     Case: 18-60549        Document: 00514912128        Page: 1    Date Filed: 04/11/2019




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                     United States Court of Appeals
                                                                              Fifth Circuit


                                      No. 18-60549                          FILED
                                                                        April 11, 2019
                                    Summary Calendar
                                                                       Lyle W. Cayce
                                                                            Clerk
ANNAMALAI ANNAMALAI; PARVATHI SIVA ANNAMALAI,

                 Petitioners–Appellants,

v.

COMMISSIONER OF INTERNAL REVENUE,

                 Respondent–Appellee.




                              Appeal from a Decision of the
                                United States Tax Court
                                   TC No. 15887-13


Before DENNIS, CLEMENT, and OWEN, Circuit Judges.
PER CURIAM:*
       Annamalai Annamalai and Parvathi Siva Annamalai appeal the denial
of their third motion to vacate styled as a motion for relief from the judgment
under Rule of Civil Procedure 60(b). We previously held that the mandatory
deadline for filing an appeal from the Tax Court decision in this case had
passed. 1 Accordingly, we dismiss this appeal for want of jurisdiction.


       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
       1   See Annamalai v. Comm. Of Internal Revenue, 884 F.3d 530, 534 (5th Cir. 2018).
    Case: 18-60549       Document: 00514912128         Page: 2     Date Filed: 04/11/2019



                                     No. 18-60549
      This is the second appeal from a 2016 Tax Court decision. The Tax Court
initially assessed a deficiency and penalty in its June 23, 2016 order. 2
Appellants filed successive motions to vacate or revise the decision, which the
Tax Court denied. 3 We dismissed the appeal for want of jurisdiction, holding
that “where a party files successive motions to vacate in the Tax Court which
raise substantially the same grounds, only a ruling on the first motion to vacate
restarts the 90-day time period to file an appeal of the Tax Court’s decision.” 4
We reserved the question of whether a successive motion to vacate that raises
“substantially different” grounds for relief could restart the deadline for an
appeal. 5
      Undeterred, appellants returned to the Tax Court and filed a third
motion to vacate styled as a motion for relief from the judgment under Federal
Rules of Civil Procedure 60(b)(6) and 60(d). The Tax Court denied the motion
without opinion on April 30, 2018. Appellants mistakenly filed their notice of
appeal with this court on July 6, 2018. 6 Appellants further argue that the
notice of appeal was filed as early as June 26, 2018, under the “prison mailbox
rule.” 7 The Tax Court docketed the notice of appeal on August 8, 2018, more
than 90 days after the entry of the denial of the third motion to vacate.
      Regardless of the precise date of the notice of appeal, it is too late to
confer jurisdiction on this court. The deadline to file a notice of appeal was 90
days after the Tax Court denied the first motion to vacate its decision on
November 18, 2016. 8 Rule of Appellate Procedure 13(a)(1)(B) allows additional




      2 See id. at 531.
      3 Id.
      4 Id. at 534.
      5 Id. at 533 n.8.
      6 See FED R. APP. P. 4(d).
      7 See Houston v. Lack, 487 U.S. 266, 276 (1988); FED R. APP. P. 4(c).
      8 Annamalai, 884 F.3d at 533; FED R. APP. P. 13(a)(1)(B).

                                             2
    Case: 18-60549       Document: 00514912128       Page: 3   Date Filed: 04/11/2019



                                      No. 18-60549
time to notice an appeal if “a party makes a timely motion to vacate or revise
the Tax Court’s decision.” 9 Tax Court Rule 162 provides that a motion to
vacate is timely if it is filed “within 30 days after the decision has been entered,
unless the [Tax] Court shall otherwise permit.” 10
      Appellants filed their third motion on April 18, 2018, almost two years
after the tax court’s initial decision in June 2016. Even assuming appellants
could file the motion within 30 days of the denial of their latest motion to vacate
or revise, that deadline expired in January 2017. Nor is there any indication
that the Tax Court permitted this otherwise untimely motion. Accordingly, we
need not decide whether this third motion to vacate the judgment raised
substantially different grounds for relief, or whether such a motion, if timely,
could restart the deadline for noticing an appeal.
      The fact that appellants styled their motion as a motion for relief from
the judgment under Rule of Civil Procedure 60(b) does not change the result.
The Tax Court is bound by the Tax Court Rules and may look to the Rules of
Civil Procedure for guidance only when there is no applicable Tax Court Rule
on the matter. 11 There is an applicable Tax Court Rule on the matter, so the
Rules of Civil Procedure do not apply. 12 Appellants’ untimely third motion to
vacate the Tax Court’s judgment cannot restart the time for appeals.
      IT IS ORDERED that Appellants’ Motion for Reconsideration, or in the
Alternative to Correct and or Amend or Supplement the Record on Appeal, as
a motion to Support Timeliness Claim, is DENIED as moot.
      This second untimely appeal is DISMISSED.




      9 FED R. APP. P. 13(a)(1)(B).
      10 TAX CT. R. 162.
      11 TAX CT. R. 1(b).
      12 TAX CT. R. 162.

                                           3
