Kanter v. C.I.R., 01-4316.

• Decision Date: 09 May 2005
• Docket Number: No. 01-4316.,No. 01-4320.,No. 01-4321.,No. 01-4319.,No. 01-4317.,No. 02-1220.,No. 01-4322.,No. 01-4318.,01-4316.,01-4317.,01-4318.,01-4319.,01-4320.,01-4321.,01-4322.,02-1220.
• Parties: Estate of Burton W. KANTER, Joshua S. Kanter, and Naomi Kanter, Petitioners-Appellants, v. COMMISSIONER OF INTERNAL REVENUE, Respondent-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

406 F.3d 933

Estate of Burton W. KANTER, Joshua S. Kanter, and Naomi Kanter, Petitioners-Appellants, v. COMMISSIONER OF INTERNAL REVENUE, Respondent-Appellee.

No. 01-4316.

No. 01-4317.

No. 01-4318.

No. 01-4319.

No. 01-4320.

No. 01-4321.

No. 01-4322.

No. 02-1220.

United States Court of Appeals, Seventh Circuit.

Submitted April 20, 2005.

Decided May 9, 2005.

Richard H. Pildes, New York University Law School, New York, NY, and Randall G. Dick, San Francisco, CA, for Petitioners-Appellants.

Steven W. Parks, Department of Justice Tax Division, Appellate Section, Washington, DC, and John J. Comeau, Internal Revenue Service Regional Counsel, Chicago, IL, for Respondent-Appellee.

Before CUDAHY, KANNE and EVANS,^* Circuit Judges.

PER CURIAM.

The certified copy of the Supreme Court judgment in Estate of Burton W. Kanter v. Commissioner of Internal Revenue, No. 03-1034, was issued no earlier than 25 days after the release of its opinion in Kanter on March 7, 2005. The certified copy of the judgment was filed with this court on April 12, 2005. That judgment reversed our decision and remanded this case for further proceedings. In accordance therewith, on April 12, 2005, we vacated our decision and reinstated this appeal.

Circuit Rule 54 provides in part that "counsel for the parties shall, within 21 days after the issuance of a certified copy of the Supreme Court's judgment ..., file statements of their positions as to the action which ought to be taken by this court on remand."

Inconsistent with Rule 54, and before the reinstatement of this appeal on April 12, 2005, the parties filed the following: on March 11, 2005, Estate of Kanter filed "Motion to Supplement the Record on Appeal" (requesting an order of production directed to the Tax Court regarding the Special Trial Judge Report; requesting the record on appeal to be supplemented with that report; and, requesting that this court set a schedule for briefing the merits of the appeal in light of the report); on March 24, 2005, the Commissioner of Internal Revenue ("CIR") filed "Commissioner's Motion to Remand, and Response to Taxpayer's Motion to Supplement Record" (requesting that the case be remanded to the Tax Court for further proceedings consistent with the Supreme Court's decision); on March 25, 2005, Estate of Kanter filed "Reply in Support of Motion to Supplement the Record on Appeal and Response to Motion to Remand"; on April 1, 2005, CIR filed "Commissioner's Reply to Appellant's Response to Commissioner's Motion to Remand"; and, on April 5, 2005, Estate of Kanter filed "Motion to File Surreply in Response to Motion to Remand."

Notwithstanding, however, the filing of the aforementioned pleadings prior to reinstatement of this appeal in this court, and the parties' failure to adhere to the provisions of Circuit Rule 54, we will treat the pleadings as filed post-April 12, 2005, and consider them as statements of position submitted pursuant to Circuit Rule 54.

We decline the invitation of the Estate of Kanter to truncate this case by foregoing a remand to the United States Tax Court. The Estate of Kanter's request for an order of production, request to supplement the record, and request for additional briefing are denied. The Estate of Kanter's request to file a surreply is denied.

On consideration of the position statements, we order this case REMANDED to the United States Tax Court for further proceedings consistent with the Supreme Court's decision in Estate of Burton W. Kanter v....