T.C. Memo. 2006-237

UNITED STATES TAX COURT

JASON GOLDITCH, Petitioner v.

COMMISSIONER OF INTERNAL REVENUE, Respondent

Docket No. 11944-05L. Filed November 2, 2006. 

Jason Golditch, 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

Watsonville, California.
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1 Unless otherwise indicated, 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. 

Background

On May 23, 2005, respondent mailed to petitioner a Notice of

Determination Concerning Collection Actions(s) Under Section 6320

and/or 6330 (notice of determination) regarding his unpaid

Federal income tax for 2001.1 Respondent’s Office of Appeals

determined that it was appropriate to collect petitioner’s unpaid

taxes by levy. On June 20, 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 _2001__. 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
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2 Both documents were signed and dated Apr. 26, 2006, and

the envelope in which these documents were sent bears a postmark

of Apr. 26, 2006.

you please advise what my next steps are and if there

is public council 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. Nevertheless,

on June 27, 2005, the Court filed the document as an imperfect

petition regarding respondent’s notice of determination. By

order dated June 30, 2005, the Court directed petitioner to file

a proper amended petition on or before August 15, 2005. The

order stated that if an amended petition was not received on or

before August 15, 2005, the case would be dismissed. By order

dated September 13, 2005, the Court extended the time for

petitioner to file an amended petition until October 3, 2005. 

Petitioner failed to comply with the Court’s orders to file an

amended petition. On December 21, 2005, the Court entered an

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

On April 26, 2006, 126 days after the Court entered its

order of dismissal, petitioner mailed to the Court two documents

entitled “Motion for Leave to File Motion to Vacate Order of

Dismissal for Lack of Jurisdiction” and “Motion to Vacate Order

of Dismissal for Lack of Jurisdiction” (motion to vacate).2
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Petitioner’s motion for leave and motion to vacate state in

relevant part:

MOTION FOR LEAVE 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, with

Docket No. 11944-05L. 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 Motion to Remand and

Designation of Place of Trial concurrently with this

motion. 

Petitioner submitted an amended petition concurrently with the

motion for leave and the motion to vacate. On June 1, 2006, the

Court filed petitioner’s motion for leave and lodged the motion

to vacate and the amended petition.

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). 
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On December 21, 2005, 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). 

In order for us to consider the substantive merits of

petitioner’s motion for leave, we must still have jurisdiction. 

Stewart v. Commissioner, supra at ___ (slip op. at 6). 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 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
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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.

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

Court shall otherwise permit.” (Emphasis added.) Petitioner did

not file a motion to vacate or revise within 30 days after the
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Court’s order of dismissal was entered. Therefore, in order for

his 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). 

If a motion for leave to file a motion to vacate is filed

before the order of dismissal for lack of jurisdiction becomes

final and 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). Petitioner’s motion for leave to file a motion

to vacate would not extend the time for appeal unless the Court

granted the motion for leave and considered the merits of the

motion to vacate. Nordvik v. Commissioner, supra at 1492;

Stewart v. Commissioner, supra at ___ (slip op. at 15-16). But

in order to grant the motion for leave, the motion for leave must

be filed before the order of dismissal for lack of jurisdiction

has become final. This is because the Court is without

jurisdiction to act on the motion for leave once the order of
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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). 

dismissal for lack of jurisdiction becomes final. Stewart v.

Commissioner, supra at ___ (slip op. at 6-8); see Haley v.

Commissioner, 805 F. Supp. 834, 836 (E.D. Cal. 1992), affd.

without published opinion 5 F.3d 536 (9th Cir. 1993).5 If the

Court does not have jurisdiction to grant the motion for leave,

then the motion to vacate could not be filed. Nordvik v.

Commissioner, supra at 1492; Stewart v. Commissioner, supra at

___ (slip op. at 15). 

The Court entered the order of dismissal on December 21,

2005, and petitioner did not file a notice of appeal within the

time prescribed by section 7483. Had petitioner mailed his

motion for leave in an envelope postmarked on or before March 21,

2006, we would have had jurisdiction to consider whether to grant

his motion for leave and allow petitioner to file his motion to

vacate. See Stewart v. Commissioner, supra. However, petitioner

did not mail the motion for leave until April 26, 2006, 126 days

after the Court entered the order of dismissal. The motion for

leave was mailed and filed well after the period for appeal

expired and the order of dismissal for lack of jurisdiction had

become final. Therefore, we lack jurisdiction to consider
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petitioner’s motion for leave. It follows that the Court’s order

of dismissal for lack of jurisdiction in this case became final

on March 21, 2006, 90 days after our order of dismissal for lack

of jurisdiction was entered and cannot be vacated. 

An appropriate order will

be issued.