### IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 17

- 60255

ANNAMALAI ANNAMALAI; PARVATHI SIVA ANNAMALAI,

Petitioners

- Appellants

v. COMMISSIONER OF INTERNAL REVENUE,
Respondent

- Appellee

Appeal from a Decision of the United States Tax Court

Before JOLLY, DENNIS , and ELROD , Circuit Judges

. PER CURIAM: Before us today is a n appellate jurisdictional issue of first impression. Under Federal Rule of Appellate Procedure 13, the statutory 90

- day window to appeal a Tax Court de cision to our cour t ru ns from either: 1) the entry of the Tax Court decision being appealed or 2) if a party moves to vacate or revise the Tax Court’s decision, from the entry of the Tax Court’ s ruling on that motion to vacate or revise the decision

. The question before us is whether a party may file successive motions to vacate or revise with the effect of extending the time to appeal into perpetuity. We hold that successive motions to vacate or revise a Tax Court decision, raising substantially the same grounds as the fi rst motion , will not affect the time period in which a party may appeal a Tax C ourt United States Court of Appeals Fifth Circuit 

### FILED March 8, 2018 Lyle W. Cayce Clerk Case: 17-60255 Document: 00514378847 Page: 1 Date Filed: 03/08/2018No. 17

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2 decision. Where successive post

- decision motions are filed in the Tax Court , t he statutory 90

- day window to appeal the Tax Court decision runs from the Tax Court’s ruling on the first motion to vacate or revise filed. The notice of the instant appeal to this court , filed more than 90 days after the Tax Court disposed of the firs t motion to vacate, is untimely. T his appeal is dismissed for lack of appel late jurisdiction

. I. The facts relevant to the single issue we take up today are simple. The IRS Commission er determined that Appellants Annamalai Annamalai and Parvathi Siva Annamalai (“the Taxpayers”) were jointly liable for tax deficiencies of a sum certain and mailed a notice of deficiency to each of them

. Upset by that determination , the Taxpayers petitioned the Tax Court for a redetermination of their tax liability

. After nearly three years of litigation, t he Tax Court entered its final decis ion in the matter on June 23, 2016

. On July 13, 2016, t he T axpayers filed separate motions with the Tax Court to vacate it s June 23 decision . O n November 18, the Tax Court denied those motions. The Taxpayers’ next move is central to this appeal . Instead of filing a notice of appeal of the Tax Court’s decision with the Tax Court clerk , the Taxpayers , on December 12, jointly filed a second motion with the Tax Court to vacate the Tax Court ’s decision

. 1 That second motion , assuming without decidin g that it was timely, 2 did not raise any substantially new

1 The Taxpayers’ second motion was styled as both a motion to vacate the Tax Court’s decision a nd a motion to reconsider the Tax Court’s denial of their first motions to vacate

. B ecause Rule 13 applies to any “ motion to vacate or revise the Tax Court’s decision ” and , according to the docket, the Tax C ourt entered one decision on June 23, 2016, we construe the Taxpayers’ second motion as a motion to vacate the Tax Court ’s June 23 decision

. 2 The Taxpayers filed the ir second m otion within 30 days of the Tax C ourt’s denial of their first motions to vacate

. The C ommissioner argues that the second motion i s untimely because it was fil ed more than 30 days after the Tax C ourt’s decision

. See Tax Ct. R. 162 (“ Any motion to vacate o r 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 Court shall otherwise Case: 17-60255 Document: 00514378847 Page: 2 Date Filed: 03/08/2018No. 17

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3 gr ounds or arguments. After the Tax Court denied that second motion on December 22 , the Taxpayers filed a notice of appeal with the Tax Court clerk on March 15 , 2017

