PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

SPENCER MEDICAL ASSOCIATES;
AUTOMOTIVE VENTURES,
INCORPORATED, formerly known as
Spencer Toyota, Incorporated, Tax
Matters Partner,
                                                                     No. 97-2149
Petitioners-Appellants,

v.

COMMISSIONER OF INTERNAL REVENUE,
Respondent-Appellee.

Appeal from the United States Tax Court.
(Tax Ct. No. 95-17212)

Argued: May 6, 1998

Decided: July 22, 1998

Before WIDENER and MOTZ, Circuit Judges, and
HOWARD, United States District Judge for the Eastern District of
North Carolina, sitting by designation.

_________________________________________________________________

Affirmed in part and dismissed in part by published opinion. Judge
Motz wrote the opinion, in which Judge Widener and Judge Howard
joined.

_________________________________________________________________

COUNSEL

ARGUED: John David Copeland, LAW OFFICES OF JOHN D.
COPELAND, P.C., Dallas, Texas, for Appellants. Alice Lizbeth
Ronk, Tax Division, UNITED STATES DEPARTMENT OF JUS-
TICE, Washington, D.C., for Appellee. ON BRIEF: Loretta C.
Argrett, Assistant Attorney General, Kenneth L. Greene, Tax Divi-
sion, UNITED STATES DEPARTMENT OF JUSTICE, Washington,
D.C., for Appellee.

_________________________________________________________________

OPINION

DIANA GRIBBON MOTZ, Circuit Judge:

Spencer Medical Associates (SMA) appeals from a decision of the
United States Tax Court sustaining an adjustment assessed by the
Internal Revenue Service (IRS) to the ordinary income reported on
SMA's 1990 partnership tax return, and from an order of the tax court
denying a motion for reconsideration of the tax court's findings and
opinion. Because SMA did not timely file a notice of appeal from the
tax court's decision, we dismiss SMA's appeal of that decision for
lack of jurisdiction. SMA did timely appeal the tax court's denial of
its motion for reconsideration; however, the tax court did not abuse
its discretion in denying the motion. Thus, we affirm the tax court's
decision denying SMA's motion for reconsideration.

I.

Pursuant to 26 U.S.C.A. § 7481(a)(1) (West Supp. 1998), a deci-
sion of the tax court becomes final upon expiration of the time
allowed for filing a notice of appeal. A party must file a notice of
appeal within 90 days after the tax court enters its decision. 26
U.S.C.A. § 7483 (West 1989); Fed. R. App. P. 13(a). When a notice
of appeal from the tax court's decision has not been timely filed, an
appellate court lacks jurisdiction to hear the appeal. See Okon v.
Commissioner, 26 F.3d 1025, 1026 (10th Cir. 1994); Davies v.
Commissioner, 715 F.2d 435, 436-37 (9th Cir. 1983); Robert Louis
Stevenson Apts. v. Commissioner, 337 F.2d 681, 682 (8th Cir. 1964);
see also Alston v. MCI Communications Corp., 84 F.3d 705, 706 (4th
Cir. 1996) (dismissing appeal of discrimination claim for lack of
jurisdiction where appellant failed to file a timely notice of appeal).

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The tax court filed its decision in this case on March 13, 1997. In
order to meet the 90-day requirement of § 7483 and Rule 13(a), SMA
had to file a notice of appeal on or before June 11, 1997. SMA did
not file a notice of appeal from the tax court's decision until August
20, 1997. Unless SMA successfully extended the time available to file
a notice of appeal, the notice was untimely and we lack jurisdiction.

A.

SMA asserts that we have jurisdiction over its appeal of the tax
court's decision because:

          (i) Pursuant to Rule 13(a), "[t]he running of the time for
          appeal is terminated as to all parties by a timely motion to
          vacate or revise a decision . . . . The full time for appeal
          commences to run and is to be computed from the entry of
          an order disposing of such motion, or from the entry of deci-
          sion, whichever is later." Fed. R. App. P. 13(a).

