Lisle v. CIR , 341 F.3d 364 ( 2005 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT November 22, 2005
Charles R. Fulbruge III
Clerk
No. 01-60639
Consolidated with
No. 01-60640
No. 01-60641
No. 01-60642
ESTATE OF ROBERT W. LISLE, Deceased; ESTATE OF DONNA M. LISLE,
Deceased,
Petitioners-Appellants,
THOMAS W. LISLE, Independent Co-Executor; AMY L. ALBRECHT,
Independent Co-Executor,
Appellants
v.
COMMISSIONER OF INTERNAL REVENUE,
Respondent-Appellee.
--------------------
Appeals of a Decision of the
United States Tax Court
--------------------
Before HIGGINBOTHAM and DeMOSS,* Circuit Judges.
PER CURIAM:
Upon reconsideration by the panel of its mandate issued in
this case,1 under these unusual circumstances, in the interest of
fairness, and to prevent possible injustice, we recall the
*
By quorum.
1
341 F.3d 364 (5th Cir. 2003).
mandate, as requested by appellants.2
Our mandate left open only the claim of tax deficiency to
allow only a recalculation of tax in light of our opinion.
Nothing in the events today persuading this court to recall its
mandate requires reexamination of our decision to reverse the
imposition of fraud penalties. We are persuaded that in fairness
whether there is a deficiency owed ought to be reexamined in the
same manner as ordered by our colleagues of the Eleventh Circuit
in their most recent opinion in Ballard v. Commissioner,3 and we
REMAND the case to the Tax Court with orders to:
(1) Strike the “collaborative report” that formed the
basis of the Tax Court’s ultimate decision; (2)
reinstate Judge Couvillion’s original report; (3) refer
this case to a regular Tax Court judge who had no
involvement in the preparation of the aforementioned
“collaborative report” and who shall give “due regard”
to the credibility determinations of Judge Couvillion,
presuming that his fact findings are correct unless
manifestly unreasonable[, in dealing with the remaining
issues of tax deficiency]; and (4) Adhere strictly
hereafter to the amended Tax Court Rule in finalizing
Tax Court opinions.4
Appellants’ motion is GRANTED, the mandate is MODIFIED as herein
ordered, and the case is REMANDED in part for proceedings
consistent with this opinion and the mandate as recalled and
modified.
2
See United States v. Tolliver, 116 F.3d 120, 123 (5th Cir. 1997).
3
___ F.3d ___, 2005 WL 2861593 (11th Cir. Nov. 2, 2005).
4
Id. at *13-*14.