JPMorgan Chase & Co. v. Commissioner of Internal Revenue , 458 F.3d 564 ( 2006 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
Nos. 05-3730 & 05-3742
JPMORGAN CHASE & CO., successor in interest to
Bank One Corporation, successor in interest to
First Chicago NBD Corporation, formerly NBD
Bankcorp, Inc., successor in interest to First Chicago
Corporation, and affiliated corporations,
Petitioner-Appellant,
v.
COMMISSIONER OF INTERNAL REVENUE,
Respondent-Appellee.
____________
Appeals from the United States Tax Court.
Nos. 5759-95 and 5956-97—David Laro, Judge.
____________
ARGUED MARCH 30, 2006—DECIDED AUGUST 9, 2006
____________
Before FLAUM, Chief Judge, and MANION and WILLIAMS,
Circuit Judges.
MANION, Circuit Judge. JPMorgan Chase & Company
(“the taxpayer”), as successor and on behalf of its affili-
ated corporation First National Bank of Chicago, contests
alleged income tax deficiencies assessed for the years 1990-
1993. Specifically, the taxpayer and the Commissioner of the
2 Nos. 05-3730 & 05-3742
Internal Revenue Service (“Commissioner”) disagree about
how to calculate the fair market value, and thus the proper
taxation, of transactions known as “interest swaps.” The tax
court rejected the accounting methods used by both the
taxpayer and the Commissioner to value the interest swaps,
crafted a different method based upon expert testimony,
and ordered the parties to provide computations of the
taxes due based on the court’s findings. Making the compu-
tations was apparently a complicated process. More than a
year after the tax court issued its opinion, both parties
submitted new computations and briefing to the court. The
court then adopted the Commissioner’s computations in
their entirety. The taxpayer appeals. We affirm in part,
vacate in part, and remand for further proceedings.
I.
On January 19, 1995, the Commissioner issued a notice
of deficiency to the taxpayer for the 1990 taxable year
totaling $1,661,112, and for the 1991 taxable year total-
ing $2,956,794. The Commissioner followed up with another
notice of deficiency for the 1993 taxable year in the amount
of $95,156,499. Although the Commissioner did not assess
a deficiency for 1992, the 1993 deficiency placed in issue
adjustments taken in 1992. The taxpayer objected to the
deficiency notices and petitioned the tax court for relief,
raising over 40 objections. Mercifully, the parties settled all
but one dispute. The remaining issue involves the taxation
of income derived from “interest swaps.”
The tax court’s 160-page opinion in this case provides
a veritable treatise on interest swaps, so we refrain from
duplicating the intricacies of such transactions here. See
Bank One Corp. v. Comm’r, 120 T.C. 174, 185-208 (2003).
Nos. 05-3730 & 05-3742 3
Essentially, in an interest swap, two “counter-parties” agree
to make periodic interest payments to each other on a set
principal amount, the “notional amount,” for a specific
term. The notional amount is used only to calculate the
interest; there is no underlying loan and neither party ever
pays the principal. Usually, one party pays interest at a
fixed rate, the other at a variable or floating rate based on a
particular interest rate index, such as the London Interbank
Offering Rate (LIBOR). A party may profit from such a
transaction by correctly predicting the fluctuations in the
interest rate and swapping accordingly. For example, if the
floating rate rises above the fixed rate during the payment
term, the counter-party paying the fixed rate (and thus
receiving the floating rate), would reap a profit. Thus, the
interest swaps are subject to investment risks from changes
in interest rates, as well as the risk that the other counter-
party will fail to pay its obligation. Counter-parties manage
these risks by entering into numerous swaps on both the
floating and fixed sides, and by entering multiple transac-
tions with the same counter-party on the opposite fixed or
floating side, thereby avoiding a net loss in the event of that
counter-party’s default.
Since a counter-party may reap a profit or a loss from
interest swaps, the party must, as with its other investments,
record at the end of the taxable year any gain or loss from
the transaction. How to calculate the gain or loss is at issue
in this case. For tax purposes during the contested years, the
taxpayer valued its swap portfolio annually on a date
slightly before the end of the tax and calendar year, typi-
cally on the 20th day of December. Using the early closing
date, the taxpayer calculated the interest swap values by
running a computer program common in the industry called
the Devon Derivatives Software System (“Devon system”).