          (ii) Although by its express terms Rule 13(a) only contem-
          plates restarting the time for filing a notice of appeal if the
          party has filed a timely motion to vacate or revise, the Ninth
          Circuit has recently held that a timely motion for reconsider-
          ation will also satisfy Rule 13(a). See Nordvik v.
          Commissioner, 67 F.3d 1489, 1493 (9th Cir. 1995).

          (iii) The motion for reconsideration that it filed on May
          20, 1997, was itself timely filed, and, thus, under Nordvik it
          restarted the 90-day period in which to file the notice of
          appeal, which the Commissioner concedes was timely filed
          if measured from the tax court's order denying the motion
          for reconsideration.

We can find no case law contrary to Nordvik. Assuming, but not
deciding, that we agree with Ninth Circuit on this issue, we turn to
the many claims SMA makes in its attempt to demonstrate that it filed
its motion for reconsideration in a timely manner.

SMA assembles the following argument in support of its conten-
tion that its motion for reconsideration was timely filed:

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(i) Pursuant to Tax Court Rules 161 and 162, the time to
file a motion for reconsideration or a motion to vacate or
revise expires 30 days after the date of decision. According
to SMA, that expiration date would be April 14, 1997.

(ii) It mailed a single unified motion for extension of time
to file a motion for reconsideration or a motion to vacate or
revise on April 9, 1997, which the court stamped as received
on April 10, 1997. Thus, pursuant to 26 U.S.C.A.§ 7502
(West Supp. 1998), the motion to extend is deemed filed on
April 9, the date of mailing.

(iii) Pursuant to Tax Court Rule 163, "[m]otions under
Rules 161 and 162 shall be made separately from each
other." Thus, on April 21, 1997, it mailed to the court sepa-
rate "amended" motions for extended time to file a motion
for reconsideration and a motion to vacate or revise.
Although listed in the docket records as filed on April 23,
1997, pursuant to § 7502 these motions are deemed filed
when mailed on April 21.

(iv) Pursuant to Tax Court Rules 41(d) and 50, the
amended motions relate back to April 9, the filing date of
the original unified motion.

(v) When the original unified motion for extension of time
was filed on April 9, it tolled the 30-day period in which to
file a motion for reconsideration. At that point, five days
remained, i.e., April 10-14.

(vi) The tax court denied the motions for extension of time
on May 13, 1997. Thus, SMA had five days left in which
to file a motion for reconsideration or a motion to vacate or
revise, i.e., it had to file on or before May 18.

(vii) SMA mailed the motion for reconsideration on May
16. Thus, although the docket does not list the motion as
filed until May 20, it is deemed filed on May 16 pursuant
to § 7502, which meets the May 18 deadline.

          4
         (viii) Because it timely filed the motion for reconsidera-
         tion, the period to appeal the tax court decision restarted on
         May 21, 1997, the date of the tax court order denying the
         motion for reconsideration. As the Commissioner acknowl-
         edges, the notice of appeal is deemed filed on August 15,
         1997, which was within 90 days from May 21.

B.

We must reject SMA's argument for numerous reasons.

