Clyde A. Miles v. Commissioner of Internal Revenue

105 F.3d 647

79 A.F.T.R.2d (RIA) 97-594, 97-1 USTC P 50,134

NOTICE: Fourth Circuit Local Rule 36(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Fourth Circuit.
Clyde A. MILES, Petitioner--Appellant,
v.
COMMISSIONER OF INTERNAL REVENUE, Respondent--Appellee.

No. 95-2444.

United States Court of Appeals, Fourth Circuit.

Submitted Dec. 17, 1996.
Decided Jan. 3, 1997.

Clyde A. Miles, Appellant Pro Se.

Gary R. Allen, Richard Farber, Andrea R. Tebbets, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellee.

U.S.T.C.

AFFIRMED IN PART, DISMISSED IN PART.

Before MURNAGHAN and HAMILTON, Circuit Judges, and PHILLIPS, Senior Circuit Judge.

PER CURIAM:

1

Clyde A. Miles appeals from the tax court's orders (1) entered September 21, 1992, dismissing his petition in tax court No. 88-5234 for lack of jurisdiction and (2) entered November 28, 1994, upholding the Commissioner's assessment of deficiencies and additions to tax with respect to his federal income tax liability for 1979-1982 (Tax Court No. 87-36499). Our review of the record and the tax court's order dismissing Miles' petition in No. 88-5234 reveals that the appeal of this decision is without merit. Accordingly, we affirm on the reasoning of the tax court. Miles v. Commissioner, No. 88-5234 (U.S.T.C. Sept. 21, 1992).

2

Miles' notice of appeal, filed on July 19, 1995, is untimely as to the tax court's order in No. 87-36499. 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 jurisdictional. 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). Miles' motions to vacate did not extend 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, 115 S. Ct. 583 (1994). See Fed. R.App. P. 13(a); Tax Ct. R. 162. Accordingly, we dismiss the appeal of the tax court's decision in No. 87-36499 for lack of jurisdiction. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.

AFFIRMED IN PART, DISMISSED IN PART