This system uses a mathematical model incorporating the
4 Nos. 05-3730 & 05-3742
bid and ask prices of swaps and the forecasted future
interest rates to compute a “midmarket” value for the
swaps. The midmarket value is the net present value of the
future cash flows generated by the swap. The Devon system
assumes that both counter-parties have the same AA credit
rating. For tax purposes, in order to report the income
derived from swaps, the taxpayer valued the swaps at their
midmarket values, but then deferred a portion of the income
to account for credit risks with less-worthy counter-parties
and for the taxpayer’s own administrative costs necessary
to maintain the swaps.
The Commissioner agreed with the principle of adjust-
ments for credit risk and administrative costs, but not
with the taxpayer’s method of deferring income to account
for those adjustments. Before the tax court, the taxpayer
recharacterized its deferrals as adjustments in valuation that
were necessary to clearly reflect the fair market value of the
interest swaps. Regardless of the characterization as a
deferral or an adjustment, the Commissioner argued that
the taxpayer’s particular method of accounting for credit
risk and administrative costs did not produce a fair market
value of the swaps that clearly reflected income. The
Commissioner proposed that, under the circumstances in
this case, the best method for producing a fair market value
that clearly reflected income was to use the unadjusted
midmarket values produced by the Devon system. This was
the value reported by the taxpayer on its return before the
income deferrals were taken.
The tax court thus confronted a controversy over the
proper calculation of the fair market value of interest swaps
to report as income. Presented with this novel issue, the tax
court appointed its own two experts, in addition to the five
experts submitted by the parties. In total, the trial involved
the testimony of twenty-one factual witnesses, seven expert
Nos. 05-3730 & 05-3742 5
witnesses, and over 10,000 pages of exhibits. After review-
ing the trial record and the parties’ 3,300 pages of additional
briefing and proposed findings, the tax court rejected both
the taxpayer’s and the Commissioner’s method, concluding
that both methods failed to reflect income clearly. Based
primarily on its own experts, the tax court crafted its own
method for determining the fair market value of interest
swaps and ordered the parties to provide calculations in
accordance with its method. The court-approved method
required a nuanced valuation of each swap that accounted
for, among other criteria, changes in the counter-parties’
credit ratings, changes in the interest rates over time, and
netting agreements that protected counter-parties in the
event of a default.
After over a year-and-a-half of wrestling with the num-
bers and the tax court’s criteria, the parties sub-
mitted computations. Due to the limitations of the record
and the complexity of the transactions, the parties were
unable to comply with all of the tax court’s requirements for
the computations. For example, the parties were unable to
reconstruct or calculate the value of the swaps as of Decem-
ber 31 of each tax year due to the taxpayer’s use of an earlier
closing date. The parties then presented another deluge of
briefing and calculations to the tax court. In sharp contrast
to its thorough, painstaking opinion on the accounting
methodology issued on May 2, 2003, the tax court, in a
cursory order entered on June 17, 2005, adopted the Com-
missioner’s computations without discussion of disputed
issues and decided that the taxpayer owed over seven
million dollars in income tax. The taxpayer appeals both the
accounting methodology decision and the tax court’s
adoption of the Commissioner’s computations.
Meanwhile, the Commissioner independently issued a
notice of proposed rulemaking that would affect the
6 Nos. 05-3730 & 05-3742
valuation of interest swaps. See Safe Harbor for Valuation
Under Section 475, 70 Fed. Reg. 29663 (May 24, 2005). The
proposed rule sets forth a safe harbor for valuing securi-
ties such as interest swaps. Specifically, the proposed
rule provides that if the valuation reported on certain
financial statements mirrors the reported taxable value, then
the Commissioner will accept the value as fair market value.
Such a rule, if finalized, would likely bear on similar cases
and may limit this case’s precedential value. More timely
rulemaking might have prevented or at least facilitated
resolution of this present dispute. Regardless, because this
case involves tax years preceding the proposed rule, we
proceed to the merits.
II.
On appeal, the taxpayer argues that the tax court erred
in rejecting its methodology for accounting for income from
the interest swaps. In addressing methods of accounting
used for tax purposes, the Internal Revenue Code (“Code”)
provides that “[t]axable income shall be computed under
the method of accounting on the basis of which the taxpayer
regularly computes his income in keeping his books.” 26
U.S.C. § 446(a). The Code then offers an exception: “[i]f no
method of accounting has been regularly used by the
taxpayer, or if the method used does not clearly reflect
income, then the computation of taxable income shall be
made under such method as, in the opinion of the Secretary,
does clearly reflect income.” 26 U.S.C. § 446(b).