First, SMA never filed a motion to vacate or revise the tax court's
decision pursuant to Rule 162. Rather, it filed a"Motion for Recon-
sideration of Findings or Opinion pursuant to Rule 161." J.A. 62. A
Rule 161 motion "shall be filed within 30 days after a written opinion
. . . ." Tax Ct. R. 161 (emphasis added). The tax court filed its written
opinion on March 12, 1997. The 30-day period therefore would have
expired on April 11, 1997, not April 14, 1997.1 Even if we accept the
rest of SMA's timing argument, it only had two days remaining to file
a motion for reconsideration when the tax court filed its May 13 order
denying the motions for extension of time -- i.e., SMA had to file its
motion for reconsideration on or before May 15, 1997, which it
clearly did not do. Thus, accepting Nordvik's rule that a Rule 161
motion for reconsideration can reset the appeal period, still we must
_________________________________________________________________
1 SMA does not contend that it filed a motion to vacate under Rule 162,
but does suggest that we should measure the time available to file its
Rule 161 motion for reconsideration from the date the tax court entered
its decision, namely March 13, 1997. See Reply Brief of Appellant at 4-
5. In contrast to Rule 161, Rule 162 states that a motion to vacate or
revise a decision "shall be filed within 30 days after the decision has
been entered." Tax Ct. R. 162 (emphasis added). Although the tax court
filed its written opinion on March 12, it filed the decision on March 13.
Thirty days from March 13 would have been April 12. However, April
12, 1997, was a Saturday. Pursuant to Rule 25(a)(2)(B), if the last day
of a period is a Saturday or Sunday the period shall run to the end of the
next day that is not a Saturday or Sunday. Tax Ct. R. 25(a) (explaining
computation of time periods). Thus, the period to file a motion to vacate
or revise under Rule 162 ran until the end of the day on Monday April
14, 1997. As noted in the text, however, SMA did not file a motion to
vacate under Rule 162.

                   5
measure the timeliness of the Rule 161 motion according to the terms
of Rule 161, not Rule 162. Cf. Hull v. United States, ___ F.3d ___,
No. 97-1931, 1998 WL 293943, at *3 (4th Cir. June 8, 1998) (in tax
cases involving the application of a limitations period, the law is tech-
nical and the task of an appellate court is to interpret and apply the
law in that manner). The motion for reconsideration therefore was
untimely and did not restart the period in which to file a notice of
appeal.

Second, SMA contends that each of its motions are deemed filed
on the day it purportedly mailed them, citing § 7502(a) as authority.
Section 7502 provides that "[i]f any . . . document required to be filed
. . . within a prescribed period or on or before a prescribed date under
authority of any provision of the internal revenue laws is, after such
period or such date, delivered by the United States mail . . . the date
of the United States postmark stamped on the cover in which such . . .
document . . . is mailed shall be deemed to be the date of delivery"
and thus the date of filing. 26 U.S.C.A. § 7502(a)(1).

However, caselaw mandates that clearly adequate proof of mailing
must exist to obtain the benefit of the "filed-when-mailed" rule.
Indeed, the Second and Sixth Circuits hold that under § 7502 actual
delivery of the envelope with the postmark, or a receipt for registered
or certified mail, constitute the only satisfactory forms of proof. No
other extrinsic evidence of mailing can be considered. See Carroll v.
Commissioner, 71 F.3d 1228, 1232-33 (6th Cir. 1995); Washton v.
United States, 13 F.3d 49, 50 (2d Cir. 1993) (per curiam).

By contrast, the Eighth and Ninth Circuits allow extrinsic evidence
to demonstrate a document has been mailed, but this evidence must
constitute direct proof of mailing. See Anderson v. United States, 966
F.2d 487, 489-91 (9th Cir. 1992); Estate of Wood v. Commissioner,
909 F.2d 1155, 1159-61 (8th Cir. 1990). In Wood , the Eighth Circuit
stressed the narrowness of its holding, declaring that "only direct
proof of postmark, which proof will be extraordinarily rare outside
the instances specified in the statute" will suffice. Wood, 909 F.2d at
1161 (testimony of postal clerk who postmarked the envelope). Simi-
larly, in Anderson the court required "direct proof of a timely post-
mark." Anderson, 966 F.2d at 491 (testimony from one who viewed
postal clerk mark the envelope).

                     6
With a single exception,2 the only evidence of mailing found in the
joint appendix or proffered by SMA is the dates that SMA itself listed
on its motions. Assuming that we would adopt the more lenient rule
of the Eighth and Ninth Circuits, SMA's reference to the dates it
listed on its motions hardly constitutes direct proof sufficient to deem
the documents filed on those dates. SMA's argument therefore fails
at each point that it relies on the "filed-when-mailed" rule to extend
its time to file a motion. The motions must be deemed filed on the
date received -- i.e., the date listed in the tax court docket -- not
when SMA asserts, but does not prove, it mailed them.

