Christian v. Commissioner

• Court: Court of Appeals for the Fourth Circuit
• Decided: November 15, 1996
• Docket: 95-2461
• Status: Unpublished

Opinion

UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 95-2461

GEORGE CHRISTIAN, JR.; MARION E. CHRISTIAN,

Petitioners - Appellants,

versus

COMMISSIONER OF THE INTERNAL REVENUE SERVICE,

Respondent - Appellee.

Appeal from the United States Tax Court. (Tax Ct. No. 87-35390)

Submitted: October 31, 1996 Decided: November 15, 1996

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

Dismissed by unpublished per curiam opinion.

George Christian, Jr., Marion E. 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Unpublished opinions are not binding precedent in this circuit.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 and Marion Christian appeal from the tax court's order

entered November 28, 1994. The Christians' notice of appeal, filed

on July 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 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). The Christians' 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, ___ 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 juris-

diction. In light of this disposition, the thirteen pending motions

filed by the Christians are hereby denied. 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.

DISMISSED