                            UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                            No. 98-1677



ROBERT TOLBERT; ELLA M. TOLBERT,

                                           Petitioners - Appellants,

          versus


COMMISSIONER OF INTERNAL REVENUE,

                                              Respondent - Appellee.



Appeal from the United States Tax Court.    (Tax Ct. No. 95-3978)


Submitted:   November 19, 1998            Decided:   December 1, 1998


Before HAMILTON and WILLIAMS, Circuit Judges, and BUTZNER, Senior
Circuit Judge.


Affirmed by unpublished per curiam opinion.


Robert Tolbert, Ella M. Tolbert, Appellants Pro Se.      Edward T.
Perelmuter, Loretta C. Argrett, Donald Bruce Tobin, UNITED STATES
DEPARTMENT OF JUSTICE, Washington, D.C.; Stuart L. Brown, INTERNAL
REVENUE SERVICE, Washington, D.C., for Appellee.


Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:

     Robert and Ella M. Tolbert appeal from the tax court’s order

denying their second motion to vacate the court’s decision up-

holding the Commissioner’s determination of deficiencies with re-

spect to their 1989, 1990, and 1991 federal income tax liabilities.

Because the tax court had no jurisdiction to vacate its decision

based on the grounds asserted in Tolberts’ motion, we affirm. See

26 U.S.C. § 748(c) (1994) (tax court’s decision becomes final 90

days after entry); Okon v. Commissioner, 26 F.3d 1025, 1026-27

(10th Cir. 1994) (holding that taxpayer’s second motion to vacate

tax court’s decision did not toll 90-day period in which to

appeal). Accordingly, we affirm.* We dispense with oral argument

because the facts and legal contentions are adequately presented in

the materials before the court and argument would not aid the deci-

sional process.




                                                          AFFIRMED




     *
       In light of this disposition, we deny the Tolberts’ motion
to appoint counsel.


                                 2