Third, SMA contends that, pursuant to Tax Court Rules 41(d) and
50, its separate amended motions for extension of time filed on April
23 relate back to its original unified motion for extension of time
allegedly filed on April 10. However, as the Commissioner points out,
the relation back provision of Rule 41(d) pertains to amended and
supplemental pleadings only. Rule 50 speaks only to general require-
ments for motions, and distinguishes between motions and pleadings.
See Tax Ct. R. 41(d) and 50; see also Tax Ct. R. 30 (stating that
pleadings include the petition, the answer, and the reply, unless the
court otherwise allows). No rule states that a party can file an
amended motion that relates back to an earlier motion for timing pur-
poses.

Fourth, a central element of SMA's argument is that the motions
to extend -- i.e., the amended motions as related back to the original
motion -- tolled the 30-day period available to SMA to file an actual
motion for reconsideration until the tax court disposed of the motions
to extend. SMA cites no support for this proposition, and we have
found none. Perhaps this is because the proposition makes little sense.
If filing a motion to extend the 30-day period automatically tolled the
running of the period until the court ruled on the motion to extend,
regardless of the court's ruling, the court would in large measure lose
the power to grant or deny an extension. If the court denies the motion
_________________________________________________________________
2 That exception is the Commissioner's agreement that the notice of
appeal was deemed filed on August 15, 1997, because, although it was
actually filed on August 20, it arrived in an envelope bearing a postmark
dated August 15.

                    7
to extend, the 30-day period under Rule 161 or Rule 162 must expire
on the natural date of expiration.

Finally, SMA asserts that, notwithstanding the tax court's earlier
explicit denial of the motions for extension of time, the court's order
denying the motion for reconsideration constitutes a denial on the
merits that restarted the period to file an appeal. When the tax court
grants leave to file an untimely motion for reconsideration and evalu-
ates the merits of the motion for reconsideration, the time for appeal
runs from the decision on the motion for reconsideration. See
Manchester Group v. Commissioner, 113 F.3d 1087, 1088 (9th Cir.
1997); Nordvik, 67 F.3d at 1492. However, simply filing a motion for
extension of time to file the motion for reconsideration does not
restart the time for appeal where the tax court denies the motion for
extension and refuses to consider the merits of the motion for recon-
sideration. See Haley v. Commissioner, 805 F. Supp. 834, 836 (E.D.
Cal. 1992) ("To expand [Rule 13(a)] to cover motions for leave to file
motions to vacate or revise out of time would be to render the timeli-
ness requirement [of Rule 13(a)] superfluous. . . . Unlike the filing of
a timely motion to vacate or revise, the filing of[a] motion for leave
to file out of time would not affect the time for appeal unless the Tax
Court granted the motion and considered the merits of the motion to
vacate or revise."), aff'd, 5 F.3d 536 (9th Cir. 1993) (unpublished
memorandum opinion).

The tax court's May 21 order denying reconsideration did not
explain its rationale in express terms, but it seems quite evident that
the court did not reach the merits of the motion. The tax court explic-
itly denied SMA's motions for extension of time on May 13. Unde-
terred by the court's order, SMA filed an untimely motion for
reconsideration on May 20. The court summarily denied the motion
for reconsideration the very next day, May 21. In our view, the court
did so for a very simple reason, namely housekeeping: it had already
denied the motions for extension of time and, therefore, the motion
for reconsideration was untimely. Any other conclusion would evis-
cerate the court's earlier explicit denial of the motions for extension
of time and reward SMA for ignoring the court's order. Indeed, SMA
implicitly acknowledges that the tax court did not reach the merits of
the motion for reconsideration in its Reply Brief. See Reply Brief of
Appellant at 10 ("The Motion for Reconsideration could and should

                    8
have been granted, and the Court should have reached the merits of
the tax issues.") (emphasis added).

II.

