Overstreet v. C.I.R.

Full title: Gary F. OVERSTREET; et al., Petitioners--Appellants, v. COMMISSIONER OF…

Court: United States Court of Appeals, Ninth Circuit

Date published: Apr 17, 2002

33 F. App'x 349 (9th Cir. 2002)

Opinion

33 Fed.Appx. 349 (9th Cir. 2002) Gary F. OVERSTREET; et al., Petitioners--Appellants, v. COMMISSIONER OF INTERNAL REVENUE, Respondent--Appellee. No. 01-71021. IRS No. 2659-00. United States Court of Appeals, Ninth Circuit. April 17, 2002

Submitted April 8, 2002 ^*.

* This panel unanimously finds this case suitable for decision without oral argument. See Fed. R.App. P. 34(a)(2).

NOT FOR PUBLICATION. (See Federal Rule of Appellate Procedure Rule 36-3)

Appeal from the United States Tax Court.

Page 350.

Before BROWNING, KLEINFELD, and GOULD, Circuit Judges.

MEMORANDUM ^**

** This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as may be provided by Ninth Circuit Rule 36-3.

Gary F. and Helen Overstreet appeal pro se the tax court's decision upholding the Commissioner of Internal Revenue's determination of a federal income tax deficiency for the tax year 1992. We have jurisdiction pursuant to 26 U.S.C. § 7482(a). We dismiss in part and affirm in part.

We lack jurisdiction to address the Overstreets' contentions regarding the merits of the Tax Court's original decision and written opinion because the Overstreets failed to file a notice of appeal within ninety days of the entry of decision, and failed to file a timely post-decision tolling motion. See 26 U.S.C. § 7483; Nordvik v. Commissioner, 67 F.3d 1489, 1492-93 (9th Cir.1995); Wood v. Commissioner, 338 F.2d 602, 603 (9th Cir.1964). Accordingly, we dismiss the Overstreets' appeal of the Tax Court's underlying decision. See 26 U.S.C. § 7483.

Although this court lacks jurisdiction over the merits of the Tax Court's underlying decision, it does have jurisdiction over the Overstreets' appeal from the denial of their motion for reconsideration because the Overstreets filed a notice of appeal within ninety days of the entry of that decision. See Mt. Graham Red Squirrel v. Madigan, 954 F.2d 1441, 1463 (9th Cir.1992).

We review for abuse of discretion the denial of a motion for reconsideration, Parkinson v. Commissioner, 647 F.2d 875, 876 (9th Cir.1981) (per curiam), and may affirm for any reason fairly supported by the record, Beezley v. Fremont Indem. Co., 804 F.2d 530, 530 n. 1 (9th Cir.1986) (per curiam).

The Tax Court did not abuse its discretion by denying as untimely the Overstreets' motion for reconsideration. See Fed. Tax Ct. R. 161.

AFFIRMED IN PART AND DISMISSED IN PART.