                                                          United States Court of Appeals
                                                                   Fifth Circuit
                                                                 F I L E D
                  IN THE UNITED STATES COURT OF APPEALS
                          FOR THE FIFTH CIRCUIT                 November 22, 2005

                                                            Charles R. Fulbruge III
                                                                    Clerk
                                 No. 01-60639
                              Consolidated with
                                 No. 01-60640
                                 No. 01-60641
                                 No. 01-60642



ESTATE OF ROBERT W. LISLE, Deceased; ESTATE OF DONNA M. LISLE,
Deceased,

                                         Petitioners-Appellants,

THOMAS W. LISLE, Independent Co-Executor; AMY L. ALBRECHT,
Independent Co-Executor,

                                         Appellants

     v.

COMMISSIONER OF INTERNAL REVENUE,

                                         Respondent-Appellee.

                            --------------------
                       Appeals of a Decision of the
                          United States Tax Court
                            --------------------

Before HIGGINBOTHAM and DeMOSS,* Circuit Judges.

PER CURIAM:

     Upon reconsideration by the panel of its mandate issued in

this case,1 under these unusual circumstances, in the interest of

fairness, and to prevent possible injustice, we recall the




     *
         By quorum.
     1
         341 F.3d 364 (5th Cir. 2003).
mandate, as requested by appellants.2

     Our mandate left open only the claim of tax deficiency to

allow only a recalculation of tax in light of our opinion.

Nothing in the events today persuading this court to recall its

mandate requires reexamination of our decision to reverse the

imposition of fraud penalties.         We are persuaded that in fairness

whether there is a deficiency owed ought to be reexamined in the

same manner as ordered by our colleagues of the Eleventh Circuit

in their most recent opinion in Ballard v. Commissioner,3 and we

REMAND the case to the Tax Court with orders to:

     (1) Strike the “collaborative report” that formed the
     basis of the Tax Court’s ultimate decision; (2)
     reinstate Judge Couvillion’s original report; (3) refer
     this case to a regular Tax Court judge who had no
     involvement in the preparation of the aforementioned
     “collaborative report” and who shall give “due regard”
     to the credibility determinations of Judge Couvillion,
     presuming that his fact findings are correct unless
     manifestly unreasonable[, in dealing with the remaining
     issues of tax deficiency]; and (4) Adhere strictly
     hereafter to the amended Tax Court Rule in finalizing
     Tax Court opinions.4

Appellants’ motion is GRANTED, the mandate is MODIFIED as herein

ordered, and the case is REMANDED in part for proceedings

consistent with this opinion and the mandate as recalled and

modified.




     2
         See United States v. Tolliver, 116 F.3d 120, 123 (5th Cir. 1997).
     3
         ___ F.3d ___, 2005 WL 2861593 (11th Cir. Nov. 2, 2005).
     4
         Id. at *13-*14.
