* Pursuant to 5 TH C IR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5 TH C IR

. R. 47.5.4.

### IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 07-60804 Summary Calendar

FRED SEBASTIAN, III Petitioner - Appellant v. COMMISSIONER OF INTERNAL REVENUE Respondent - Appellee

Appeal from the United States Tax Court

Docket No. 3958-06L
Before JOLLY, BENAVIDES, and HAYNES, Circuit Judges.. PER CURIAM: * Fred Sebastian, III, pro se , appeals the Tax Court’s order denying his motion tovacate the Tax Court’s order dismissing his case. For the reasons that follow, we AFFIRM. I. The Internal Revenue Service issued a notice of determination to Sebastian on January 4, 2006, informing him that it proposed to collect by levy his unpaid federal income tax for 2002. The notice informed Sebastian that he United States Court of Appeals

Fifth Circuit 

### F I L E D October 31, 2008 Charles R. Fulbruge III ClerkNo. 07-60804

2 had 30 days to file a petition in the Tax Court to challenge the determination. The notice also provided mailing and internet addresses from which Sebastian could obtain a petition form and the rules for filing a petition in the Tax Court. On February 2, 2006, within the 30-day period, Sebastian mailed a letter to the Tax Court in which he stated that he had received the notice of determination, believed that the “hearing was unfair and biased,” was “confused” and “unsure ofwhat todo from here,” and wanted the Tax Court to “advisewhat my next steps are.” He did not attach the notice of determination or include the filing fee. The Tax Court treated Sebastian’s letter as an imperfec t petition. On February 26, 2006, the Tax Court ordered Sebastian to file a proper amended petition by April 13, 2006, and to either pay the filing fee or apply for a waiver of the fee. The court attached to the order a form for the amended petition and provided Sebastian with information on how to apply for a waiver of the filing fee. The court warned Sebastian that, if he failed to comply, the court might dismiss the case. Sebastian did not comply. On May 30, 2006, the Tax Court dismissed his petition for lack of jurisdiction. The deadlinefor Sebastian toappeal the order ofdismissal wasAugust 28, 2006. On August 31, 2006, the Tax Court received from Sebastian a motion for leave to file a motion to vacate the May 30, 2006 order ofdismissal (“motion for leave”). Attached to the motion for leave were a motion to vacate the order, a proposed amended petition, and the filing fee. On November 9, 2006, theTax Court ordered the Commissioner to respond to Sebastian’s motion for leave. It also scheduled a hearing on Sebastian’s motions. In his response, the Commissioner argued that the Tax Court did not havejurisdiction toconsider a motion tovacate filed more than 90daysafter the order ofdismissal and that, unlessSebastian could demonstrate that the motion was mailed on or before August 28, 2006 (90 days from the order of dismissal),No. 07-60804

1 Sebastian filed the appeal in the Ninth Circuit. The Ninth Circuit transferred the appeal to this court in October 2007. On February 4, 2008, this court dismissed the appeal for 3 the Tax Court lackedjurisdiction toconsider it. On December 27, 2006, the Tax Court entered an order in w hich it reminded Sebastian that his motion was scheduled for a hearing and ordered him tobe prepared to present at the hearing any evidence that he wanted the court to consider in ruling on his motions. The hearing wasconducted on January 22, 2007. Sebastian did not attend the hearing. In a ruling from the bench, the Tax Court held that because Sebastian did not file his motion to vacate within 30 days of the decision, as required by Tax Court Rule 162, he needed leave of court to file it. The court explained that, where a motion for leave to file a late motion to vacate is filed after the decision has become final (after the 90-day period for filing an appeal expires), the court lacks jurisdiction to consider a motion to vacate. Because Sebastian’s motion for leave to file the motion to vacate was received by the court three days after the deadline for filing an appeal, the court held that it could consider the motion only if it could be shown that it had a timely postmark. Because the envelope containing the motion for leave and motion to vacate had an illegible postmark and Sebastian pro vided no evidence that the motion was mailed before the 90-day appeal period expired, the Tax Court concluded that the motion for leave was filed after the order had become final and, consequently, the court lacked jurisdiction to consider the motion. On January 30, 2007, more than a week after the hearing, the Tax Court received two documents from Sebastian in which he contended that the motion for leave and motion tovacate had been mailed to the court on August 25, 2006. He referred to several exhibits, but none were attached. The Tax Court entered an order denying Sebastian’s motion for leave on February 8, 2007. On May 7, 2007, within 90 days of the entry of the order denying the motion for leave, Sebastian filed a notice of appeal. 1No. 07-60804

want ofprosecution because Sebastian failed to timely pay the docketing fee. The appeal was reinstated in April. 4 II. Sebastian argues that his motion for leave to file a motion to vacate the order dismissing his petition was mailed within 90 days ofentry of the order of dismissal and, therefore, the Tax Court erred by denying leave tofile the motion to vacate. We review the Tax Court’s conclusions of law de novo, its findings offact for clear error, and its discretionary rulings for abuse of discretion. Bilski v. Commissioner, 69 F.3d 64, 67 (5th Cir. 1995). Whether the Tax Court had jurisdiction to consider Sebastian’s motion for leave to file a motion tovacate is a question of law. Harbold v. Commissioner, 51 F.3d 618, 621 (6th Cir. 1995). “Review ofa decision of the Tax Court shall be obtained by filing a notice ofappeal with the clerk ofthe Tax Court within 90days after the decision ofthe Tax Court is entered.” 26 U.S.C. § 7483; see also F ED

