              Case: 14-11959    Date Filed: 12/22/2016   Page: 1 of 4


                                                                        [PUBLISH]



               IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT
                         ________________________

                                No. 14-11959
                          ________________________

                     D.C. Docket No. 1:13-cv-23998-CMA



DONALD KIPNIS,
LAWRENCE KIBLER,
KENNETH A. WELT
As Chapter 7 Trustee of the Estate of Donald Kipnis,

                                                             Plaintiffs-Appellants,

                                      versus

BAYERISCHE HYPO-UND VEREINSBANK, AG,
a corporation,
a.k.a. Unicredit Bank AG,
HVB U.S. FINANCE, INC.,
n.k.a. Unicredt U.S. Finance, Inc.

                                                            Defendants-Appellees.

                          ________________________

                  Appeal from the United States District Court
                      for the Southern District of Florida
                        ________________________

                               (December 22, 2016)
                 Case: 14-11959      Date Filed: 12/22/2016       Page: 2 of 4


Before HULL, BLACK and MELLOY, * Circuit Judges.

PER CURIAM:

       The facts of this case are more fully set out in this Court’s prior opinion.

See Kipnis v. Bayerische Hypo-Und Vereinsbank, AG, 784 F.3d 771 (11th Cir.

2015). By way of brief review, the plaintiffs and defendants Bayerische Hypo-

Und Vereinsbank, AG and HVB U.S. Finance, Inc. (collectively, “HVB”)

participated in a tax-shelter scheme known as CARDS. Id. at 773-75. The

CARDS transaction at issue took place from December 2000 until December 2001.

Id. at 774-76.

       In October 2007, after HVB publicly admitted fault for participating in

CARDS schemes, the Internal Revenue Service (“IRS”) issued notices of tax

deficiency to the plaintiffs. Id. at 776. On November 1, 2012, the United States

Tax Court issued a decision against the plaintiffs, concluding, inter alia, that the

CARDS transaction they had engaged in “lacked economic substance.” Id. at 776-

77.

       On November 4, 2013, the plaintiffs filed a diversity complaint against HVB

in federal district court, raising various state-law claims and alleging that HVB and

its co-conspirators defrauded them by promoting and selling CARDS transactions

for their own financial gain. Id. at 773, 777. The district court dismissed the

       *
        Honorable Michael J. Melloy, United States Circuit Judge for the Eighth Circuit, sitting
by designation.
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complaint as barred by Florida’s four- and five-year statutes of limitation. Id. at

777-78. On appeal, we certified the following question to the Florida Supreme

Court:

         UNDER FLORIDA LAW AND THE FACTS IN THIS CASE, DO
         THE CLAIMS OF THE PLAINTIFF TAXPAYERS RELATING TO
         THE CARDS TAX SHELTER ACCRUE AT THE TIME THE IRS
         ISSUES A NOTICE OF DEFICIENCY OR WHEN THE
         TAXPAYERS’ UNDERLYING DISPUTE WITH THE IRS IS
         CONCLUDED OR FINAL?

Id. at 783.

         In response, the Florida Supreme Court held that “the plaintiff taxpayers’

claims accrued at the time their action in the tax court became final. That action

became final ninety days after the tax court’s judgment, at the expiration of the

time period for an appeal of that judgment.” Kipnis v. Bayerische Hypo-Und

Vereinsbank, AG, 202 So. 3d 859, No. SC15-740, 2016 WL 6539470, at *1 (Fla.

Nov. 3, 2016); see also id. at *8 (holding that the plaintiff taxpayers’ “claims

accrued at the time their action in the tax court became final, following expiration

of the ninety-day time period for appealing the tax court’s judgment”).

         In light of the Florida Supreme Court’s response, we conclude that the

district court erred in dismissing the plaintiffs’ complaint as time-barred. Under

the Florida Supreme Court’s interpretation, the applicable statutes of limitation did

not begin to run until January 30, 2013, which is 90 days after the tax court’s

November 1, 2012 judgment. Therefore, the plaintiffs’ complaint, filed on
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November 4, 2013, was timely. We reverse the district court’s judgment and

remand for further proceedings consistent with this opinion.

      REVERSED AND REMANDED.




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