Tax regulations further instruct that if, as here, a taxpayer
uses the accrual method, “[a]pplicable provisions of the
Code, the Income Tax Regulations, and other guidance
published by the Secretary prescribe the manner in which a
liability that has been incurred is taken into account . . . .” 26
Nos. 05-3730 & 05-3742 7
C.F.R. § 1.446-1(c)(ii). In this case, the taxpayer incurred a
liability to make future interest payments pursuant to
interest swap agreements. Thus, under the regulations, the
initial question is whether another provision of the Code or
Regulations prescribes the tax treatment for interest swap
agreements. This is a question of law that we review de
novo. Kikalos v. Comm’r, 434 F.3d 977, 981-82 (7th Cir. 2006)
(citations omitted).
A provision of the Code specifies the tax treatment that
applies to interest swaps. Specifically, section 475, which
is entitled “[m]ark to market accounting method for deal-
ers in securities,” provides that for “any security which is
not inventory in the hands of the dealer and which is held
at the close of any taxable year—(A) the dealer shall recog-
nize gain or loss as if such security were sold for its fair
market value on the last business day of such taxable
year, and (B) any gain or loss shall be taken into account
for such taxable year.” 26 U.S.C. § 475(a)(2). “Securities”
include interest swaps. 26 U.S.C. § 475(c)(2) (defining
security to include “equity notional principal contract[s]”
and “derivative financial instrument[s]”); 26 C.F.R.
§ 1.475(c)-1(a)(2)(ii) (including an interest swap dealer as an
example of a dealer in securities). Therefore, section
475 provides the accounting methodology for interest
swaps. Specifically, this section requires, as the heading
for this section indicates, “mark-to-market” accounting
in which the securities are “marked” to their market value at
the end of each year. Thus, under the plain language of the
Code, section 475(a)(2)(A) sets forth a method for valuing
interest swaps: swaps must be valued at their fair market
value on the last business day of the taxable year.1
1
The relevant parts of 26 U.S.C. § 475 requiring mark-to-market
(continued...)
8 Nos. 05-3730 & 05-3742
The taxpayer argues that the use of a reasonable account-
ing method or a method that complies with generally
accepted accounting principles (“GAAP”) is sufficient to
account for the fair market value under 475. As the tax court
noted, GAAP requires that interest swaps be valued at their
“fair value.” 120 T.C. at 220 (citing Statement of Financial
Accounting Standard 133). Essentially, the taxpayer argues
that a “fair value” under GAAP is a “fair market value” that
complies with section 475. Section 475(a)(2)(A), however,
clearly and unambiguously mandates valuation at “fair
market value,” and not “fair value.” See 120 T.C. at 303, 307-
10 (distinguishing fair value from fair market value).2
(...continued)
accounting were enacted through the Omnibus Budget Reconcili-
ation Act of 1993 and became effective for taxable years ended
“on or after December 31, 1993.” Omnibus Budget Reconciliation
Act of 1993, Pub. L. 103-66, § 13223, 107 Stat. 481. Accordingly,
the taxpayer was required to comply with the mark-to-market
method for the tax year ending in 1993. In the previous years, a
mark-to-market method was not required. Even though the
method was not required, the taxpayer used a mark-to-market
method that was “substantially the same in each of the years 1990
through 1993.” 120 T.C. at 280. Since the taxpayer used a mark-to-
market method before it was required by section 475, our analysis
of the application of mark-to-market accounting is the same for
each of the years in question even though section 475 does not
apply to the 1990-1992 periods. Furthermore, the taxpayer waived
the argument that a more permissive, “reasonableness” standard
applied for the 1990-1992 taxable years. See T.C. at 280. We
therefore address all of the tax years at issue under the mark-to-
market analysis of section 475.
2
We note that the proposed regulation may render this distinc-
(continued...)