. That is, the Taxpayers appealed to this court 265 days after the Tax Court ’s initial decision, 117 days after the Tax C ourt ruled on their first motion s to vacate, and 83 days after the Tax C ourt ruled on their second joint motion to vacate. We decide to day whether the Taxpayer s ’ appeal of the Tax Court ’s decision is timely. 3
II. “[T]he taking of an appeal within the prescribed time is ‘mandatory and jurisdictional.’” Bowles v. Russell , 551 U.S. 205, 209 (2007) (quoting Grigg s v. Provident Consumer Disc. Co. , 459 U.S. 56, 61 (1982) ). The Supreme Court has cautioned that “a provision governing the time to appeal in a civil action qualifies as jurisdictional only if Congress sets the time.” Hamer v. Neighborhood Hous. Servs. of Chi. , 138 S. Ct. 13, 1 7 (2017). Here, there is a governing statute, 26 U.S.C. § 7483, which states, “ R eview of a decision of the Tax Court shall be obtained by filing a notice of appeal with the clerk of the Tax Court within 90 days after the decision of the Tax Court is enter ed.” This time period is also set by Federal Rule of Appellate Procedure 13(a)(1)(A) , under which a party may appeal a Tax Court decision “by filing a notice of appeal with the Tax Court clerk within 90 days after the entry of the Tax Court ’s decision.”
A lthough the 90

- day window is absolute , the point from which it runs is
not . “If, under Tax Court rules, a party makes a timely motion to vacate or

permit.”). But we need not resolve that argument and instead leave experienced Tax C ourts to d etermin e whether motions filed in the Tax C ourt are timely

. 3 In their Notice of Appeal, the Taxpayers say they are appealing the Tax C ourt’s “final judgment” and the denial of their second motion to vacate. But again, Rule 13 allows for the appeal as o f right of a Tax C ourt’s “decision,” an d according to the docket, the Tax C ourt entered one decision on June 23, 2016. Case: 17-60255 Document: 00514378847 Page: 3 Date Filed: 03/08/2018No. 17

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4 revise the Tax Court ’s decision, the time to file a notice of appeal runs from the entry of the order disp osing of the motion or from the entry of a new decision, whichever is later. ” Fed. R. App. P. 13(a)(1)(B). So in other words, the 90

- day clock restarts 4 when a timely motion to vacate or revise a Tax Court decision is ruled on. But the text of the rule and its advisory committee notes do not address whether the 90

- day clock can be reset more than once whe n a party files a subsequent motion to vacate, after the Tax Court has already ruled on the first such motion. 5 In this case, the Taxpayers’ appeal is timely only if the Tax Court ’s denial of the ir second motion to vacate once again restarted the
90

- day clock. The one Fifth Circuit case addressing this issue is of limited use here. See Streif fert v. Internal Revenue Serv. , 140 F. App’x 527, 528

– 29 (5th Cir. 2005) (addressing a successive untimely motion for reconsideration ). So we
turn to t he only case on point, coming to us from the Tenth Circuit. In Okon v. Commission er , a taxpayer filed a motion to vacate a Tax Court decision and , following its denial, filed a second motion asking the court “once more” to vacate. 26 F.3d 1025, 1026 (10th Cir.) , cert. denied , 513 U.S. 1019 (1994)

. The taxpayer then filed her notice of appeal within 90 days of th e denial of her

4 Previous courts use the term “toll” to describe the effect of filing a motion to vacate on the 90

- day clock. But “toll” is defined as “to stop the running of.” T OLL , Black’s Law Dictionary (10th ed. 2014). In other words, to hit the pause button. See Artis v. District of Colum bia , 138 S. Ct. 594, 601 (2018) (“Ordinarily, ‘tolled’

. . . means that the limitations period is suspended (stops running)

. . . then starts running again when the tolling period ends, picking up where it left off. ”). But here , the 90

- day clock restart s

. See Fed. R. App. P. 13 (“[T] he time to file a notice of appeal runs from the entry of the order disposing of the motion [to vacate] . . . .”); see also Streiffert v. I nternal Reven ue Serv. , 140 F. App’x 527, 528

– 29 (5th Cir. 200 5) ( calculating the 90

- day appeal period from the date the Tax C ourt ruled on the motion to vacate ) ; Okon , 26 F.3d at 1026 (same) . So we think it is more accurate to describe the time period to appeal as restarting instead of tolling.
5 The U.S. Tax Court rules do not directly address the appropriateness of successive motions to vacate. See Tax Ct. R. 162 (“ 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 Court shall otherwise permit.” (emphasis added)). Case: 17-60255 Document: 00514378847 Page: 4 Date Filed: 03/08/2018No. 17

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5 second motion to vacate, but well beyond 90 days from the court’s denial of her first motion to vacate

. Id. The Tenth Circuit held that the taxpayer’s second motion to vacate did not restart the 90

- day clock to appeal the Tax Court ’s
deci sion and thus her appeal was untimely. Id. at 10 26

