Bush v. United States , 400 F. App'x 556 ( 2010 )

NOTE: This order is nonprecedential.
United States Court of Appeals
for the Federal Circuit
__________________________
LYMAN F. BUSH INDIVIDUALLY AND AS
PERSONAL REPRESENTATIVE OF THE ESTATE
OF BEVERLY J. BUSH,
Plaintiffs-Appellants,
v.
UNITED STATES,
Defendant-Appellee.
__________________________
2009-5008
__________________________
Appeal from the United States Court of Federal
Claims in consolidated case nos. 02-CV-1041 and 04-CV-
1598, Judge George W. Miller.
__________________________
TOMMY J. SHELTON,
Plaintiff-Appellant,
v.
UNITED STATES,
Defendant-Appellee.
__________________________
2009-5009
__________________________
Appeal from the United States Court of Federal
Claims in consolidated case nos. 02-CV-1042 and 04-CV-
1595, Judge George W. Miller.
__________________________
BUSH v. US 2
Before RADER, Chief Judge, NEWMAN, LOURIE, BRYSON,
GAJARSA, LINN, DYK, PROST, and MOORE, Circuit Judges.
PER CURIAM.
ORDER
Each Plaintiff-Appellant, Lyman F. Bush (individu-
ally and as personal representative of the Estate of Bev-
erly J. Bush) and Tommy J. Shelton, filed a combined
petition for panel rehearing and rehearing en banc in
their respective appeals. Defendant-Appellee United
States filed a petition for panel rehearing covering both
appeals. Pursuant to the panel’s requests, Appellee filed
a response to the petition in each appeal, and each appel-
lant filed a response to the United States’ petition.
All petitions for panel rehearing were considered by
the panel that heard the appeals, and thereafter the
combined petitions for rehearing en banc and the re-
sponses to the combined petitions were referred to the
circuit judges who are authorized to request a poll on
whether to rehear the appeal en banc. A poll was re-
quested, taken, and the court has decided that the appeal
warrants en banc consideration.
Upon consideration thereof,
IT IS ORDERED THAT:
(1) The petition of Plaintiff-Appellant Lyman Bush,
individually and as personal representative of the Estate
of Beverly J. Bush, for panel rehearing is denied.
(2) The petition of Plaintiff-Appellant Tommy J. Shel-
ton for panel rehearing is denied.
(3) The petition of Defendant-Appellee United States
for panel rehearing is denied.
(4) The combined petitions of Plaintiffs-Appellants
Lyman F. Bush, individually and as personal representa-
tive, and Tommy J. Shelton for rehearing en banc are
granted.
3 BUSH v. US
(5) The court’s March 31, 2010 opinion is vacated,
and the appeals are reinstated.
(6) The parties are requested to file new briefs ad-
dressing the following issues:
a) Under I.R.C. § 6213, were taxpayers
in this case entitled to a pre-assessment
deficiency notice? Were the assessments
the results of a “computational adjust-
ment” under § 6230 as the term “computa-
tional adjustment” is defined in §
6231(a)(6)?
b) If the IRS were required to issue a de-
ficiency notice, does § 6213 require that a
refund be made to the taxpayers for
amounts not collected “by levy or through
a proceeding in court”?
c) Are taxpayers entitled to a refund un-
der any other section of the Internal
Revenue Code? For example, what effect,
if any, does an assessment without notice
under § 6213 have on stopping the run-
ning of the statute of limitations?
d) Does the harmless error statute, 28
U.S.C. § 2111, apply to the government’s
failure to issue a deficiency notice under
I.R.C. § 6213? If so, should it apply to the
taxpayers in this case?
(7) This court consolidates case nos. 2009-5008 and
2009-5009.
(8) This appeal will be heard en banc on the basis of
the originally filed briefs and additional briefing ordered
herein. The court will determine whether oral argument
is appropriate after reviewing the briefs. An original and
thirty copies of all originally-filed briefs shall be filed
within 20 days from the date of filing of this order. An
original and thirty copies of new en banc briefs shall be
filed, and two copies of each en banc brief shall be served
BUSH v. US 4
on opposing counsel. Plaintiff-Appellant, Lyman F. Bush
(individually and as personal representative of the Estate
of Beverly J. Bush) and Plaintiff-Appellant, Tommy J.
Shelton shall file a consolidated en banc brief. Plaintiffs-
Appellants’ en banc brief is due 45 days from the date of
this order. Defendant-Appellee’s en banc response brief is
due within 40 days of service of Plaintiffs-Appellants’ new
en banc brief, and Plaintiffs-Appellants’ consolidated
reply brief is due within 15 days of service of Defendant-
Appellee’s response brief. Briefs shall adhere to the type-
volume limitations set forth in Federal Rule of Appellate
Procedure 32 and Federal Circuit Rule 32.
(9) Briefs of amici curiae will be entertained, and any
such amicus briefs may be filed without leave of court or
the parties’ consent but otherwise must comply with
Federal Rule of Appellate Procedure 29 and Federal
Circuit Rule 29.
(10) If needed, oral argument will be held at a time
and date to be announced later.
FOR THE COURT
October 29, 2010 /s/ Jan Horbaly
—————————— ——————————
Date Jan Horbaly
Clerk
cc: Sallie W. Gladney, Esq.
Thomas E. Redding, Esq.
Andrew M. Weiner, Esq.