Stephen v. Talmage v. Commissioner of the Internal Revenue Service

99 F.3d 1131 78 A.F.T.R.2d 96-6967, 96-2 USTC P 50,563 NOTICE: Fourth Circuit Local Rule 36(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Fourth Circuit. Stephen v. TALMAGE, Petitioner-Appellant, v. COMMISSIONER OF THE INTERNAL REVENUE SERVICE, Respondent-Appellee. No. 96-1970. United States Court of Appeals, Fourth Circuit. Submitted Oct. 17, 1996. Decided Oct. 23, 1996. Stephen V. Talmage, Appellant Pro Se. Gilbert Steven Rothenberg, Gary R. Allen, Randolph L. Hutter, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellee. U.S.T.C. DISMISSED IN PART, AFFIRMED IN PART. Before MURNAGHAN and WILLIAMS, Circuit Judges, and BUTZNER, Senior Circuit Judge. PER CURIAM: [1] Stephen V. Talmage appeals from the tax court's orders (1) entered March 11, 1996, granting summary judgment to the Commissioner and imposing a penalty under 26 U.S.C. § 6673(a)(1)(B) (1994) for pursuing a frivolous action in tax court; and, (2) entered April 17, 1996, denying his motion for reconsideration. [2] Talmage's notice of appeal, filed on July 5, 1996, is untimely as to the March 11 order. 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). Talmage's motion to vacate, filed on April 15, 1996, did not extend the time to appeal the tax court's decision because it was not filed within thirty days after the order was entered. See Fed. R.App. P. 13(a); Tax Ct. R. 162. Accordingly, we dismiss the appeal from the March 11 order for lack of jurisdiction. [3] Talmage's motion to vacate the tax court's decision failed to allege any grounds for such relief. Therefore, we affirm the tax court's denial of the motion. The government has filed a motion seeking sanctions against Talmage for noting a frivolous appeal. Fed. R.App. P. 38. We deny the motion without prejudice to file another motion should Talmage file another appeal in this court raising similar claims as those raised in this appeal. 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 IN PART; AFFIRMED IN PART