave to File Motion to Vacate

Embodying Motion to Vacate”.   Petitioner attached to the motion

“Track & Confirm” search results from the U.S. Postal Service Web

site indicating that the original motion to vacate she sent was

in fact mailed on January 25, 2006, 90 days after the order of

dismissal was entered.   On March 29, 2006, the Court denied

petitioner’s motion for leave to file motion to vacate embodying

motion to vacate.

     On May 11, 2006, the Court filed another document from

petitioner entitled “Motion for Leave to File a Motion to Vacate

the Order of Dismissal” (motion for leave).   In the motion for

leave, petitioner argues that the motion from March 15, 2006, was

just an “effort to correct a previous error” in an attempt to re-

file the documents she sent on January 25, 2006, which went

unfiled.   Petitioner argues further that the motion for leave

deserves to be treated as timely filed, as of January 25, 2006.

Petitioner mailed a Motion to Vacate the Order of Dismissal and

an amended petition concurrently with the motion for leave.
                               - 5 -

                            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 October 27, 2005, 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 an order of dismissal

for lack of jurisdiction becomes final within the meaning of

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

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

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.3

     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.”4

Our 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


     3
       As previously explained, an order of dismissal for lack of
jurisdiction is treated as the Court’s decision.
     4
         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.
                               - 7 -

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

her 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 original motion to vacate, which we will treat

as a motion for leave to file a motion to vacate, was postmarked

and mailed January 25, 2006, 90 days after the Court’s order of

dismissal was entered.   The Court rejected petitioner’s original

motion for leave, which was mailed on January 25, 2006, because,

among other things, it was received by the Court after the case

was closed.   Petitioner submitted two subsequent motions for

leave, the first of which was denied.   Petitioner asserts in her

most recent motion for leave that the Court should have filed her

original motion for leave as of January 25, 2006.    In view of our

recent opinion in Stewart v. Commissioner, supra, we agree.

     Petitioner’s original 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
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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,
                                 - 9 -

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

(9th Cir. 1993).5

     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

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.

     Petitioner failed to file an amended petition or to pay the

required filing fee in accordance with the Court’s January 27,

2005, order.     On May 6, 2005, the Court extended the time for

petitioner to file an amended petition until May 26, 2005, and

waived the filing fee.     On June 8, 2005, the Court again extended

the time for petitioner to file an amended petition until June

30, 2005.    On June 28, 2005, and for the third time, the Court

further extended the time for petitioner to file an amended



     5
       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).
                                - 10 -

petition until July 19, 2005.    Petitioner failed to comply with

the Court’s orders to file a proper amended petition.     After her

case was dismissed for lack of jurisdiction, petitioner waited

until the time for appeal was about to expire to file her motion

for leave.

     Petitioner has been afforded several opportunities and

sufficient time to file her amended petition.     Petitioner has

repeatedly failed to comply with the Court’s orders, and she has

provided no reasonable excuses for her lack of compliance.

Therefore, in the exercise of our discretion and in the interests

of justice, we will deny petitioner’s motion for leave.6    It

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

jurisdiction in this case became final on January 25, 2006, 90

days after the order was entered.

     To reflect the foregoing,

                                          An appropriate order will

                                     be issued.




     6
       See Rice v. Commissioner, T.C. Memo. 2006-236, Walther v.
Commissioner, T.C. Memo. 2006-247, Sprenger v. Commissioner, T.C.
Memo. 2006-248, Hoffman v. Commissioner, T.C. Memo. 2006-249, and
McMaster v. Commissioner, T.C. Memo. 2006-251, in each of which
the taxpayer’s filings and failure to comply with the Court’s
orders were similar, resulting in the denial of the taxpayer’s
motion for leave to file a motion to vacate the order of
dismissal for lack of jurisdiction.
