                        T.C. Memo. 2006-249



                      UNITED STATES TAX COURT



                  BYRON HOFFMAN, Petitioner v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 12889-05L.               Filed November 14, 2006.

     Byron Hoffman, pro se.



                        MEMORANDUM OPINION


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

Motion for Leave to File Motion to Vacate (hereinafter referred

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

grant petitioner’s motion for leave.    At the time the petition

was filed, petitioner resided in Oakland, California.1




     1
       By order dated Oct. 17, 2005, the Court changed
petitioner’s address to Hayward, California.
                               - 2 -

                             Background

     On June 8, 2005, respondent issued to petitioner a Decision

Letter Concerning Equivalent Hearing Under Section 6330 of the

Internal Revenue Code2 (decision letter) regarding his unpaid

Federal income tax liabilities for 1998 and 2000, in which

respondent’s Office of Appeals sustained the levy action.3    On

July 6, 2005, petitioner sent to the Court a document, which

states in relevant part:

     Dear Tax Court Judge,

     The Collection Due Process (hereafter “CDP”) Hearing
     that I requested has been decided. I need your
     assistance regarding a Notice of Levy I received from
     the Internal Revenue Service (hereafter “IRS”) for the
     tax years 1998 and 2000. I believe that this hearing
     process has been unfair and biased. The IRS appeals
     agent refused to grant me a CDP Hearing, which I
     requested on 12/07/04. Instead, she attempted to give
     me an Equivalent Hearing. Nor did the appeals agent
     provided [sic] the information I requested.

     I am filing a petition with the U.S. Tax Court because
     I believe the IRS numbers are wrong and they have
     violated their own procedures. 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?


     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
       While the basis of petitioner’s claim is not entirely
clear, we note that it is doubtful that a decision letter
concerning an equivalent hearing could be appealed to this Court.
See Offiler v. Commissioner, 114 T.C. 492, 498 (2000).
                               - 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 [sic] 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 July

11, 2005, the Court filed petitioner’s document as an imperfect

petition.   By order dated July 18, 2005, the Court directed

petitioner to file a proper amended petition and to pay the

filing fee on or before September 1, 2005.     The order stated that

if an amended petition and the filing fee were not received on or

before September 1, 2005, the case would be dismissed.     By order

dated October 17, 2005, the Court extended the time for

petitioner to file a proper amended petition and to pay the

filing fee until November 4, 2005.     Petitioner paid the filing

fee but failed to comply with the Court’s orders to file an

amended petition.   On December 7, 2005, the Court entered an

Order of Dismissal for Lack of Jurisdiction (order of dismissal).
                                - 4 -

     On March 6, 2006, 89 days after the order of dismissal was

entered, petitioner mailed to the Court, among other documents, a

Motion to Vacate Order of Dismissal for Lack of Jurisdiction and

Amended Petition.   On March 14, 2006, 97 days after the order of

dismissal was entered, the Court received petitioner’s motion to

vacate and amended petition.   On March 16, 2006, the Court

returned the aforementioned documents to petitioner unfiled

explaining that the order of dismissal was final and the

documents were late.   On June 6, 2006, petitioner mailed to the

Court two documents entitled “Motion for Permission to Re-File

Motions” (motion for leave) and “Motion to Vacate the Order of

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

9, 2006, the Court received the documents and filed petitioner’s

motion for leave as a “Motion for Leave to File Motion to

Vacate”.   The Court received petitioner’s amended petition with

the motion for leave and motion to vacate.

                             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 December 7, 2005, we dismissed petitioner’s case for lack

of jurisdiction.    An order of dismissal for lack of jurisdiction
                               - 5 -

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

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.4

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

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


     4
       As previously explained, an order of dismissal for lack of
jurisdiction is treated as the Court’s decision.
                                - 6 -

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.”5

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

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



     5
         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 -

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 on March 6, 2006, which was 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).

     In view of our recent holding in Stewart v. Commissioner,

supra, the Court recognizes that the original motion for leave

was timely mailed.   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
                                - 8 -

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).6

     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.



     6
       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 failed to file an amended petition or to pay the

required filing fee in accordance with the Court’s July 18, 2005,

order.   On October 17, 2005, the Court extended the time for

petitioner to file an amended petition and to pay the filing fee

until November 4, 2005.   Though petitioner paid the filing fee,

he failed to comply with the Court’s orders to file a proper

amended petition.   After his case was dismissed for lack of

jurisdiction on December 7, 2005, petitioner waited until the

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

     Petitioner has been afforded several opportunities and

sufficient time to file his amended petition.    Petitioner has

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

provided no reasonable excuses for his lack of compliance.     In

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

we will deny petitioner’s motion for leave.7    It follows that the

Court’s order of dismissal for lack of jurisdiction in this case




     7
       See Rice v. Commissioner, T.C. Memo. 2006-236, Walther v.
Commissioner, T.C. Memo. 2006-247, and Sprenger v. Commissioner,
T.C. Memo. 2006-248, in each of which the taxpayer’s imperfect
petition, timing of 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.
                             - 10 -

became final on March 7, 2006, 90 days after the order was

entered.

     To reflect the foregoing,

                                        An appropriate order will

                                   be issued.
