98 F.3d 1212
96 Cal. Daily Op. Serv. 7927, 96 Daily JournalD.A.R. 13,174Raymond A. MOOREFIELD, Petitioner-Appellant,v.COMMISSIONER, INTERNAL REVENUE SERVICE, Respondent-Appellee.
No. 96-70400.
United States Court of Appeals,Ninth Circuit.
Submitted to Motions Panel Oct. 8, 1996.Decided Oct. 30, 1996.Ordered Vacated Jan. 7, 1997.

Raymond A. Moorefield, San Clemente, California, pro se.
Gary R. Allen, United States Department of Justice, Washington, D.C., for respondent-appellee.
Appeal from the United States Tax Court.  Tax Ct. No. 17379-94.
Before:  BEEZER, KOZINSKI and KLEINFELD, Circuit Judges.

ORDER

1
Appellant's motion for leave to proceed in forma pauperis on appeal is GRANTED.  Appellant is a prisoner as defined in 28 U.S.C. § 1915(h), "seeking to ... appeal a judgment in a civil action or proceeding without prepayment of fees or security therefor."  28 U.S.C. § 1915(a)(2).  The Prison Litigation Reform Act of 1995 therefore applies.


2
Consequently, within 30 days of the date of this order, appellant shall file, and the institution in which he is incarcerated shall make available to him for filing, "a certified copy of the trust fund account statement (or institutional equivalent) for the prisoner for the 6-month period immediately preceding the ... notice of appeal."  28 U.S.C. § 1915(a)(2).  The Clerk is directed to assess, and the institution shall remit on the appellant's behalf, by that date, "an initial partial filing fee of 20 percent of the greater of (A) the average monthly deposits to the prisoner's account;  or (B) the average monthly balance in the prisoner's account for the 6-month period immediately preceding the filing of the complaint or notice of appeal."  28 U.S.C. § 1915(b)(1).  But if appellant "has no assets and no means by which to pay the initial partial filing fee" as so measured, then the initial partial filing fee shall be reduced to an amount which can be paid out of the prisoner's assets and trust fund account.  28 U.S.C. § 1915(b)(4).


3
The prisoner shall sign an authorization form, to be furnished him by the Clerk, authorizing the prison officials to collect and forward the initial partial filing fee and any subsequent payments.  "After payment of the initial partial filing fee, the prisoner shall be required to make monthly payments of 20 percent of the preceding month's income credited to the prisoner's account."  28 U.S.C. § 1915(b)(2).  The institution where the prisoner is incarcerated "shall forward payments from the prisoner's account to the clerk of the court each time the amount in the account exceeds $10 until the filing fees are paid."   Id.


4
If appellant complies with the preceding portions of this order, then briefing shall proceed as follows:  Appellant's opening brief shall be due December 18, 1996, appellee's answering brief January 17, 1997, and appellant's reply brief, which is optional, may be filed within 14 days after service of appellee's answering brief.  If appellant does not so comply, then the appeal shall be dismissed automatically by the Clerk under Ninth Circuit Rule 42-1.

ORDER
Jan. 7, 1997

5
The order filed on October 30, 1996 is vacated.