Nos. 05-3730 & 05-3742 9
Financial accounting under GAAP and tax accounting
methods under a uniform code may diverge, as the Supreme
Court has observed by noting their “vastly differ-
ent objectives.” Thor Power Tool Co. v. Comm’r, 439 U.S. 522,
542 (1979). The Supreme Court elaborated:
Accountants long have recognized that “generally
accepted accounting principles” are far from being a
canonical set of rules that will ensure identical account-
ing treatment of identical transactions. “Generally
accepted accounting principles,” rather, tolerate a range
of “reasonable” treatments, leaving the choice among
alternatives to management. . . . Variances of this sort
may be tolerable in financial reporting, but they are
questionable in a tax system designed to ensure as far as
possible that similarly situated taxpayers pay the same
tax.
Id. at 544 (footnotes omitted). GAAP compliance is not
dispositive of compliance with the Code. See Am. Fletcher
Corp. v. United States, 832 F.2d 436, 439 (7th Cir. 1987).
Thus, the court must determine whether the taxpayer’s
method produced a fair market value; the fact that it
produces a fair value under GAAP is insufficient. The tax
court determined that the taxpayer’s fair value under GAAP
(...continued)
tion moot in future cases, since it would provide that “the value
that the eligible taxpayer assigns to that eligible position in its
applicable financial statement is the fair market value of the
eligible position for purposes of section 475, even if that value is
not the fair market value of the position for any other purpose of
the internal revenue laws.” 70 Fed. Reg. 29663 (text of proposed
regulation 1.475(a)-4(b)(1)). As of August 7, 2006, our research
indicates that the rule has not yet been finalized.
10 Nos. 05-3730 & 05-3742
did not represent the fair market value of the interest swap.
In assessing the tax court’s determination, we “review
factual determinations for clear error . . . [and] we review
applications of law to the facts for clear error.” Kikalos, 434
F.3d at 981-82 (citations omitted). Clear error exists if, “on
reviewing the entire record, we are left with the definite and
firm conviction that a mistake has been committed.” Id. at
982 (citation omitted).
The tax court’s May 2, 2003, opinion carefully examines
the taxpayer’s method for marking its interest swaps to
market and the various experts’ analyses of the method. We
find no clear error in the tax court’s conclusion that
the taxpayer’s method did not produce a fair market
value of the swaps. First, the tax court found that the
taxpayer did not value its swaps on the last business day of
the taxable year, as the statute requires. This was not
disputed. The tax court further found that the taxpayer
failed to calculate the fair market value because its meth-
od did not account for both parties’ credit rating in valu-
ing the swap (only making favorable adjustments if the
counter-party bore a worse credit rating than the taxpayer).
Additionally, the taxpayer did not consider that multiple
agreements with the same counter-party minimize the
risk of default. The tax court also found that the taxpayer’s
method should have re-valued each swap annually to
represent properly the fair market value, instead of only
valuing the swap’s projected value at its outset. Based on
these deficiencies, among others, the tax court concluded
that the taxpayer’s valuation of the interest swaps did
not represent their fair market value. In reaching this
conclusion, the tax court relied on expert testimony, and
that testimony supported the tax court’s conclusion. See
Malachinski v. Comm’r, 268 F.3d 497, 505 (7th Cir. 2001)
(noting tax court’s “broad discretion to evaluate the over-
all cogency of each expert’s analysis” (internal quotation
Nos. 05-3730 & 05-3742 11
and citation omitted)). Accordingly, the tax court did not
commit clear error in concluding that the taxpayer’s method
failed to produce a fair market value of the interest swaps.
Having rejected the taxpayer’s method, the tax court
proceeded to examine the Commissioner’s method.3 The tax
court analyzed whether the Commissioner’s own method
produced the fair market value of the interest swaps. In
doing so, however, the tax court failed to afford the Com-
missioner the deference due under the statutory scheme.
Section 446, provides that “if the method used [by the
taxpayer] does not clearly reflect income,” such as occurred
in this case in which the taxpayer’s method fails to produce
a fair market value, then “the computation of taxable
income shall be made under such method as, in the opinion
of the Secretary, does clearly reflect income.” 26 U.S.C.
§ 446(b). The method of determining “fair market value”
under section 475 falls within the definition of “method.” 26
C.F.R. § 1.446-1(a)(1) (“The term ‘method of accounting’
includes not only the overall method of accounting of the
taxpayer but also the accounting treatment of any item.”).