We turn now to SMA's appeal from the tax court's denial of its
motion for reconsideration. Although, as demonstrated above, that
motion was not timely filed, SMA did appeal its denial in a timely
fashion. We will not disturb the tax court's denial of the motion for
reconsideration absent extraordinary circumstances giving rise to
abuse of discretion by the tax court. See Devore v. Commissioner, 963
F.2d 280, 282 (9th Cir. 1992); George v. Commissioner, 844 F.2d
225, 229-30 (5th Cir. 1988); LaBow v. Commissioner, 763 F.2d 125,
129-30 (2d Cir. 1985); Estate of Frieders v. Commissioner, 687 F.2d
224, 228 (7th Cir. 1982).

SMA has neither alleged nor demonstrated any extraordinary cir-
cumstances. At the outset, we note that the mere untimeliness of
SMA's motion supports the court's denial. See Miksis v. Howard, 106
F.3d 754, 759 (7th Cir. 1997) ("The district court acted well within
its discretion when it denied defendants' untimely motion for a medi-
cal examination."); Ayala-Gerena v. Bristol Myers Squibb Co., 95
F.3d 86, 94 (1st Cir. 1996) (district court did not abuse discretion
when it denied untimely motion to compel discovery); United States
v. Humphreys, 982 F.2d 254, 260 (8th Cir. 1992) ("An untimely
motion may be denied at the lower court's discretion."); BASF Wyna-
dotte Corp. v. Commissioner, 532 F.2d 530, 539 (6th Cir. 1976) (tax
court did not abuse its discretion when it denied both a motion for
extension of time to file a motion for further trial and the untimely
motion for further trial). SMA has offered no acceptable explanation
for its tardiness. Compare LaBow, 763 F.2d at 129-30 (denial of
untimely motion for reconsideration constituted abuse of discretion
where pro se litigant made good faith effort to comply, compiled
lengthy motion while embroiled in other pro se litigation, and motion
included new evidence likely to change opinion of the court), with
Estate of Frieders, 687 F.2d at 228 (denial of leave to file untimely
motion to vacate or revise not an abuse of discretion where "[t]here
was no excuse given for the delay").

Furthermore, the legal theory SMA now asserts clearly could have
been raised before the tax court during trial. As SMA itself stated in

                    9
the motion for reconsideration, there were "sufficient facts in the
record" for the court to address SMA's current theory. Cf. George,
844 F.2d at 230 (tax court did not abuse discretion in denying motion
for reconsideration where taxpayer had no excuse for failing to pro-
duce evidence earlier in the case). SMA attempts to argue that the tax
court did consider its current theory, see Reply Brief of Appellant at
2-3, but its motion for reconsideration makes clear that SMA did not
raise that theory during trial. On the first page of the motion, SMA
explicitly maintained that "[t]he parties tried this case on the issue of
whether [SMA] was required to recognize a foreign currency
exchange transaction gain based upon the duty of consistency. The
proper issue before the Court should be whether a taxable event
occurred in 1990 . . . ." J.A. 62. Indeed, the tax court ended its opinion
by stating "[SMA] failed to present any evidence at trial or any other
argument at trial or on brief contesting the correctness of the adjust-
ments." (Emphasis added).

III.

In sum, we conclude that SMA did not timely file its motion for
reconsideration of the tax court's opinion. Because this motion was
not timely filed, the appeal period did not restart pursuant to the pro-
visions of Fed. R. App. P. 13(a). Consequently, SMA did not timely
file its notice of appeal from the tax court's decision and we lack
jurisdiction to consider an appeal from that decision. Further,
although the notice of appeal from the court's order denying the
motion for reconsideration was timely filed, we conclude the tax court
did not abuse its discretion in denying the motion because the motion
was untimely and SMA has not demonstrated any extraordinary cir-
cumstances warranting reversal.

For the foregoing reasons, we dismiss the appeal from the tax
court's March 13, 1997, decision and affirm the tax court's May 21,
1997, denial of the motion for reconsideration.

AFFIRMED IN PART; DISMISSED IN PART

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