Nixon v. Commissioner

                 UNITED STATES COURT OF APPEALS
                      FOR THE FIFTH CIRCUIT


                       __________________

                          No. 98-60258
                       __________________

     JIMMY G. NIXON; RITA L. NIXON,

                                         Petitioners-Appellants,

                             versus

     COMMISSIONER OF INTERNAL REVENUE,

                                         Respondent-Appellee.

         ______________________________________________

                    Appeal from the Decision
                 of the United States Tax Court
         ______________________________________________

                        February 26, 1999

Before EMILIO M. GARZA, DeMOSS, and BENAVIDES, Circuit Judges.

PER CURIAM:

     This case raises an issue of first impression for this Court

concerning our appellate jurisdiction.    Appellants, Jimmy and

Rita Nixon, filed a petition with the Tax Court complaining about

deficiency notices that were issued to them for the years from

1987 through 1991 and 1993 through 1996.    After determining that

deficiency notices had been issued to the Nixons only for the

years 1994 and 1995, the Tax Court dismissed the Nixons’ petition

as to the other years for lack of jurisdiction.    The Nixons then

filed a notice of appeal to this Court.    We now consider whether

a Tax Court order disposing of only some of the claims in a

taxpayer’s petition is appealable and find that it is not.

     We join the majority of the other circuit courts that have
considered this issue in finding that a decision by the Tax Court

that does not dispose of all the issues presented in a taxpayer’s

petition is not a final order for purposes of an appeal.     See,

e.g., Brookes v. Commissioner of Internal Revenue, No. 97-70363,

1998 WL 887057 at *4-5 (9th Cir. Dec. 22, 1998) (holding that an

order partially disposing of a taxpayer’s petition was not

appealable); Shepherd v. Commissioner of Internal Revenue, 147

F.3d 633, 635 (7th Cir. 1998) (same); Schrader v. Commissioner of

Internal Revenue, 916 F.2d 361, 363 (6th Cir. 1990) (same);

Yaeger v. Commissioner of Internal Revenue, 801 F.2d 96, 97 (2d

Cir. 1986) (same).    But see Inverworld, Ltd. v. Commissioner of

Internal Revenue, 979 F.2d 868, 871-75 (D.C. Cir. 1992).

Therefore, unless the Tax Court enters a separate Rule 54(b)-type

order indicating that there is no just reason for delaying

appellate review of a partially resolved petition, this court

lacks jurisdiction to hear an appeal until a final judgment is

entered.    In so holding, we expressly adopt the sound reasoning

articulated in Judge Posner’s decision for the Seventh Circuit in

Shepherd.

     As there was no Rule 54(b)-type order entered by the Tax

Court in this case, the Nixons’ appeal is DISMISSED for lack of

jurisdiction.




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