Ward Dean, Appellant v. Commissioner of Internal Revenue Service, Appellee

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United States Court of Appeals, District of Columbia Circuit.

Ward Dean, Appellant v. Commissioner of Internal Revenue Service, Appellee

No. 17-1123

Decided: September 13, 2017

BEFORE: Kavanaugh, Pillard, and Wilkins, Circuit Judges

ORDER

Upon consideration of the motion for summary affirmance and the opposition thereto; and the motion to remand and the opposition thereto, it is

ORDERED that the motion to remand be denied and the motion for summary affirmance be granted. The merits of the parties' positions are so clear as to warrant summary action. See Taxpayers Watchdog, Inc. v. Stanley, 819 F.2d 294, 297 (D.C. Cir. 1987). Appellant filed his notice of appeal on April 24, 2017, and it is therefore untimely as to both the Tax Court's decision, filed on November 9, 2016, and the order, filed on January 6, 2017, denying appellant's first motion to vacate or revise. See 26 U.S.C. § 7483. Appellant's second motion to vacate or revise did not toll the appeals period because that motion was itself untimely, see Fed. R. App. P. 13(a)(1)(B); Tax Court Rule 162, and successive motions to vacate or revise “may not be tacked together to perpetuate the prescribed time for appeal,” Okon v. C.I.R., 26 F.3d 1025, 1026 (10th Cir. 1994); cf. American Sec. Bank, N.A. v. John Y. Harrison Realty, Inc., 670 F.2d 317, 320-21 (D.C. Cir. 1982) (subsequent motion to reconsider an order denying a Rule 59 motion, or other time-tolling motion, does not itself toll the running of the appeal period). This court therefore lacks subject matter jurisdiction to review the Tax Court's decision and its order denying the first motion to vacate or revise. See Bowles v. Russell, 551 U.S. 205, 209 (2007); Murray v. D.C., 52 F.3d 353, 356 (D.C. Cir. 1995).

The appellant did timely appeal the Tax Court's order denying his second motion to vacate or revise. The Tax Court did not abuse its discretion in denying this motion. See Ark Initiative v. Tidwell, 749 F.3d 1071, 1075 (D.C. Cir. 2014); see also Estate of Quirk v. C.I.R., 928 F.2d 751, 759 (6th Cir. 1991) (“The granting of a motion for reconsideration rests within the discretion of the Tax Court ․”). The second motion to vacate or revise was itself untimely under Tax Court Rule 162 because it was filed more than 30 days after the Tax Court's disposition of the first motion to vacate or revise. Further, the second motion lacked any request for leave to file out of time, and it raised several issues that were substantively similar to those raised in appellant's first motion to vacate or revise.

Pursuant to D.C. Circuit Rule 36, this disposition will not be published. The Clerk is directed to withhold issuance of the mandate herein until seven days after resolution of any timely petition for rehearing or petition for rehearing en banc. See Fed. R. App. P. 41(b); D.C. Cir. Rule 41.

Per Curiam