Equipment Holding Co. v. Commissioner

Case: 09-60866 Document: 00511585815 Page: 1 Date Filed: 08/29/2011

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit

FILED
August 29, 2011

No. 09-60866 Lyle W. Cayce
Summary Calendar Clerk

EQUIPMENT HOLDING COMPANY, L.L.C.; RONALD J. ADAMS,

Petitioners - Appellees
v.

COMMISSIONER OF INTERNAL REVENUE,

Respondent - Appellant

Appeal from the Decision of
the United States Tax Court
No. 18737-07

Before BENAVIDES, STEWART, and CLEMENT, Circuit Judges.
PER CURIAM:*
Appellant Commissioner of Internal Revenue appeals from a final order
of the Tax Court. The sole issue presented is whether an understatement of
income resulting from an overstatement of the tax basis of sold property can
qualify as an omission from gross income giving rise to the extended, six-year
period for tax assessment. A panel of this Court has decided this question on
facts materially identical to the facts in the instant case and concluded that such

*
Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
Case: 09-60866 Document: 00511585815 Page: 2 Date Filed: 08/29/2011

No. 09-60866

an overstatement does not trigger the extended six-year assessment period in
the Tax Code, 26 U.S.C. § 6501(e)(1)(A). Burks v. United States, 633 F.3d 347
(5th Cir.), petition for cert. filed, (Aug 11, 2011)(NO. 11-178, 11A9). The
argument presented by the Commissioner is foreclosed by our circuit precedent,
and the Commissioner recognizes the binding precedent, but nevertheless argues
that Burks was wrongly decided to preserve the issue in the event the Supreme
Court grants certiorari and reverses, vacates, or otherwise disturbs our decision
in Burks. This panel is bound by our precedent.
The judgment of the Tax Court is AFFIRMED.