We observe section 446 requires that the Commissioner’s
method “shall” be followed. 26 U.S.C. § 446(b); see also
Hansen v. Comm’r, 360 U.S. 446, 467 (1959). Following this
3
We note that the Commissioner did not cross-appeal the tax
court’s determination that its method did not clearly reflect
income. This circuit has held that “[t]he filing of a cross-appeal is
a jurisdictional prerequisite to our reversing any part of a district
court’s order.” Newman v. Indiana, 129 F.3d 937, 941 (7th Cir. 1997)
(citing Young Radiator Co. v. Celotex Corp., 881 F.2d 1408, 1415-17
(7th Cir. 1989)). Because our broaching of this issue is interwoven
with and necessary to analyze the taxpayer’s appeal, and
particularly because addressing this issue does not afford relief
in favor of the Commissioner who prevailed below, we assert
jurisdiction over this issue based on the taxpayer’s own appeal.
12 Nos. 05-3730 & 05-3742
language, the Supreme Court instructs that the Commis-
sioner’s “interpretation may not be set aside unless ‘clearly
unlawful’ or ‘plainly arbitrary.’ ” Am. Fletcher, 832 F.2d at438 (citing Thor Power Tool, 439 U.S. at 532-33). Accordingly,
the tax court was required to defer to the Commissioner’s
method of calculating fair market value.4 See Travelers Ins.
Co. v. United States, 303 F.3d 1373, 1384 (Fed. Cir. 2002).5
Deference to the Commissioner is appropriate because, as
the Supreme Court has counseled, “[i]t is not the province
of the court to weigh and determine the relative merits of
systems of accounting.” Brown v. Helvering, 291 U.S. 193,
204-05 (1934) (citing Lucas v. Am. Code Co., 280 U.S. 445, 449
(1930)). As another circuit has stated, in situations in which
a “taxpayer’s method does not reflect his income . . . the
Revenue Act contemplates action by the Commissioner, not
4
We note again that the proposed regulations regarding mark-
to-market accounting may render the particular application of the
method disputed here inapplicable in the future. Academic
literature has characterized the methodology at issue of using
“the unadjusted midmarket value for most significant business
purposes” as “outlying.” Linda M. Beale, Book-Tax Conformity
and the Corporate Tax Shelter Debate: Assessing the Proposed
Section 475 Mark-to-Market Safe Harbor, 24 Va. Tax Rev. 301, 420
(2004) (emphasis omitted). The article further noted that the
taxpayer’s approach during the years at issue “cannot be
considered illustrative of current practice,” suggesting that this
dispute may have little bearing on the current market or prac-
tices. Id. at 422.
5
The Eighth Circuit appears to subscribe to a less deferential
review of the Commissioner’s method. See Dayton Hudson Corp.
v. Comm’r, 153 F.3d 660, 664 (8th Cir. 1998). We find the deferen-
tial review described by the Federal Circuit in Travelers, 303 F.3d
at 1383-84, to be more consistent with the plain language of
section 446 and with Supreme Court precedent.
Nos. 05-3730 & 05-3742 13
by the courts.” Harden v. Comm’r, 223 F.2d 418, 421 (10th Cir.
1955). This does not mean that the Commissioner has
unfettered discretion; his method may not be arbitrary or
unlawful. Am. Fletcher, 832 F.2d at 438 (citing Thor Power
Tool, 439 U.S. at 532-33). The courts may examine the
Commissioner’s method for arbitrariness or unlawfulness,
but the examination must be made under this deferential
standard.
In this case, although citing the arbitrary and unlawful
standard, see 120 T.C. at 288, the tax court did not analyze
the Commissioner’s method under this standard, see id. at
329-330.6 Instead, in a mere two pages of its 160-page
opinion, the tax court rejected the Commissioner’s method
by finding that it did not clearly reflect income. Essentially,
the tax court’s holding that the Commissioner’s method did
not clearly reflect income eviscerates the statutory language
that requires the use of a method that “in the opinion of the
Secretary” clearly reflects income. 26 U.S.C. § 446(b) (empha-
sis added). Under the required deferential standard, the tax
6
Although the details of the Commissioner’s proposed method
are not essential to our opinion, we note that the Commissioner
proposed using the taxpayer’s unadjusted midmarket values
as the fair market value. Although the Commissioner agreed
in principal with making adjustments to the midmarket values,
the Commissioner did not find adjustments warranted in this
case. On appeal, the Commissioner has maintained, as it did
below, that the taxpayer’s own reporting of the unadjusted values
as well as its failure to maintain required records justified leaving
the values unadjusted. We understand that the Commissioner
would use a method that adjusts the midmarket value, but such
a method was not appropriate or possible in this case because of
the taxpayer’s financial reporting statements and imperfect
record keeping.
