                       T.C. Memo. 2006-247



                     UNITED STATES TAX COURT



                  JUDITH WALTHER, Petitioner v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 10479-05L.             Filed November 14, 2006.



     Judith Walther, pro se.

     Jeremy L. McPherson, for respondent.



                       MEMORANDUM OPINION


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

Motion for Leave to File Motion to Vacate Order of Dismissal

Embodying Motion to Vacate Order of Dismissal (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 Grass Valley, California.
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                             Background

     On May 3, 2005, 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 tax for 1997.1   Respondent’s Office of Appeals

determined that it was appropriate to collect petitioner’s unpaid

taxes by levy.   On May 31, 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 1997. 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, all 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 [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 June

7, 2005, the Court filed petitioner’s document as an imperfect

petition regarding respondent’s notice of determination.    By

order dated June 9, 2005, the Court directed petitioner to file a

proper amended petition and to pay the filing fee on or before

July 25, 2005.   The order stated that if an amended petition and

the filing fee were not received on or before July 25, 2005, the

case would be dismissed.   By order dated October 13, 2005, the

Court extended the time for petitioner to file a proper amended

petition and to pay the filing fee until November 3, 2005.

Petitioner paid the filing fee but failed to timely respond to

the Court’s orders to file an amended petition.    On January 19,

2006, the Court entered an Order of Dismissal for Lack of

Jurisdiction (order of dismissal).

     On April 12, 2006, 83 days after the order of dismissal was

entered, petitioner mailed to the Court a document entitled

“Request Permission to File Motion to Vacate Order of Dismissal
                               - 4 -

for Lack of Jurisdiction/Motion to Vacate Order of Dismissal for

Lack of Jurisdiction”, which states in relevant part:2

     REQUEST PERMISSION 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 1997, with
     Docket No. 10479-05L. 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 a Motion to Remand
     and Designation of Place of Trial concurrently with
     this motion.

     On April 20, 2006, 91 days after the order of dismissal was

entered, the Court filed the document as a “Motion for Leave to

File Motion to Vacate Order of Dismissal Embodying Motion to

Vacate Order of Dismissal”.   Contrary to the language in the

motion for leave, the Court received petitioner’s amended

petition on April 26, 2006.




     2
       Except in limited circumstances that do not apply here,
Rule 54 generally requires motions to be separately stated and
not joined together. We allowed the document to be filed here in
the interest of judicial administration but do not purport to
sanction the filing of joint motions in future cases.
                               - 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 January 19, 2006, 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 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 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.
                                - 8 -

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,

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



     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 -

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 June 9, 2005,

order.   On October 13, 2005, the Court extended the time for

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

until November 3, 2005.   Although petitioner eventually paid the

filing fee, she 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




     6
       See Rice v. Commissioner, T.C. Memo. 2006-236, in 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 Court’s order of
dismissal for lack of jurisdiction.
                               - 10 -

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

jurisdiction in this case became final on April 19, 2006, 90 days

after the order was entered.

     To reflect the foregoing,

                                         An appropriate order will

                                    be issued.
