     Case: 09-60866     Document: 00511585815         Page: 1     Date Filed: 08/29/2011




            IN THE UNITED STATES COURT OF APPEALS
                     FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                     Fifth Circuit

                                                                            FILED
                                                                          August 29, 2011

                                     No. 09-60866                          Lyle W. Cayce
                                   Summary Calendar                             Clerk



EQUIPMENT HOLDING COMPANY, L.L.C.; RONALD J. ADAMS,

                                                  Petitioners - Appellees
v.

COMMISSIONER OF INTERNAL REVENUE,

                                                  Respondent - Appellant



                             Appeal from the Decision of
                             the United States Tax Court
                                    No. 18737-07


Before BENAVIDES, STEWART, and CLEMENT, Circuit Judges.
PER CURIAM:*
        Appellant Commissioner of Internal Revenue appeals from a final order
of the Tax Court. The sole issue presented is whether an understatement of
income resulting from an overstatement of the tax basis of sold property can
qualify as an omission from gross income giving rise to the extended, six-year
period for tax assessment. A panel of this Court has decided this question on
facts materially identical to the facts in the instant case and concluded that such


        *
         Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
   Case: 09-60866   Document: 00511585815     Page: 2   Date Filed: 08/29/2011



                                 No. 09-60866

an overstatement does not trigger the extended six-year assessment period in
the Tax Code, 26 U.S.C. § 6501(e)(1)(A). Burks v. United States, 633 F.3d 347
(5th Cir.), petition for cert. filed, (Aug 11, 2011)(NO. 11-178, 11A9).      The
argument presented by the Commissioner is foreclosed by our circuit precedent,
and the Commissioner recognizes the binding precedent, but nevertheless argues
that Burks was wrongly decided to preserve the issue in the event the Supreme
Court grants certiorari and reverses, vacates, or otherwise disturbs our decision
in Burks. This panel is bound by our precedent.
      The judgment of the Tax Court is AFFIRMED.




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