                         T.C. Memo. 2006-251



                       UNITED STATES TAX COURT



                   JAN MCMASTER, Petitioner v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 20992-05L.               Filed November 16, 2006.


     Jan McMaster, pro se.



                         MEMORANDUM OPINION


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

Motion for Leave to File Motion to Vacate Order of Dismissal for

Lack of Jurisdiction (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

Marana, Arizona.
                              - 2 -

                           Background

     On October 5, 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 taxes for 2001 and 2002.1   Respondent’s Office of

Appeals determined that it was appropriate to collect

petitioner’s unpaid taxes by levy.    On November 2, 2005,

petitioner sent to the Court a document, which states in relevant

part:

     Dear Tax Court,

     I received a notice of determination letter from the
     IRS for tax years 2001 and 2002. Their letter states I
     must file a petition with the United States Tax Court
     within 30 days from Oct. 5, 2005 if I want to dispute
     the determination. Please consider this as that
     petition and a protest.

     I was denied an in person due process hearing and
     though I asked several times none of my concerns or
     questions were answered by anyone at the IRS. It
     appeared as if I was writing to a computer that didn’t
     have the capacity to think or reason. The agent, if
     there really was one, was absolutely no help to me.
     They appear extremely uncooperative in even the most
     basic matters.

     I asked them to show me how I could owe taxes when I
     didn’t have a job and am on disability. I do not
     believe I owe them anything for any year.



     1
       Unless otherwise indicated, all section references are to
the Internal Revenue Code in effect for the years in issue, and
all Rule references are to the Tax Court Rules of Practice and
Procedure.
                                 - 3 -

     I am asking your help in this matter. I don’t know
     what my next step should be. I believe the IRS is
     wrong and I want to protest.

     Do I have to go to court over this?

     How do I get a public defender?

     Thank you for helping 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

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

imperfect petition regarding respondent’s notice of

determination.   By order dated November 10, 2005, the Court

directed petitioner to file a proper amended petition and to pay

the filing fee on or before December 27, 2005.       The order stated

that if an amended petition and the filing fee were not received

on or before December 27, 2005, the case would be dismissed.       By

order dated January 19, 2006, the Court extended the time for

petitioner to file a proper amended petition and to pay the

filing fee until February 9, 2006.       Petitioner paid the filing

fee but failed to timely respond to the Court’s orders to file an

amended petition.   On March 27, 2006, the Court entered an Order

of Dismissal for Lack of Jurisdiction (order of dismissal).

     On June 26, 2006, 91 days after the order of dismissal was

entered, petitioner mailed to the Court two documents entitled

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

for Lack of Jurisdiction” (motion for leave) and “Motion to

Vacate Order of Dismissal for Lack of Jurisdiction” (motion to

vacate).   The motions state in relevant part:

     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/s 2001 and
     2002, with Docket No. 20992-05 [sic]. PETITIONER also
     requests 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 [sic].
     PETITIONER will file Motion to Vacate Order of
     Dismissal for Lack of Jurisdiction concurrently with
     this Motion.

           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 with
     the Docket No. 20992-05L, for the Tax Years 2001 and
     2002. PETITIONER also request [sic] for the Court to
     determine the case lay [sic] out by the PETITIONER’s
     Amended Petition, which will be filed concurrently with
     this motion. PETITIONER will also file an Amended
     Petition and the Designation of Place of Trial
     concurrently with this motion.

     On July 3, 2006, 98 days after the order of dismissal was

entered, the Court filed the former document as a “Motion for

Leave to File Motion to Vacate Order of Dismissal for Lack of

Jurisdiction” (motion for leave).   Petitioner’s amended petition

was sent and received with the motion for leave and motion to

vacate.
                               - 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 March 27, 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.2

     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.”3

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



     2
       As previously explained, an order of dismissal for lack of
jurisdiction is treated as the Court’s decision.
     3
         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.4   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



     4
       June 25, 2006, the 90th day after the order of dismissal
for lack of jurisdiction was entered, fell on a Sunday. Although
that is the day that the Court’s order of dismissal would
normally become final, pursuant to sec. 7503 petitioner had until
June 26, 2006, the following Monday, to file a notice of appeal.
Stewart v. Commissioner, 127 T.C. ___,___ (2006) (slip op. at
13); see also Fed. R. App. P. 26(a)(3). Therefore, petitioner’s
motion for leave is deemed timely filed.
                               - 8 -

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.

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.



     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 -

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

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 November 10,

2005, order.    On January 19, 2006, the Court extended the time

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

fee until February 9, 2006.    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
                             - 10 -

of justice, we will deny petitioner’s motion for leave.6   It

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

jurisdiction in this case became final on June 26, 2006, 91 days

after the order of dismissal was entered.7

     To reflect the foregoing,

                                        An appropriate order will

                                   be issued.




     6
       See Rice v. Commissioner, T.C. Memo. 2006-236; Walther v.
Commissioner, T.C. Memo. 2006-247; Sprenger v. Commissioner, T.C.
Memo. 2006-248; and Hoffman v. Commissioner, T.C. Memo. 2006-249,
in each of 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.
     7
         See supra note 4.
