                            In the
    United States Court of Appeals
                For the Seventh Circuit
                          ____________

Nos. 01-4316, 01-4317, 01-4318, 01-4319,
     01-4320, 01-4321, 01-4322 & 02-1220
ESTATE OF BURTON W. KANTER,
JOSHUA S. KANTER, and NAOMI KANTER,
                                         Petitioners-Appellants,
                                v.

COMMISSIONER OF INTERNAL REVENUE,
                                          Respondent-Appellee.

                          ____________
             Appeals from the United States Tax Court.
             Nos. 712-86, 1350-87, 31301-87, 33557-87,
                   3456-88, 32103-88 & 26251-90
                          ____________
       On Remand from the Supreme Court of the United States
                          ____________
      SUBMITTED APRIL 20, 2005—DECIDED MAY 9, 2005
                      ____________



    Before CUDAHY, KANNE and EVANS,* Circuit Judges.
  PER CURIAM. The certified copy of the Supreme Court
judgment in Estate of Burton W. Kanter v. Commissioner of


*
  Upon reinstatement of this case Chief Judge Joel M. Flaum was
replaced by Judge Terence T. Evans.
2                 Nos. 01-4316, 01-4317, 01-4318, 01-4319,
                       01-4320, 01-4321, 01-4322 & 02-1220

Internal Revenue, No. 03-1034, was issued no earlier than
25 days after the release of its opinion in Kanter on March
7, 2005. The certified copy of the judgment was filed with
this court on April 12, 2005. That judgment reversed our
decision and remanded this case for further proceedings. In
accordance therewith, on April 12, 2005, we vacated our
decision and reinstated this appeal.
  Circuit Rule 54 provides in part that “counsel for the par-
ties shall, within 21 days after the issuance of a certified
copy of the Supreme Court’s judgment . . ., file statements
of their positions as to the action which ought to be taken
by this court on remand.”
  Inconsistent with Rule 54, and before the reinstatement
of this appeal on April 12, 2005, the parties filed the fol-
lowing: on March 11, 2005, Estate of Kanter filed “Motion
to Supplement the Record on Appeal” (requesting an order
of production directed to the Tax Court regarding the Special
Trial Judge Report; requesting the record on appeal to be
supplemented with that report; and, requesting that this
court set a schedule for briefing the merits of the appeal in
light of the report); on March 24, 2005, the Commissioner
of Internal Revenue (“CIR”) filed “Commissioner’s Motion
to Remand, and Response to Taxpayer’s Motion to
Supplement Record” (requesting that the case be remanded
to the Tax Court for further proceedings consistent with the
Supreme Court’s decision); on March 25, 2005, Estate of
Kanter filed “Reply in Support of Motion to Supplement the
Record on Appeal and Response to Motion to Remand”; on
April 1, 2005, CIR filed “Commissioner’s Reply to Appel-
lant’s Response to Commissioner’s Motion to Remand”; and,
on April 5, 2005, Estate of Kanter filed “Motion to File
Surreply in Response to Motion to Remand.”
  Notwithstanding, however, the filing of the aforementioned
pleadings prior to reinstatement of this appeal in this court,
Nos. 01-4316, 01-4317, 01-4318, 01-4319,                  3
     01-4320, 01-4321, 01-4322 & 02-1220

and the parties’ failure to adhere to the provisions of Circuit
Rule 54, we will treat the pleadings as filed post-April 12,
2005, and consider them as statements of position submitted
pursuant to Circuit Rule 54.
  We decline the invitation of the Estate of Kanter to trun-
cate this case by foregoing a remand to the United States
Tax Court. The Estate of Kanter’s request for an order of
production, request to supplement the record, and request
for additional briefing are denied. The Estate of Kanter’s
request to file a surreply is denied.
  On consideration of the position statements, we order this
case REMANDED to the United States Tax Court for further
proceedings consistent with the Supreme Court’s decision
in Estate of Burton W. Kanter v. Commissioner of Internal
Revenue, No. 03-1034.




  CUDAHY, Circuit Judge, dissenting. Having been the dis-
senter in the earlier consideration of this case, I would
much prefer now to join my colleagues in making a proper
disposition in accordance with the Supreme Court’s re-
versal. However, I find that I cannot concur in the course
now being adopted.
  The essential issue in this case was whether the Tax Court
was within its rights in refusing to include in the record on
appeal the report of the special tax court judge who pre-
sided over the trial. The Supreme Court has now decided
that the rules of the Tax Court do not authorize the sup-
pression of this document. This report must be included in
the record, and I see no reason why it cannot be produced
without further delay. It was improperly withheld, and that
nondisclosure ought to cease—now.
4                  Nos. 01-4316, 01-4317, 01-4318, 01-4319,
                        01-4320, 01-4321, 01-4322 & 02-1220

   The Commissioner argues that the Court also disapproved
the “collaborative” procedure followed by the Tax Court in
dealing with the special trial judge’s report. Therefore,
apparently before the undisclosed report is produced, the
Commissioner seeks a remand so the Tax Court can some-
how deal with the Supreme Court’s disapproval of its pro-
cedure. But this seems to me to put the cart before the
horse. The “collaborative” procedure was only adopted in
light of the decision to keep the report secret, in order to
deal with the requirement that the findings of the report be
granted due deference. There would have been no need for
a “collaborative” procedure had there been no decision to
keep the report secret, and it is this secrecy from which all
other purported improprieties spring.
  There may or may not be need for a remand here, so that
the Tax Court may adopt some unspecified measures for
somehow correcting the “collaborative” procedure. I perhaps
could be persuaded of such a need if the Commissioner were
more specific in indicating exactly how the process of
correction would proceed and what purpose it would further.
However, I am not persuaded that any requirement to undo
the “collaborative” procedure is an adequate excuse for re-
fusing at this late date to produce the report. Other prob-
lems in this case all flow from the unfortunate decision to
refuse to disclose the report, and I believe that error should
be rectified without further delay.
    I therefore respectfully dissent.
Nos. 01-4316, 01-4317, 01-4318, 01-4319,             5
     01-4320, 01-4321, 01-4322 & 02-1220

A true Copy:
      Teste:

                      ________________________________
                      Clerk of the United States Court of
                        Appeals for the Seventh Circuit




                  USCA-02-C-0072—5-9-05
