Miles v. Commissioner ( 1997 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 95-2444
CLYDE A. MILES,
Petitioner - Appellant,
versus
COMMISSIONER OF INTERNAL REVENUE,
Respondent - Appellee.
Appeal from the United States Tax Court. (Tax Ct. Nos. 87-36499,
88-5234)
Submitted: December 17, 1996 Decided: January 3, 1997
Before MURNAGHAN and HAMILTON, Circuit Judges, and PHILLIPS, Senior
Circuit Judge.
Affirmed in part and dismissed in part by unpublished per curiam
opinion.
Clyde A. Miles, Appellant 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Unpublished opinions are not binding precedent in this circuit.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:
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 addi-
tions 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. Accord-
ingly, we affirm on the reasoning of the tax court. Miles v.
Commissioner, No. 88-5234 (U.S.T.C. Sept. 21, 1992).
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 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). 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
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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 adequate-
ly presented in the materials before the court and argument would
not aid the decisional process.
AFFIRMED IN PART, DISMISSED IN PART
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