                         T.C. Memo. 1997-170



                       UNITED STATES TAX COURT



      ESMAT A. ZAKLAMA AND SYLVIA ZAKLAMA, Petitioners v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent



    Docket No. 7455-93.                          Filed April 7, 1997.


         In 1993, R issued a notice of deficiency for Ps'
    1989 taxable year. Ps subsequently filed for
    bankruptcy, and, while the automatic stay of 11 U.S.C.
    sec. 362(a) was in effect, Ps petitioned this Court, to
    redetermine the amounts in the notice of deficiency.
    On July 22, 1993, the Court dismissed Ps' case for lack
    of jurisdiction due to the automatic stay. On
    March 21, 1995, the bankruptcy court annulled the
    automatic stay stating that the bankruptcy filing and
    the automatic stay were void ab initio. On May 7,
    1996, Ps moved this Court for leave to file a motion to
    vacate our order of dismissal.
         Held: Petitioners' motion for leave will be
    denied.



     Herbert L. Zuckerman, Robert J. Alter, and

Richard J. Sapinski,    for petitioners.
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     Steven W. Ianacone and Peter K. Reilly, for respondent.



                        MEMORANDUM OPINION

     LARO, Judge:    Esmat A. and Sylvia Zaklama move the Court to

grant leave to file a motion to vacate our order dismissing their

case for lack of jurisdiction.    The motion for leave will be

denied.   Unless otherwise noted, section references are to the

Internal Revenue Code applicable to the year in issue, and Rule

references are to the Tax Court Rules of Practice and Procedure.

                            Background

     Respondent determined a $101,628 deficiency in petitioners'

1989 Federal income tax and a $20,326 penalty under section 6662.

On January 26, 1993, respondent issued petitioners a notice of

deficiency reflecting these amounts.      On April 14, 1993,

petitioners, while residing in Jersey City, New Jersey,

petitioned the Court to redetermine the amounts shown in the

notice of deficiency.

     Respondent moved to dismiss petitioners' case for lack of

jurisdiction.   Respondent asserted that petitioners had filed for

bankruptcy on April 5, 1993, and that the automatic stay

provisions of 11 U.S.C. sec. 362(a)(8) (1988) were effective when

petitioners petitioned this Court.       On July 22, 1993, we granted

respondent's motion and entered a decision that we lacked

jurisdiction.
                                 - 3 -


     On March 21, 1995, the bankruptcy court annulled

petitioners' petition to that court, stating that both the

petition and the automatic stay were void ab initio.    The

bankruptcy court stated that "the filing of a petition with the

United States Tax Court on April 14, 1993, is not in violation of

the automatic stay as a result of the annulment of the automatic

[stay] effected by this order."

     On May 7, 1996, petitioners filed with this Court the motion

at hand.   Petitioners alleged that the bankruptcy court's order

"nullifies the bankruptcy application and restore [sic] the Tax

Court jurisdiction."   Petitioners alleged that their petition to

this Court was timely and requested that we reinstate their case.

                            Discussion

     Petitioners desire to file a motion to vacate the decision

of this Court dismissing their case for lack of jurisdiction.

Rule 162 provides that such a motion must be filed within 30 days

after the decision is entered, unless the Court allows otherwise.

Because petitioners failed to make such a motion within this

30-day period, petitioners must request leave from the Court to

file their motion out of time.    Whether to grant petitioners'

motion for an untimely filing is within the sound discretion of

this Court.   Heim v. Commissioner, 872 F.2d 245, 246 (8th Cir.

1989), affg. T.C. Memo. 1987-1.
                               - 4 -


     Petitioners did not file a notice of appeal or a timely

motion to vacate or revise our decision which was entered on

July 22, 1993.   Accordingly, our decision became final on

October 20, 1993.   See secs. 7459(c), 7481(a)(1).   Once a

decision becomes final, our jurisdiction to vacate it is

restricted.   Abatti v. Commissioner, 859 F.2d 115, 117 (9th Cir.

1988), affg. 86 T.C. 1319 (1986); Lasky v. Commissioner, 235 F.2d

97, 100 (9th Cir. 1957), affg. 22 T.C. 13 (1954).    We shall

vacate a final decision only in certain limited cases.    For

example, this Court and some Courts of Appeals have ruled that we

may vacate a final decision if it is shown to be void, or a legal

nullity, for lack of jurisdiction over either the subject matter

or the party, see Billingsley v. Commissioner, 868 F.2d 1081,

1084-1085 (9th Cir. 1989); Abeles v. Commissioner, 90 T.C. 103,

105-106 (1988); Brannon's of Shawnee, Inc. v. Commissioner, 69

T.C. 999, 1002 (1978), or if it was obtained through fraud on the

Court, see Abatti v. Commissioner, supra; Senate Realty Corp. v.

Commissioner, 511 F.2d 929, 931 n.1 (2d Cir. 1975); Stickler v.

Commissioner, 464 F.2d 368, 370 (3d Cir. 1972); Casey v.

Commissioner, T.C. Memo. 1992-672.     The Court of Appeals for the

Fifth Circuit also has indicated that we have the power to vacate

a final decision which is based on a mutual mistake of fact.

See La Floridienne J. Buttgenbach & Co. v. Commissioner, 63 F.2d
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630 (5th Cir. 1933).   But cf. Harbold v. Commissioner, 51 F.3d

618, 621-622 (6th Cir. 1995).

      Petitioners do not allege that the decision is the result of

a mutual mistake or fraud on the Court, or that the Court's order

dismissing their case for lack of jurisdiction was erroneous when

entered.   As we understand petitioners' argument, we now have

jurisdiction over their case because the bankruptcy court said we

do.   Whether petitioners are correct that the bankruptcy court

can bestow jurisdiction on this Court retrospectively by voiding

an automatic stay ab initio we need not decide.   Petitioners

failed to move this Court timely, and they have failed to set

forth any good reason why they did not.   Petitioners have failed

to persuade us that we should file their motion to vacate at this

late time.

      Petitioners have had a number of opportunities to maintain

their case before this Court.   For example, they could have moved

the bankruptcy court for permission to petition this Court during

the period that would otherwise be covered by the automatic stay.

Likewise, they could have petitioned this Court after the

automatic stay was lifted on March 21, 1995.   When an automatic

stay is in effect, section 6213(f) suspends the 90-day period in

which a taxpayer must petition the Court, see sec. 6213(a), and

gives the taxpayer at least 60 days in which to petition this

Court following the lifting of the automatic stay.
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Zimmerman v. Commissioner, 105 T.C. 220 (1995).       Petitioners have

not explained why they did not avail themselves of any of these

opportunities.

     We will deny petitioners' motion to file their motion to

vacate out of time.   In so doing, we have considered all of

petitioners' arguments for a contrary result, and, to the extent

not addressed above, have found them to be without merit or

irrelevant.

     To reflect the foregoing,

                                              An appropriate order

                                         will be issued.
