concurring.
The appellant here had the curious idea that the appeal it took to us was an appeal not only from the Claims Court decision, but also from the decision by the panel in Gindes v. United States, 228 Ct.Cl. 632, 661 F.2d 194 (1981). This idea was contrary to the basic structure of the Federal Courts Improvement Act of 1982, Pub.L. No. 97-164, which clearly regarded the court to be superseded, the Court of Claims, as having both appellate and trial functions. Decisions in performance of appellate functions were not intended to be subject to appellate review by the new court. By the rules of the old Court of Claims, whether a function was appellate depended on whether the appellate division performed it. Cross-motions for summary judgment were frequently the medium for appellate review, as for example in “Wunderlich” contract eases. Ct.Cl.Rules 161-166. Even when, as in tax cases, this was not so stated, the appellate status of an appellate division decision on a tax matter is clearly evident in the fact that the law provided no other appellate review.
When this court decided in South Corp. v. United States, 690 F.2d 1368 (Fed.Cir.1982) that it would treat all Court of Claims appellate division decisions as binding precedents, this necessarily was a holding that this court would not sit in appellate review on any Court of Claims appellate division decisions. If it is a binding precedent, it hardly needs the Law of the Case doctrine to immunize it from the kind of reexamination this appellant wanted us to make. Even should we think the Court of Claims decision “was clearly erroneous and would work a manifest injustice,” it would seem we could act on this view only by recommending an en banc review under our rules.
Appellant also argued that there was a clear error and manifest injustice in applying Treasury Regulation § 1.754-l(b) retroactively to a transfer, antedating the regulation date, 1972. Unless those concerned with the transfer were endowed with second sight, they could not comply with procedure not yet spelled out in the regulations, it was argued. However, the predecessor 1956 version of the regulation stated that the election in question must be made with the tax return for the “first taxable year to which the election applies.” The statute required at all relevant times that the Secretary should prescribe by regulation how the election should be exercised. As the regulation of 1956, however ambiguous, at least notified the taxpayer he had to meet a deadline he did not meet to make an effective election, the retroactivity argument is a weak one and the former decision is not clearly erroneous or such as would cause a “manifest injustice.” The court perhaps might have gone the other way, but it considered the arguments and made its reasoned decision which had to be one way or the other. It is just not the kind of case to justify substituting one set of judges’ views for those of another set.