NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted June 20, 2011*
Decided July 29, 2011
Before
RICHARD D. CUDAHY, Circuit Judge
KENNETH F. RIPPLE, Circuit Judge
DIANE P. WOOD, Circuit Judge
No. 11‐1310
ESTATE OF BURTON W. KANTER, Appeal from the Decision of the United
JOSHUA S. KANTER, EXECUTOR, States Tax Court.
Petitioner‐Appellant,
No. 712‐86
v.
Harry A. Haines, Judge.
COMMISSIONER OF INTERNAL
REVENUE,
Respondent‐Appellee.
O R D E R
*
After an examination of the briefs and record, we have concluded that oral argument is
unnecessary. Thus the appeal is submitted on the briefs and the record. FED. R. APP. P. 34(a)(2).
No. 11‐1310 Page 2
To borrow a phrase from Sir Paul McCartney, this case has wended its way down a long
and winding road. Along the way, it has visited this court twice before and has called once on
the U.S. Supreme Court. See Ballard v. Comm’r,
544 U.S. 40 (2005). A detailed account of its
history is available in our last opinion, Kanter v. Comm’r of Internal Revenue,
590 F.3d 410, 414
(7th Cir. 2009). On that occasion, Kanter’s Estate (to which we refer simply as Kanter) was
appealing an unfavorable Tax Court decision that relied critically on the court’s rejection of
many of the factual findings of the Special Trial Judge (“STJ”) who presided over the trial. We
concluded that the Tax Court had not shown the proper level of deference to the STJ’s factual
findings. We therefore reversed and remanded with instructions to the Tax Court to vacate its
judgment, to “enter an order adopting the STJ’s report as the decision of the Tax Court,” and
to enter judgment accordingly.
590 F.3d at 427. Our mandate issued on January 25, 2010.
On remand, the Tax Court took a number of steps to implement that mandate. On April
30, 2010, it vacated its earlier decision. On October 15, 2010, it issued an order stating that “the
Special Trial Judge’s report, made part of the record in this case on June 16, 2005, shall be
treated as the Court’s opinion in this case.” Six weeks later, the Tax Court entered a decision
reflecting the parties’ agreement about the amount of the tax deficiency owed by the taxpayer;
this amount was consistent with the STJ’s report. Around that time, Kanter filed a motion
seeking publication of the Tax Court’s opinion – i.e. of the STJ’s opinion as adopted by the Tax
Court. On January 20, 2011, the Tax Court granted the motion to publish and uploaded the
opinion to its website. Specifically, it made the STJ’s report an attachment to an order of June
16, 2005, that released the report to the public in compliance with the Supreme Court’s Ballard
decision.
Dissatisfied with these steps, Kanter filed an appeal to this court on January 28, 2011.
His notice of appeal is extremely limited: he asserts that he is appealing only the Tax Court’s
alleged failure formally to adopt the STJ’s opinion and the Court’s failure to publish the STJ’s
opinion under the “opinions” tab of the website. This is important, in his view, because it will
facilitate the indexing of the decision by such services as LEXIS and Westlaw.
The first – and it turns out only – question we need to consider is whether we have
jurisdiction over this unusual appeal. Our appellate jurisdiction, if it exists, rests on
26 U.S.C.
§ 7482(a), which grants jurisdiction to the courts of appeals to review decisions of the Tax
Court. But that implies that there is something for the appellant to complain about. It is well
established that a party may not appeal from a judgment in its favor. Electrical Fittings Corp. v.
Thomas & Betts Co.,
307 U.S. 241, 242 (1939). One consequence of that rule is the fact that the
court of appeals reviews the judgment of the trial court, not individual statements in its
opinions. We do not sit to re‐write opinions or to correct alleged errors that have no effect on
No. 11‐1310 Page 3
the ultimate outcome. Nor is our jurisdiction engaged if the question is utterly insubstantial.
Cf. Bell v. Hood,
327 U.S. 678 (1946) (subject‐matter jurisdiction is lacking “where . . . a claim is
wholly insubstantial and frivolous”). The latter principle is enough to require us to reject
Kanter’s first point. His allegation that the Tax Court has not entered an order adopting the
STJ’s report as its opinion is flatly contradicted by the record. The language of the order of
October 15, 2010, which we quoted above, leaves no room for doubt and requires us to dismiss
this part of the appeal as wholly insubstantial.
Kanter’s effort to make a federal case out of the location on the Tax Court’s website of
the STJ’s report fails for similar reasons. As we noted a moment ago, “[o]rdinarily, only a party
aggrieved by a judgment or order [ ] may exercise the statutory right to appeal therefrom. A
party who receives all that he has sought generally is not aggrieved by the judgment affording
the relief and cannot appeal from it.” Deposit Guaranty Nat. Bank, Jackson, Miss. v. Roper,
445 U.S.
326, 333 (1980); see also Environmental Protection Information Center, Inc. v. Pacific Lumber Co.,
257
F.3d 1071, 1075‐77 (9th Cir. 2001) (listing exceptions to the general rule that have no application
here, such as an adverse ruling that might have collateral estoppel effect). The Tax Court’s
decision assessed a tax deficiency that Kanter agreed was correct, and he understandably does
not appeal on that ground. We cannot find a justiciable controversy in the details of the Tax
Court’s website design. Anyone who is interested in the history of this litigation will find the
full STJ opinion. The fact that LEXIS or Westlaw may overlook publicly available documents
because they are not labeled as “opinions” is not our concern.
In summary, neither of the points he has presented to this court is substantial enough
to support appellate jurisdiction. The appeal is therefore DISMISSED.
CUDAHY, Circuit Judge, Concurring in part.
Since I have no quarrel with the majority opinion as a technical matter (although there
remains some ambiguity about compliance with this court’s mandate)**, I write separately to
**
The ambiguity derives from the multiple controlling documents in Tax Court cases.
A Tax Court opinion is ordinarily followed by a “decision,” which is a computation of tax
liability in accordance with the opinion. See generally Tax Court Rule 155. Our 2009 mandate
directed the Tax Court to use the STJ Report as the Tax Court’s “decision.” Ignoring that
mandate, then, would seem to result in an improper calculation of tax liability. But as
described above, the parties on remand stipulated to the extent of the taxpayer’s tax liability,
(continued...)
No. 11‐1310 Page 4
put matters in what seems to me an appropriate context. In that connection, I would point out
that I have been a member of the decisional panel here from the outset.
In the first round of this litigation, the Tax Court succeeded (over my dissent) in
concealing from this court the report of the Special Trial Judge (STJ Report) until forced to
furnish it by the Supreme Court. See Ballard v. Commissioner,
544 U.S. 40 (2005). In the second
round, under appellate compulsion, the Tax Court produced the STJ Report but arbitrarily
rejected its findings. See United States v. Kanter,
590 F.3d 410 (7th Cir. 2009). In this – the third
round – the Tax Court is apparently attempting to deny the STJ Report its normal place as the
controlling document in this case. From all appearances, the Tax Court is not a graceful loser
and I can appreciate the dissatisfaction of the prevailing litigant with the Tax Court’s response
to correction. However, I agree that this dissatisfaction is not an adequate basis for jurisdiction
in this instance.
**
(...continued)
and the taxpayer is raising no argument related to the amount of his liability. Instead, he is
complaining that the STJ Report was not given the prominence that a Tax Court opinion
ordinarily is.
