In Uncategorized on 05/17/2012 at 18:15

Judge Holmes, The Great Dissenter, really rattled the D.C. Circuit’s cage when he dissented in Tigers Eye Trading, LLC, Sentinel Advisors, LLC, Tax Matters Partner, 138 T. C. 6, filed 2/13/12 (see my blogpost “The Great Dissenter – Part Deux,” 2/15/12). DC Circuit remands Petaluma III to Tax Court, asking whether Tax Court overruled Petaluma III and requesting Tax Court to report the current status of Petaluma III, in Petaluma FX Partners, LLC, Ronald Scott Vanderbeek, A Partner Other Than The Tax Matters Partner, 2012 T. C. Mem. 142, filed 5/17/12.

Apparently D. C. Circuit was concerned that Tax Court exceeded its limited statutory jurisdiction. Oh no no no, says Judge Goeke, and he takes 16 pages to say so.

Judge Goeke declares Tax Court has hewn at all times to the line established by the Supremes 120 years ago for lower courts when they get a remand from on high: “That [lower] court cannot vary it, or examine it for any other purpose than execution; or give any other or further relief; or review it, even for apparent error, upon any matter decided upon appeal; or intermeddle with it, further than to settle so much as has been remanded. [In re Sanford Fork & Tool Co., 160 U.S. 247, 255 (1895).]” 2012 T. C. Mem. 142, at p.11, footnote 9.

Moreover, Judge Goeke raps Judge Holmes’ metaphorical knuckles. “In its remand order, the D.C. Circuit quotes a sentence from a dissent in Tigers Eye. See Petaluma FX Partners, LLC v. Commissioner, 2012 U.S. App. LEXIS 4011 (citing Tigers Eye Trading, LLC v. Commissioner, 138 T.C. at ___, (slip op. at 205) (Holmes, J., dissenting) (‘Our decision today overrules Petaluma III.’)). The cited passage does not represent the position of this Court. No other Judge of the Court agreed with the part of the dissent from which the quoted sentence was taken. As noted supra, no part of any of the opinions by the Judges of this Court in Tigers Eye purported to explicitly alter or overrule the decision in this case or to revise the language of the Court’s Opinion in Petaluma III. To the extent the remand order was intended to provide this Court with the opportunity to alter or amend any aspects of Petaluma III, we respectfully decline to do so.

“In summation, we hold that the Court’s Opinion in Tigers Eye did not overrule or alter Petaluma III and that the current status of Petaluma III is unchanged.” 2012 T. C. Mem. 142, at pp. 15-16.

So there, D. C. Circuit, we’re good kids, really we are. And Great Dissenter Holmes, go stand in the corner.


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