. R. A PP

. P. 13(a)(1). “If, under Tax Court rules, a party makes a timely motion to vacate or revise the Tax Court’s decision, the time tofile a notice ofappeal runs from the entry ofthe order disposing of the motion or from the entry of a new decision, whichever is later.” F E D

. R. A PP

. P. 13(a)(2). A decision of the Tax Court becomes final if a notice of appeal is not filed within the time allowed by the statute. 26 U.S.C. § 7481(a)(1). Tax Court Rule 162 provides that a motion to vacate a decision “shall be filed within 30 days after the decision has been entered, unless the Court shall otherwise permit.” “A motion to vacate made after thirty days may nevertheless be considered if a party files a motion for leave to file a motion to vacate before the ninety daystoappeal have passed.” Manchester Group v. Commissioner, 113 F.3d 1087, 1088 (9th Cir. 1997). Once the 90-day period for filing a notice of appeal expires, the decision of the Tax Court becomes final, and the Tax CourtNo. 07-60804

5 thereafter lacks jurisdiction to grant a motion to vacate in the absence of circumstances not present in this case. See Davenport Re cycling Associates v. Commissioner, 220 F.3d 1255, 1259 (11th Cir. 2000); Nordvik v. Commissioner, 67 F.3d 1489, 1491 (9th Cir. 1995); see also Cinema ‘84 v. Commissioner, 412 F.3d 366, 371 (2d Cir. 2005) (citing cases that have recognized limited exceptions tothe rule that theTax Court does not havejurisdiction tovacate a decision that has become final). “There is no statute that allows the Tax Court to reopen a final decision.” H arbold, 51 F.3d at 621. Accordingly, the language in Rule 162 allowing the Tax Court to extend the 30-day period for filing a motion tovacate “can be read to apply only to that time period between the 30th and 90th days after a decision.” Webbe v. Commissioner, 902 F.2d 688, 689 (8th Cir. 1990). Section 7502(a) of the Internal Revenue Code provides that, if any document which must be filed within a prescribed period is after that period delivered by United States mail tothe officewhere it is to be filed, then “the date ofthe United States postmark stamped on the cover in which such

. . . document

. . . is mailed shall be deemed to be the date of delivery.” 26 U.S.C. § 7502(a). The timely mailing provisions of § 7502 apply to a motion for leave to file a motion to vacate that is filed beyond the 30-day period provided in Rule 162. Manchester Group, 113 F.3d at 1089. III. In the light of the foregoing authorities, this court has jurisdiction to review the Tax Court’s order denying Sebastian’s motion for leave to file the motion tovacate, because hefiled a timely notice ofappeal within 90daysofthat order. See F ED

. R. A PP

. P. 13(a)(1). We do not have jurisdiction, however, to review the May 30, 2006 order dismissing Sebastian’s imperfec t petition for
re view, because a motion to vacate filed more than 30 days after the decision only stays the time for an appeal ifthe Tax Court grants leave for the late filing. Manchester Group, 113 F.3d at 1088. The Tax Court did not grant leave for theNo. 07-60804

6 late filing in this case, because it held that it lacked jurisdiction to consider the motion for leave inasmuch as therewas noevidence that the motion was mailed to the Tax Court within 90 days after entry of the order of dismissal. The Tax Court did not err. Sebastian’s motion for leave was received by the Tax Court more than 90 days after entry of the order of dismissal. The postmark on the envelope is illegible. The Tax Court scheduled a hearing and ordered Sebastian to present at the hearing any evidence that he wished the court to consider. Sebastian did not attend the hearing and did not present any evidence that he mailed the motion before the 90-day period for appeal expired and the order of dismissal became final. Accordingly, the Tax Court correctly held that it did not have jurisdiction to consider the motion. Sebastian contends that this court should reverse the Tax Court because he can prove that the motion for leave to file a motion to vacate was mailed before the Tax Court’s order of dismissal became final. His record excerpts contai n copies of receipts for certified mail and a United States Postal Service money order, both ofwhich are dated August 25, 2006. We cannot consider this evidence, because it was not presented to the Tax Court. See Habeeb v. Commissioner, 559 F.2d 435, 437 (5th Cir. 1977). In any event, as the IRS points out, the certified mail receipt presented by Sebastian for the first time on appeal bears no postmark. IV. The Tax Court properly denied Sebastian’s motion for leave to file a late motion to vacate because Sebastian failed to demonstrate that the motion had been mailed within 90 days ofentry of the order ofdismissal. The judgment of the Tax Court is therefore AFFIRMED.