Error: Bad annotation destination
 United States Court of Appeals for the Federal Circuit

                                      05-5014


                        COMPUTERVISION CORPORATION,

                                                    Plaintiff-Appellant,

                                          v.


                                 UNITED STATES,

                                                    Defendant-Appellee.



        John S. Brown, Bingham McCutchen LLP, of Boston, Massachusetts, argued for
plaintiff-appellant. With him on the brief were George P. Mair, Donald-Bruce Abrams
and Matthew D. Schnall.

     Bruce R. Ellisen, Attorney, Tax Division, United States Department of Justice, of
Washington, DC, argued for defendant-appellee. With him on the brief were Eileen J.
O’Connor, Assistant Attorney General; Richard T. Morrison, Deputy Assistant Attorney
General; and Gilbert S. Rothenberg and Francesca U. Tamami, Attorneys.

Appealed from: United States Court of Federal Claims

Judge Marian Blank Horn
 United States Court of Appeals for the Federal Circuit

                                        05-5014

                         COMPUTERVISION CORPORATION,

                                                              Plaintiff-Appellant,

                                            v.


                                   UNITED STATES,

                                                              Defendant-Appellee.

                           ___________________________

                           DECIDED: August 30, 2006
                           ___________________________


            SUPPLEMENTAL OPINION ON PETITION FOR REHEARING


Before NEWMAN, RADER, DYK, Circuit Judges.

PER CURIAM.

      Computervision Corporation (“Computervision”) petitions for rehearing en banc.

The government by letter requests that we correct an error in our original opinion. We

reaffirm our earlier decision affirming the decision of the United States Court of Federal

Claims, in which we denied Computervision’s claims for interest suspension and interest

netting. Computervision Corp. v. United States, 445 F.3d 1355 (Fed. Cir. 2006).

      In its petition for rehearing, Computervision challenges our denial of its interest

suspension claim on several grounds, but does not seek rehearing on the interest

netting issue. However, in a May 25, 2006, letter, the government informed us that the
interest netting portion of our opinion contained an apparent error, due largely to an

error in the government’s brief.

       In our original decision, we held that Computervision failed to satisfy the

requirement for retroactive application of the interest netting statute because under our

decision in Federal National Mortgage Association v. United States, 379 F.3d 1303,

1311 (Fed. Cir. 2004) (“FNMA”), the statute applies retroactively only if the statute of

limitations is open with respect to both the underpayment and overpayment.

       With respect to the underpayment interest limitations period based on

representations contained in the government’s brief, our opinion stated:

       A claim for a refund of paid underpayment interest is barred if not filed
       within the later of three years from the date the return was filed or two
       years from the date the interest was paid. 26 U.S.C. § 6511. The
       underpayment interest in this case is the 1982 deficiency interest, which
       was paid on April 28, 1989. The limitations period for the underpayment
       closed two years later, on April 28, 1991 . . . .

Computervision, 445 F.3d at 1373-74.

       With respect to the overpayment interest limitation period, we stated:

       A claim for interest from overpayments must be filed within six years after
       the due date of the return that gave rise to the overpayment interest. See
       28 U.S.C. § 2401 (2000). In Computervision’s case, the overpayment
       limitations periods expired on March 15, 1989, for the 1982 tax year;
       March 15, 1990, for the 1983 tax year; and August 2, 1991, for the 1984
       tax year.

Computervision, 445 F.3d at 1374. The government states that the overpayment

portion of the opinion is not correct and suggests revising it to read as follows:

       A suit for interest from overpayments must be filed within six years after
       the date on which the refund or credit of the overpayment was allowed,
       i.e., the date on which the IRS authorized the scheduling of an
       overassessment. See 28 U.S.C. § 2401 (2000); 26 U.S.C. § 6407; Barnes
       v. United States, 133 Ct. Cl. 546, 548-49, 137 F.Supp. 716, 718-19
       (1956); General Instrument Corp. v. United States, 33 Fed. Cl. 4, 8 (1995);



05-5014                                     2
      Rev. Rul. 56-506, 1956-2 C.B. 959; Rev. Proc. 99-43, § 4.02(2), 1999-2
      C.B. 579. In Computervision’s case, the overpayment limitations periods
      expired on October 24, 1989, for the 1982 tax year; November 5, 1990, for
      the 1983 tax year; and August 2, 1991, for the 1984 tax year. All these
      periods were closed as of the July 22, 1998, critical date specified in §
      3301(c)(2).

Government’s Letter of Counsel at 1-2 (May 25, 2006).

      In a June 9, 2006, letter, we invited Computervision to respond to the

government’s proposed revision.        In response, Computervision urged that the

government’s proposed revision was based on “unsupported factual assumptions,”

because the record does not contain the documents necessary to ascertain “the date on

which the IRS authorized the scheduling of an overassessment.”          Computervision’s

Response at 1 (June 14, 2006).

      We need not resolve the question of when the overpayment limitations periods

expired, because under our decision in FNMA, both the overpayment and

underpayment limitations period must remain open on July 22, 1998, in order for the

interest netting statute to apply retroactively. See FNMA, 379 F.3d at 1311. Our earlier

opinion concluded that the limitations period on Computervision’s claim for

underpayment interest expired on April 28, 1991, long before the July 22, 1998, critical

date specified in section 3301(c)(2).1    Nothing in the government’s letter calls that

conclusion into question.

      However, Computervision also contends that the applicable statute of limitations

as to both overpayments and underpayments remains open within the meaning of the



      1
               A claim for credit or refund of paid underpayment interest is barred if not
filed within the later of three years from the date the return was filed or two years from
the date the interest was paid. 26 U.S.C. § 6511 (2000).



05-5014                                    3
statute while a lawsuit is pending before the Tax Court or the Court of Federal Claims.

Computervision’s Response at 2 (June 14, 2006).         This issue was not raised in

Computervision’s petition for rehearing. In any event, we rejected this argument in our

original decision, and we see no reason to revisit it. See Computervision, 445 F.3d at

1374.

        Computervision’s other contentions with respect to our decision on the interest

suspension claim are without merit.        Accordingly, Computervision’s petition for

rehearing is denied.




05-5014                                   4
