* Upon reinstatement of this case Chief Judge Joel M. Flaum was

replaced by Judge Terence T. Evans.

In the

United States Court of Appeals

For the Seventh Circuit

____________

Nos. 01-4316, 01-4317, 01-4318, 01-4319,

 01-4320, 01-4321, 01-4322 & 02-1220

ESTATE OF BURTON W. KANTER,

JOSHUA S. KANTER, and NAOMI KANTER,

Petitioners-Appellants,

v.

COMMISSIONER OF INTERNAL REVENUE,

Respondent-Appellee.

____________

Appeals from the United States Tax Court.

Nos. 712-86, 1350-87, 31301-87, 33557-87, 

3456-88, 32103-88 & 26251-90

____________

On Remand from the Supreme Court of the United States

____________

SUBMITTED APRIL 20, 2005—DECIDED MAY 9, 2005 

____________

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
2 Nos. 01-4316, 01-4317, 01-4318, 01-4319,

 01-4320, 01-4321, 01-4322 & 02-1220

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,
Nos. 01-4316, 01-4317, 01-4318, 01-4319, 3

 01-4320, 01-4321, 01-4322 & 02-1220

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. Commissioner of Internal

Revenue, No. 03-1034.

CUDAHY, Circuit Judge, dissenting. Having been the dissenter in the earlier consideration of this case, I would

much prefer now to join my colleagues in making a proper

disposition in accordance with the Supreme Court’s reversal. However, I find that I cannot concur in the course

now being adopted.

The essential issue in this case was whether the Tax Court

was within its rights in refusing to include in the record on

appeal the report of the special tax court judge who presided over the trial. The Supreme Court has now decided

that the rules of the Tax Court do not authorize the suppression of this document. This report must be included in

the record, and I see no reason why it cannot be produced

without further delay. It was improperly withheld, and that

nondisclosure ought to cease—now.
4 Nos. 01-4316, 01-4317, 01-4318, 01-4319,

 01-4320, 01-4321, 01-4322 & 02-1220

The Commissioner argues that the Court also disapproved

the “collaborative” procedure followed by the Tax Court in

dealing with the special trial judge’s report. Therefore,

apparently before the undisclosed report is produced, the

Commissioner seeks a remand so the Tax Court can somehow deal with the Supreme Court’s disapproval of its procedure. But this seems to me to put the cart before the

horse. The “collaborative” procedure was only adopted in

light of the decision to keep the report secret, in order to

deal with the requirement that the findings of the report be

granted due deference. There would have been no need for

a “collaborative” procedure had there been no decision to

keep the report secret, and it is this secrecy from which all

other purported improprieties spring.

There may or may not be need for a remand here, so that

the Tax Court may adopt some unspecified measures for

somehow correcting the “collaborative” procedure. I perhaps

could be persuaded of such a need if the Commissioner were

more specific in indicating exactly how the process of

correction would proceed and what purpose it would further.

However, I am not persuaded that any requirement to undo

the “collaborative” procedure is an adequate excuse for refusing at this late date to produce the report. Other problems in this case all flow from the unfortunate decision to

refuse to disclose the report, and I believe that error should

be rectified without further delay.

I therefore respectfully dissent.
Nos. 01-4316, 01-4317, 01-4318, 01-4319, 5

 01-4320, 01-4321, 01-4322 & 02-1220

A true Copy:

Teste: 

 ________________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit 

USCA-02-C-0072—5-9-05