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 1996-12

Christian v. Commissioner ( 1996 )


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  •                             UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 95-2282
GEORGE CHRISTIAN, SR.; LAURA CHRISTIAN,
Petitioners - Appellants,
versus
COMMISSIONER OF INTERNAL REVENUE,
Respondent - Appellee.
Appeal from the United States Tax Court.     (Tax Ct. No. 86-23453)
Submitted:   November 19, 1996            Decided:   December 2, 1996
Before MURNAGHAN and HAMILTON, Circuit Judges, and PHILLIPS, Senior
Circuit Judge.
Dismissed by unpublished per curiam opinion.
George Christian, Sr., Laura Christian, Appellants Pro Se. Gary R.
Allen, Richard Farber, Andrea R. Tebbets, UNITED STATES DEPARTMENT
OF JUSTICE, Washington, D.C., for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
George Christian, Sr., and Laura Christian appeal from the tax
court's order entered November 28, 1994. The Christians' notice of
appeal, filed on June 15, 1995, is untimely. Section 7483 of the
Internal Revenue Code provides that "[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 entered."
    26 U.S.C. § 7483
     (1994); see also Fed. R. App.
P. 13(a). The timely filing of a notice of appeal is jurisdiction-
al. Davies v. Commissioner,
    715 F.2d 435
    , 436 (9th Cir. 1983);
Robert Louis Stevenson Apartments, Inc. v. Commissioner,
    337 F.2d 681
     (8th Cir. 1964); Vibro Mfg. Co. v. Commissioner,
    312 F.2d 253
    ,
254 (2d Cir. 1963). The Christians' motions to vacate did not ex-
tend the time to appeal the tax court's decision. Although a timely
motion to vacate or revise a decision under Rule 13(a) tolls the
time period for noting an appeal, successive post-decision motions
may not be tacked together to perpetuate the prescribed time for
appeal. Okon v. Commissioner,
    26 F.3d 1025
    , 1026-27 (10th Cir.),
cert. denied, ___ U.S. ___,
    115 S. Ct. 583
     (1994); see Fed. R. App.
P. 13(a); Tax Ct. R. 162. Accordingly, we dismiss the appeal for
lack of jurisdiction. In light of this disposition, the Christians'
"Motion for Summary Judgment Review of Memorandum Sur order dated
2/17/88" is hereby denied. We dispense with oral argument because
the facts and legal contentions are adequately presented in the
2
materials before the court and argument would not aid the deci-
sional process.
DISMISSED
3