Lentin v. COMMISSIONER OF INTERNAL REVENUE

Decision Date10 October 1956
Docket NumberNo. 11713.,11713.
PartiesJulian LENTIN, Petitioner, v. COMMISSIONER OF INTERNAL REVENUE, Respondent.
CourtU.S. Court of Appeals — Seventh Circuit

Henry H. Koven, Howard R. Koven, Charles N. Salzman, and Paul Homer, Chicago, Ill., for petitioner.

Charles K. Rice, Asst. Atty. Gen., Meyer Rothwacks, Attorney, Tax Division, U. S. Dept. of Justice, Washington, D. C., Lee A. Jackson, I. Henry Kutz, Helen A. Buckley, Attorneys, Department of Justice, Washington, D. C., for respondent.

Before DUFFY, Chief Judge, and MAJOR and LINDLEY, Circuit Judges.

LINDLEY, Circuit Judge.

In Lentin v. Commissioner, 7 Cir., 226 F.2d 695, on October 14, 1955, we affirmed the decision of the Tax Court upholding the Commissioner's determination of a deficiency in income tax against the taxpayer. On January 9, 1956, the Supreme Court denied a petition for a writ of certiorari. Nine days later the mandate from this court was filed with the Tax Court. On January 23rd following, the taxpayer filed in the Tax Court his motion for leave to file a motion to withdraw and reform the stipulation between the parties submitted on the original hearing, and for further hearing, and reconsideration and revision of the original decision. This motion was granted. On the same day the taxpayer, by virtue of the leave granted, filed his substantive motion to withdraw and reform the stipulation, for further hearing and for reconsideration and revision of the decision, and this action the Tax Court dismissed. Thereupon the taxpayer filed this petition for review.

Whether under such circumstances the Tax Court has the power to entertain a motion for reconsideration or revision is, in view of the decisions of the various circuits, a disputed question. Sweet v. Commissioner, 1 Cir., 120 F.2d 77; Monjar v. Commissioner, 2 Cir., 140 F.2d 263; White's Will v. Commissioner, 3 Cir., 142 F.2d 746; Lasky v. Commissioner, 9 Cir., 235 F.2d 97, take the position that, after its decision becomes final, the Tax Court is without jurisdiction to entertain such a motion. To the contrary are Reo Motors v. Commissioner, 6 Cir., 219 F.2d 610; LaFloridienne J. Buttgenbach & Co. v. Commissioner, 5 Cir., 63 F.2d 630. See also Stern v. Commissioner, 3 Cir., 215 F.2d 701. In view of our conclusions however, we find it unnecessary to try to find the proper solution of this debatable problem.

In one or more of the cases cited it is clear that the Tax Court did not decide whether it had jurisdiction and the cause was remanded for further explanation of its decision. Here, we think, there is no uncertainty as to the basis for the denial of the substantive motion for reconsideration. It seems clear to us that when the motion for leave to file the motion for reconsideration was allowed, the court, by its allowance of that motion, asserted jurisdiction; it thereby assumed jurisdiction over the subject matter. Its later denial of the motion for revision we think, therefore, cannot be considered in any manner as based on a lack of jurisdiction, but was truly an exercise of jurisdiction. Obviously, the Tax Court thought it had power to act and...

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10 cases
  • Toscano v. CIR
    • United States
    • U.S. Court of Appeals — Ninth Circuit
    • April 28, 1971
    ... ... TOSCANO aka Josephine C. Zelasko, Petitioner-Appellant, ... COMMISSIONER OF INTERNAL REVENUE, Respondent-Appellee ... No. 24595 ... United ... C.I.R., 8 Cir., 1957, 249 F.2d 364; reformation of a stipulation, Lentin v. C.I.R., 7 Cir., 1957, 243 F.2d 907; id, 237 F.2d 5; newly discovered ... ...
  • Heim v. C.I.R.
    • United States
    • U.S. Court of Appeals — Eighth Circuit
    • April 10, 1989
    ...be by special leave of the court. Whether to grant such a motion lies within the sound discretion of the tax court. Lentin v. Commissioner, 237 F.2d 5, 6 (7th Cir.1956). Cf. Long v. Commissioner, 757 F.2d 957, 959 (8th Cir.1985) (denial of leave to amend petition within tax court's discreti......
  • Alt v. Commissioner
    • United States
    • U.S. Tax Court
    • July 7, 1994
    ...[89-1 USTC ¶ 9272], 872 F.2d 245, 246 (8th Cir. 1989), affg. an order of this Court; Lentin v. Commissioner [56-2 USTC ¶ 9958], 237 F.2d 5, 6 (7th Cir. 1956). If a timely motion to vacate has filed, the 90-day period for filing an appeal does not begin to run until after the motion is adjud......
  • Herskovitz v. Commissioner
    • United States
    • U.S. Tax Court
    • February 1, 1995
    ...[89-1 USTC ¶ 9272], 872 F.2d 245, 246 (8th Cir. 1989), affg. an order of this Court; Lentin v. Commissioner [56-2 USTC ¶ 9958], 237 F.2d 5, 6 (7th Cir. 1956). If a timely motion has been filed, the 90-day period for filing an appeal begins to run when the motion is adjudicated. Fed. R. App.......
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