Unpublished Dispositionfred Krejci, Petitioner-appellant, v. Commissioner of Internal Revenue, Respondent-appellee, 819 F.2d 289 (6th Cir. 1987)

ORDER

Appellee moves to dismiss this appeal for lack of jurisdiction because the notice of appeal was untimely filed. Appellant has responded to the motion to dismiss.

On August 27, 1986, the Tax Court entered an order granting respondent's motion to dismiss and imposing damages. The notice of appeal was due within 90 days of entry thereof--November 25, 1986. Rule 13(a), Federal Rules of Appellate Procedure. Pursuant to the Treasury Regulations on Procedure and Administration, 26 C.F.R. Sec.301.7502-1(b) (ii) (1986) and 26 U.S.C. § 7502(a) (1980), a notice of appeal that is postmarked prior to the expiration of the prescribed 90 day period may be treated as timely filed. Appellant mailed his notice of appeal by certified mail. The envelope was postmarked November 26, 1986, and is, therefore, one day late.

Because the notice of appeal was untimely filed, this Court is deprived of jurisdiction.

Accordingly, appellee's motion to dismiss is granted and it is ORDERED that this appeal be dismissed. Rule 9(b) (1), Rules of the Sixth Circuit.