* Pursuant to 5TH CIR. 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 5TH CIR.

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 to vacate 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

Clerk
No. 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 of what to do from here,” and wanted the Tax Court to “advise what

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 imperfect 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 deadline for Sebastian to appealthe order of dismissal was August 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 of dismissal (“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

have jurisdiction to consider a motion to vacate filed more than 90 days after the

order of dismissal and that, unless Sebastian could demonstrate thatthe 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 lacked jurisdiction to consider it. On December 27, 2006, the Tax

Court entered an order in which it reminded Sebastian that his motion was

scheduled for a hearing and ordered him to be prepared to present atthe hearing

any evidence that he wanted the court to consider in ruling on his motions. 

The hearing was conducted 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 provided 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 to vacate 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.1
No. 07-60804

want of prosecution 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 of entry of the order of

dismissal and,therefore, the Tax Court erred by denying leave to file the motion

to vacate.

We review the Tax Court’s conclusions of law de novo, its findings of fact

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 to vacate is

a question of law. Harbold v. Commissioner, 51 F.3d 618, 621 (6th Cir. 1995).

“Review 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 entered.” 26 U.S.C. § 7483; see also FED. R. APP. 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 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.” FED. R. APP. 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 days to appeal 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 Court
No. 07-60804

5

thereafter lacks jurisdiction to grant a motion to vacate in the absence of

circumstances not present in this case. See Davenport Recycling 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

to the rule thatthe Tax Court does not have jurisdiction to vacate a decision that

has become final). “There is no statute that allows the Tax Court to reopen a

final decision.” Harbold, 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 to vacate

“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 mailto the office where itis to be filed, then “the date

of the 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 to vacate, because he filed a timely notice of appeal within 90 days ofthat

order. See FED. R. APP. P. 13(a)(1). We do not have jurisdiction, however, to

review the May 30, 2006 order dismissing Sebastian’s imperfect petition for

review, because a motion to vacate filed more than 30 days after the decision

only stays the time for an appeal if the Tax Court grants leave for the late filing.

Manchester Group, 113 F.3d at 1088. The Tax Court did not grant leave for the
No. 07-60804

6

late filing in this case, because it held that it lacked jurisdiction to consider the

motion for leave inasmuch as there was no evidence 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

contain copies of receipts for certified mail and a United States Postal Service

money order, both of which 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 of entry of the order of dismissal. The judgment of

the Tax Court is therefore 

AFFIRMED.