                         T.C. Memo. 2006-237



                       UNITED STATES TAX COURT



                  JASON GOLDITCH, Petitioner v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 11944-05L.               Filed November 2, 2006.



     Jason Golditch, pro se.



                         MEMORANDUM OPINION



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

Motion for Leave to File 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.    At all relevant times, petitioner resided in

Watsonville, California.
                                - 2 -

                             Background

     On May 23, 2005, respondent mailed to petitioner a Notice of

Determination Concerning Collection Actions(s) Under Section 6320

and/or 6330 (notice of determination) regarding his unpaid

Federal income tax for 2001.1   Respondent’s Office of Appeals

determined that it was appropriate to collect petitioner’s unpaid

taxes by levy.   On June 20, 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 _2001__. I believe
     that it has been 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?

     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


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

     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.   Nevertheless,

on June 27, 2005, the Court filed the document as an imperfect

petition regarding respondent’s notice of determination.    By

order dated June 30, 2005, the Court directed petitioner to file

a proper amended petition on or before August 15, 2005.    The

order stated that if an amended petition was not received on or

before August 15, 2005, the case would be dismissed.   By order

dated September 13, 2005, the Court extended the time for

petitioner to file an amended petition until October 3, 2005.

Petitioner failed to comply with the Court’s orders to file an

amended petition.   On December 21, 2005, the Court entered an

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

     On April 26, 2006, 126 days after the Court entered its

order of dismissal, petitioner mailed to the Court two documents

entitled “Motion for Leave to File Motion to Vacate Order of

Dismissal for Lack of Jurisdiction” and “Motion to Vacate Order

of Dismissal for Lack of Jurisdiction” (motion to vacate).2



     2
       Both documents were signed and dated Apr. 26, 2006, and
the envelope in which these documents were sent bears a postmark
of Apr. 26, 2006.
                              - 4 -

Petitioner’s motion for leave and motion to vacate state in

relevant part:

     MOTION FOR LEAVE 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 year/s 2001, with
     Docket No. 11944-05L. 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 submitted an amended petition concurrently with the

motion for leave and the motion to vacate.   On June 1, 2006, the

Court filed petitioner’s motion for leave and lodged the motion

to vacate and the amended petition.

                           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).
                               - 5 -

     On December 21, 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).

     In order for us to consider the substantive merits of

petitioner’s motion for leave, we must still have jurisdiction.

Stewart v. Commissioner, supra at ___ (slip op. at 6).      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 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
                                - 6 -

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

Court shall otherwise permit.”    (Emphasis added.)   Petitioner did

not file a motion to vacate or revise within 30 days after 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’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).

     If a motion for leave to file a motion to vacate is filed

before the order of dismissal for lack of jurisdiction becomes

final and 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).   Petitioner’s motion for leave to file a motion

to vacate would not extend the time for appeal unless the Court

granted the motion for leave and considered the merits of the

motion to vacate.   Nordvik v. Commissioner, supra at 1492;

Stewart v. Commissioner, supra at ___ (slip op. at 15-16).     But

in order to grant the motion for leave, the motion for leave must

be filed before the order of dismissal for lack of jurisdiction

has become final.   This is because the Court is without

jurisdiction to act on the motion for leave once the order of
                               - 8 -

dismissal for lack of jurisdiction becomes final.     Stewart v.

Commissioner, supra at ___ (slip op. at 6-8); see Haley v.

Commissioner, 805 F. Supp. 834, 836 (E.D. Cal. 1992), affd.

without published opinion 5 F.3d 536 (9th Cir. 1993).5    If the

Court does not have jurisdiction to grant the motion for leave,

then the motion to vacate could not be filed.     Nordvik v.

Commissioner, supra at 1492; Stewart v. Commissioner, supra at

___ (slip op. at 15).

     The Court entered the order of dismissal on December 21,

2005, and petitioner did not file a notice of appeal within the

time prescribed by section 7483.   Had petitioner mailed his

motion for leave in an envelope postmarked on or before March 21,

2006, we would have had jurisdiction to consider whether to grant

his motion for leave and allow petitioner to file his motion to

vacate.   See Stewart v. Commissioner, supra.   However, petitioner

did not mail the motion for leave until April 26, 2006, 126 days

after the Court entered the order of dismissal.    The motion for

leave was mailed and filed well after the period for appeal

expired and the order of dismissal for lack of jurisdiction had

become final.   Therefore, we lack jurisdiction to consider



     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).
                                 - 9 -

petitioner’s motion for leave.    It follows that the Court’s order

of dismissal for lack of jurisdiction in this case became final

on March 21, 2006, 90 days after our order of dismissal for lack

of jurisdiction was entered and cannot be vacated.

                                             An appropriate order will

                                         be issued.
