Case: 13-5048 Document: 18 Page: 1 Filed: 06/18/2013
NOTE: This order is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
FILLMORE EQUIPMENT OF HOLLAND, INC.,
JOHN A. PRAG, LYNN E. PRAG, DONALD C.
STECKER, AND ELISE STECKER,
Plaintiffs-Appellants,
v.
UNITED STATES,
Defendant-Appellee.
______________________
2013-5048
______________________
Appeal from the United State Court of Federal Claims
in No. 07-CV-0341, Judge Marian Blank Horn.
______________________
ON MOTION
______________________
Before NEWMAN, REYNA, AND WALLACH, Circuit Judges.
NEWMAN, Circuit Judge.
ORDER
Appellants, Fillmore Equipment of Holland, Inc., John
and Lynn Prag, and Donald and Elise Stecker, seek this
court’s review from an order of the United States Court of
Federal Claims denying reconsideration of dismissal of
Case: 13-5048 Document: 18 Page: 2 Filed: 06/18/2013
2 FILLMORE EQUIPMENT OF HOLLAND v. US
their partnership tax refund claims. Because the court is
in agreement with the government that the judgment of
that court dismissing their claims for lack of jurisdiction
is clearly correct as a matter of law, we grant the motion
for summary affirmance.
The tax litigation involving the limited partnerships
at the center of this case has a long history, summarized
by this court in Keener v. United States,
551 F.3d 1358
(Fed. Cir. 2009), Prati v. United States,
603 F.3d 1301
(Fed. Cir. 2010), and again in Fournier v. United States,
2012 WL 6839784 (Fed. Cir. 2012) (granting summary
affirmance), cert. denied. __ S. Ct. __,
2013 WL 6839784
(April 29, 2013), Dahlberg v. United States,
2012 WL
6839785 (Fed. Cir. 2012) (same), Glass v. United States,
2012 WL 6839771 (Fed. Cir. 2012) (same), Kettle v. United
States,
2012 WL 6824087 (Fed. Cir. 2012) (same),
McCann v. United States,
2012 WL 6839761 (Fed. Cir.
2012) (same), and Keefe v. United States,
407 Fed. Appx.
420 (Fed. Cir. 2010) (summarily affirming 53 appeals),
cert. denied
131 S. Ct. 2119 (2011). We will therefore
assume familiarity and state only those facts necessary to
resolve this motion.
In the 1980s, the taxpayers in this case all invested in
limited partnerships managed by American Agri-Corp
(“AMCOR”), a corporation that promoted tax shelters. In
the early 1990s, the Internal Revenue Service issued
Notices of Final Partnership Administrative Adjustment
(“FPAA”), disallowing certain deductions taken by these
tax partners as “sham transactions.” After representa-
tives of the partnerships failed to successfully challenge
the FPAAs in the Tax Court, the taxpayers in this case
paid their tax liabilities and enhanced interest for under-
payment, and brought this suit in the Court of Federal
Claims seeking a tax refund.
The Court of Federal Claims held that it lacked juris-
diction over the taxpayers’ asserted claims that the stat-
Case: 13-5048 Document: 18 Page: 3 Filed: 06/18/2013
FILLMORE EQUIPMENT OF HOLLAND v. US 3
ute of limitations had expired and the assessment of
interest was improper because the partnership transac-
tions were not tax motivated. The court based its conclu-
sion on the ground that such claims were “partnership
items” and must have brought at the partnership-level
proceeding instead of in partner-level proceedings pursu-
ant to
26 U.S.C. § 7422(h). That provision prohibits
partners from bringing individual actions “for a refund
attributable to partnership items[.]” After the appellants’
motion for reconsideration of that decision was denied on
April 30, 2012, this appeal followed.
In Prati and Keener, we held that statute of limita-
tions claims and challenges as to whether section 6621(c)
interest should have been assessed as sham transactions
are “partnership items,” and thus the taxpayers were
required to raise the claims in the partnership level
proceeding. Prati,
603 F.3d at 1306. Since the claims
here are indistinguishable from those in Prati and Keener,
the trial judges’ rulings that section 7422(h) bars these
taxpayers from asserting their section 6621(c) interest
and statute of limitations claims in these refund proceed-
ings are clearly correct as a matter of law. Accordingly,
summary affirmance of the judgment is appropriate. See
Joshua v. United States,
17 F.3d 378, 380 (Fed. Cir. 1994)
(“Summary affirmance of a case “is appropriate, inter alia,
when the position of one party is so clearly correct as a
matter of law that no substantial question regarding the
outcome of the appeal exists.”).
Accordingly,
IT IS ORDERED THAT:
(1) The motion is granted. The judgment of the Unit-
ed States Court of Federal Claims is affirmed.
(2) Each side shall bear its own costs.
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4 FILLMORE EQUIPMENT OF HOLLAND v. US
FOR THE COURT
/s/ Daniel E. O’Toole
Daniel E. O’Toole
Clerk
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