– 27. In arriving at its holding, the court reiterated “the general principle that tolling motions may not be tacked together to perpetuate the prescribed time for appeal

. ” Id. at
1026. The court decline d to address the case where a taxpayer files a second motion to vacate on new grounds , but it noted that its precedent did “not suggest any such exception for litigants who parcel out objections over successive post

- trial motions.” Id. at 1027 n.2. Two o ther circuits have adopted the Tenth Circuit’s holding in unpublished decisions. See Dean v. Commissioner , No. 17

- 1123, 2017 WL 4232520, at *1 (D.C. Cir. Sept. 13, 2017) ; Robertson v. C ommissioner , 22 F. App’x 215 , 215 (4th Cir. 2001)

. 6 We find support for the Tenth Circuit’s holding in our approach to successive motions for reconsideration in the civil

- rules context. Analyzing Federal Rule of Civil Procedure 59, we held, “[W]here an appellant files a second motion to reconsider ‘based u pon substantially the same grounds as urged in the earlier motion,’ the filing of the second motion does not interrupt the running of the time for appeal, and the appeal must be dismissed.” Charles L.M. v. Ne. Indep. Sch. Dist. , 884 F.2d 869, 870 (5th Cir . 1989) (quoting Ellis v. Richardson , 471 F.2d 720, 721 (5th Cir. 1973)). We see no reason for a different rule in this appeal from the Tax Court . Thus, w e agree that a party should not, by virtue of successive motions raising substantially the same

grou nds, be able to extend the time to appeal a Tax Court decision into

6 The Ninth Circuit has also expressed “doubt that successive motions for post

- trial relief in the Tax Court can be tacked together to extend the time for filing a notice of a ppeal when they assert the same grounds.” Trohimovich v. Commissioner , 776 F.2d 873, 875 (9th Cir. 1985), abrogated on other grounds by Nordvik v. Commissioner , 67 F.3d 1489, 1493 (9th Cir. 1995). Case: 17-60255 Document: 00514378847 Page: 5 Date Filed: 03/08/2018No. 17

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6 perpetuity. 7 So for purposes of this case, the Taxpayers’ second motion to vacate, raising substantially the same grounds as the ir first, has no effect on their time period to appeal the Tax Court ’s decision . Because this appeal came
117 days after the Tax Court ruled on the Taxpayers’ first (separately filed) motions to vacate, it is untimely. 8
III. Thus, we hold that, w here 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 under 26 U.S.C. § 7483 and Rule 13(a)(1)

. B ecause the Taxpayers filed notice of app eal well beyond 90 days after the denial of their first motion to vacate, we lack appellate jurisdiction to review the Tax Court
decision at issue here. 9 Annamalai’s motion for an appeal c onference is denied

. This untimely appeal is DISMISSED.

7 “Were we to hold that appellant’s [second] motion for r econsideration . . . terminated the running of the time for filing notice of appeal, a party aggrieved by a judgment resting on several grounds could extend the time for appeal virtually indefinitely by filing successive motions for reconsideration challen ging each of the grounds seriatim.” Dixi e Sand & Gravel Co. v. Tenn. Valley Auth. , 631 F.2d 73, 75 (5th Cir. Unit B 1980) ; see also Owner

- Operator Indep. Drivers Ass’n, Inc. v. U.S. Dep’t of Transp. , 858 F.3d 980, 983 (5th Cir. 2017) (holding that the 60

- day period to file a petition for review was not tolled when the association filed a motion for reconsideration, and cautioning that “[o]therwise, parties could evade the time limit for judicial review by requesting reconsideration of long

- resolved matters ”).
8 What gives us pause, however, is whether an exception should be carved out for parties who move to vacate a second time on substantially different grounds. Indeed, in the civil context, we allow a second Rule 59 motion to “interrupt[] the time all owed for filing an appeal” where it “present[s] at least one completely different ground for relief from the judgment.” No bby Lobby, Inc. v. City of Dallas , 970 F.2d 82, 85 (5th Cir. 1992). But because such a situation is not presented by these facts, we need not address that issue.
9 “The time periods set by Rule 13(a)(1) and Section 7483 are absolute. Because these periods are set by st atute as well as by rule, cases . . . describing these time periods as jurisdictional would still appear to be good law.” 16A Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 3959 (4th ed. 2013 ). Case: 17-60255 Document: 00514378847 Page: 6 Date Filed: 03/08/2018