235 F.3d 1054 (8th Cir. 2000), 99-3917, Anastasoff v. United States

Docket Nº:99-3917EM
Citation:235 F.3d 1054
Party Name:Faye Anastasoff, Appellant, v. United States of America, Appellee.
Case Date:December 18, 2000
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit
 
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Page 1054

235 F.3d 1054 (8th Cir. 2000)

Faye Anastasoff, Appellant,

v.

United States of America, Appellee.

No. 99-3917EM

United States Court of Appeals, Eighth Circuit

December 18, 2000

Submitted: November 28, 2000

On Appeal from the United States District Court for the Eastern District of Missouri.

Page 1055

Before WOLLMAN, Chief Judge, HEANEY, McMILLIAN, RICHARD S. ARNOLD,BOWMAN, BEAM, LOKEN, HANSEN, MORRIS SHEPPARD ARNOLD,MURPHY, and BYE, Circuit Judges, en banc.

RICHARD S. ARNOLD, Circuit Judge.

This is a tax case. The appellant, Faye Anastasoff, filed suit for a refund in the claimed amount of $6,436.00. The United States asserted that the plaintiff's claim for a refund had been untimely. The District Court agreed, and we affirmed. Anastasoff v. United States, 223 F.3d 898 (8th Cir. 2000).

The panel of this Court that initially heard the case held that the administrative claim for refund was not timely. This position, which was urged upon us by the government, depended upon interpretation of the relevant statutes, including §§ 6511(b)(2) and 7502(a) of the Internal Revenue Code. The United States cited to the panel an unpublished opinion of this Court, Christie v. United States, No. 91-2375MN (8th Cir., March 20, 1992) (per curiam). The panel held itself bound by Christie, believing that our local Rule 28A(i), which specified that unpublished opinions have no precedential effect, was unconstitutional, as purporting to confer upon the courts a power that went beyond the "judicial," within the meaning of Article III of the Constitution.

While the case was under advisement by the panel, the Second Circuit decided Weisbart v. United States, 222 F.3d 93 (2000), which was in direct conflict with Christie. Our panel, believing itself bound by Christie as authoritative in-Circuit precedent, noted Weisbart, but considered itself without authority to decide whether the Weisbart rule was preferable to the rule of Christie. That decision, the panel thought, would be only for the Court en banc, which, unlike panels, does have the authority to overrule previous opinions.

The taxpayer then filed a petition for rehearing en banc, asserting that the panel's constitutional holding was in error, and that, on the merits, this Court should abandon Christie. In response to the petition for rehearing en banc, the United States informed us that it intended to...

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