Louisiana Department of Revenue v. Jazz Casino Co. (In Re Jazz Casino Co.) ( 2005 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT June 21, 2005
______________________
Charles R. Fulbruge III
No. 04-30961 Clerk
______________________
In The Matter Of: JAZZ CASINO COMPANY LLC,
Debtor.
-------------------------
LOUISIANA DEPARTMENT OF REVENUE,
Appellant,
v.
JAZZ CASINO COMPANY LLC; JCC HOLDING COMPANY,
Appellees.
Appeal from the United States District Court
for the Eastern District of Louisiana
Before WIENER, DeMOSS, and PRADO, Circuit Judges.
PER CURIAM:*
The Louisiana Department of Revenue (the “Department”)
appeals from the district court’s judgment affirming two final
bankruptcy court orders in favor of debtor Jazz Casino Company,
LLC, et al. (“Jazz Casino”). The bankruptcy court orders
disallowed a number of the Department’s claims for taxes
*
Pursuant to 5TH CIRCUIT RULE 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that this opinion should not be published and is not precedent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 CIRCUIT
RULE 47.5.4.
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allegedly owed by Jazz Casino on its purchases and leases of slot
machines.
On appeal to this court, the Department argues that the
district court erred in affirming the bankruptcy court’s orders.
Specifically, the Department contends that the district court
erred in holding that (1) the bankruptcy court’s decision to
consider the claims on the briefs rather than by trial did not
deny the Department procedural due process; (2) Jazz Casino’s
purchase of 198 stand-alone slot machines was a nontaxable, one-
time occurrence rather than a taxable sale; (3) Jazz Casino’s
lease agreements for progressive slot machines were not taxable
because they involved the performance of a service; (4) the
bankruptcy court’s decision to allow Jazz Casino’s supplemental
objections to the Department’s claims was not an abuse of
discretion; and (5) the issue of the taxability of Jazz Casino’s
nonprogressive slot machine leases was not reviewable on appeal
to the district court.
We review a district court’s decision to affirm an order of
the bankruptcy court by applying the same standards to the
bankruptcy court’s findings of fact and conclusions of law that
the district court applied. Gen. Elec. Capital Corp. v. Acosta
(In re Acosta), 406 F.3d 367, 372 (5th Cir. 2005). Consequently,
we review the bankruptcy court’s findings of fact for clear error
and its conclusions of law de novo. Id.
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On September 3, 2004, the district court entered a thorough,
well-reasoned order that carefully addressed each of the issues
raised by the Department and affirmed the orders of the
bankruptcy court. After reviewing the Department’s claims and
hearing oral argument, we find no error in the district court’s
rulings, listed above. We additionally note that the district
court’s refusal to consider the taxability of the nonprogressive
slot machine leases was proper because the Department failed to
list that issue in its “statement of issues” to be presented for
review in the district court. Zimmerman v. Jenkins (In re GGM,
P.C.), 165 F.3d 1026, 1031-32 (5th Cir. 1999) (holding that an
issue is not preserved for appeal if the appellant fails to
include the issue in its statement of issues to the district
court, as required under FED. R. BANKR. P. 8006). Accordingly, we
AFFIRM the district court’s judgment for essentially the same
reasons cited in its September 3, 2004 order.
AFFIRMED.
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