14 Nos. 05-3730 & 05-3742
court had to do more than find that the Commissioner’s
method did not clearly reflect income; the tax court was
required to determine whether the Commissioner’s method
was arbitrary or unlawful. Am. Fletcher, 832 F.2d at 438
(citing Thor Power Tool, 439 U.S. at 532-33). This deference is
particularly warranted, given the peculiar record and
circumstances of this case. In applying the arbitrary or
unlawful standard, the tax court should bear in mind that
the taxpayer retains the burden of proof, and any inadequa-
cies with the Commissioner’s method that are due to the
taxpayer’s failure to keep or provide records, to the extent
that it affected the Commissioner’s choice of method, may
be taken into account. See id. at 442 (Cudahy, J., concurring)
(“Taxpayers are required to keep adequate records to
support their declaration of taxable income, and have no
grounds to protest if the Commissioner imposes a workable
accounting method when confronted with inadequate
records.”). We therefore vacate the tax court’s determination
that the Commissioner’s method did not clearly reflect
income and remand the case for the tax court to undertake
this analysis under the proper arbitrary or unlawful stan-
dard.
On remand, if the tax court determines that the Commis-
sioner’s method is not arbitrary or unlawful, the Commis-
sioner’s method should be adopted and applied, or cor-
rected. See All-Steel Equip., Inc. v. Comm’r, 467 F.2d 1184,
1185 (7th Cir. 1972) (“since the method used by taxpayer
was unacceptable and since the taxpayer has not shown that
the Commissioner’s proposed [ ] method [ ] was arbitrary or
unreasonable, substitution of the [Commissioner’s] method
(apart from certain errors of the Commissioner corrected by
the Tax Court) was appropriate here.”). If the Commis-
sioner’s method is arbitrary or unlawful, then the tax court
will have to decide whether the taxpayer’s method should
Nos. 05-3730 & 05-3742 15
prevail or if the tax court has the authority to craft its own
method.7 In addressing these issues, the tax court and the
parties may consider any lessons gleaned from the computa-
tions proceedings.
It would behoove the tax court and the parties on remand
to focus narrowly on deciding the precise issues remain-
ing in this case, and to make progress without duplicating
the extensive work already invested in this case. Finally,
although we need not reach the issue of computations that
are contested on appeal, and without expressing any
opinion as to the merits, we express concern about the
perfunctory adoption of the Commissioner’s computations,
particularly in contrast to the extensive opinion on account-
ing methodology in this case. Greater explanation in de-
ciding the vigorously contested points would facilitate
any future appellate review of this case.
7
Whether the tax court has the authority to craft its own method
has not been addressed squarely in this circuit, and we decline to
reach this issue here since the tax court’s determination of
arbitrariness or unlawfulness may render it unnecessary. We
further note that this issue of the tax court’s authority may be
complicated in situations, such as this, where the taxpayer’s
method fails to comply with a statutory or regulatory require-
ment (in this case, that the accounting method produce a “fair
market value” under 26 U.S.C. § 475). See Consol. Mfg., Inc. v.
Comm’r, 249 F.3d 1231, 1239-41 (10th Cir. 2001). Nonetheless, we
note that other courts have questioned the tax court’s authority
to craft its own accounting methods, which would have wide-
ranging implications for numerous businesses. See, e.g., Brown,
291 U.S. at 204-05; Lucas, 280 U.S. at 449; Harden, 223 F.2d at 421;
Caracci v. Comm’r, ___ F.3d ___, ___ No. 02-60912, 2006 WL
1892600 at *11 (5th Cir. July 11, 2006).
16 Nos. 05-3730 & 05-3742
III.
Accordingly, we AFFIRM in part, VACATE in part, and
REMAND to the tax court for further proceedings consis-
tent with this opinion. Each party shall bear its own costs of
this appeal.
A true Copy:
Teste:
_____________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—8-9-06