Unpublished Dispositiondaniel J. and Lorraine A. Gurta, Petitioners-appellants, v. Commissioner of Internal Revenue, Respondent-appellee, 848 F.2d 190 (6th Cir. 1988)

ORDER

This matter is before the court upon consideration of the appellant's response to this Court's October 23, 1987, order directing him to Show Cause why his appeal should not be dismissed for lack of jurisdiction, and upon consideration of appellee's motion to dismiss the appeal. Appellant has responded to the show cause order and the motion to dismiss.

A review of the record indicates that appellant's September 28, 1987, notice of appeal from the order of the Tax Court entered April 15, 1987, was filed 76 days late.

The failure of an appellant to timely filed a notice of appeal deprives an appellate court of jurisdiction. A notice of appeal from a Tax Court decision must be filed within 90 days after the decision is entered. See 26 U.S.C. § 7483; Robert Louis Stevenson Apartments, Inc. v. Commissioner, 337 F.2d 681 (8th Cir. 1964). Fed. R. App. P. 13. The filing of a timely notice of appeal is a jurisdictional prerequisite, and the Tax Court cannot grant an extension of time in which to file a notice of appeal absent the narrow exception for fraud upon the court. See Feistman v. Commissioner, 587 F.2d 941 (9th Cir. 1978). Fed. R. App. P. 26(b) specifically provides that this court cannot enlarge the time for filing a notice of appeal.

It is ORDERED that the motion to dismiss the appeal for lack of jurisdiction be granted and the appeal be and hereby is dismissed. Rule 8, Rules of the Sixth Circuit.