                                 United States Court of Appeals,

                                         Eleventh Circuit.

                                           No. 96-3603.

                        J.J. ZAND and Eva Zand, Petitioners-Appellants,

                                                 v.

       COMMISSIONER OF INTERNAL REVENUE SERVICE, Respondent-Appellee.

                                          June 15, 1998.

Appeals from a Decision of the United States Tax Court. (Tax Court Nos. 32434-88 and 32435-88),
Howard Dawson, Jr., Judge.

Before BLACK, Circuit Judge, and HILL and HENDERSON, Senior Circuit Judges.

       HILL, Senior Circuit Judge:

       J.J. Zand and his wife, Eva C. Zand,1 appeal from a 272-page Tax Court decision2 issued by

Judge Howard Dawson in 1996, regarding a ten-day trial presided over by Judge Meade Whitaker

five years earlier. The tax years involved in their two consolidated cases date back to 1972-1981.

The sole issue for our review is whether the Tax Court violated the taxpayers' rights to due process

and to a fair trial, and committed clear error, by reassigning their cases to successor Judge Dawson

to write the opinion after presiding Judge Whitaker retired on permanent disability.3


   1
    Collectively, Mr. and Mrs. Zand will be referred to as "taxpayers." They received statutory
notices of deficiency in income taxes from the Commissioner of Internal Revenue
(Commissioner) for the years 1978 through 1981. Singularly, Mr. Zand will be referred to as
"Zand." He received statutory notices of deficiency for the years 1972 through 1977.
   2
    The Tax Court decision determined income tax deficiencies against Zand of $9,030,576.98,
together with fraud ($4,250,615.33) and negligence ($63,821.68) penalties for 1972-1977. It
determined income tax deficiencies against taxpayers for the years 1978-1981 of $987,579.00,
together with a negligence penalty of $49,378.95.
   3
   We affirm without opinion the two remaining issues presented, which are: (1) whether the
Tax Court correctly found that Zand, individually, earned certain unreported income, and not
       Upon a careful review of the record, we conclude that the taxpayers waived their right to a

new trial, both by failing to request one, and by indicating that a new trial would cause them

hardship. As the taxpayers' constitutional rights were not violated, we affirm the judgment of the

Tax Court.

                     I. FACTUAL AND PROCEDURAL BACKGROUND4

       Zand was born in Iran in 1923. In 1953, he became a United States citizen. By the mid-

1950's, Zand had already begun a long and seemingly successful career as an international

entrepreneur. In 1958, Zand, together with his father and a classmate, formed the Diesel Power

Trading Company (Diesel Power) in Iran. By 1972, Zand had acquired 100% of Diesel Power.5

Over the years, many business relationships were formed and transactions made among Zand, Diesel

Power, and the Caspian Trading Company (CTC), Zand's sole proprietorship6 and various American

manufacturers (such as Lockheed Aircraft Corporation, Ashland Bermuda Limited, General Motors,

and Ingersoll-Rand Company). Business transactions typically involved the provision of services

by Zand and/or his companies to the American manufacturer, generating commission income to

Zand and stimulating the sales of American manufactured goods abroad, principally to Iran.


various other entities; and (2) correctly imposed the addition to tax for fraud penalty under
Internal Revenue Code § 6653(b) for the years 1972-1976. See 11th Cir. R. 36-1.
   4
    We present only a cryptic factual background pertinent to the due process issue addressed in
this opinion. For further factual background, we direct the reader to Judge Dawson's lengthy
memorandum opinion, unofficially reported at Zand v. Commissioner, 71 T.C.M (CCH) 1758
(1996).
   5
   In October 1974, he sold fifty-one percent to his sister and brother-in-law. He sold the
remainder in 1977.
   6
    In the early years, the CTC acted as a liaison between the Caspian Trading Company of Iran
(Caspian Iran), in which Zand had no interest, and certain American manufacturers with which
Zand had a business relationship. Caspian Iran imported American equipment into Iran and was
the Iranian distributor of American products in Iran. Zand severed his ties with Caspian Iran in
1957.
       The Commissioner of Internal Revenue (Commissioner) audited Zand's tax returns for the

years at issue, asserted fraud and negligence penalties, questioning who earned certain commissions

from various manufacturers and the deductibility of numerous business expenses. The result of the

Commissioner's audit was that Zand failed to report millions of dollars of commission income and

that his alleged failure to do so was fraudulent. She originally issued statutory notices of deficiency

of $11,634,023.28, together with fraud ($4,660,681.33) and negligence ($89,987.40) penalties.7 The

taxpayers filed petitions in the Tax Court, seeking a redetermination of their income tax liabilities.

       The cases were assigned to Judge Whitaker in October 1989 for trial or other disposition.

After extensive discovery by both parties, the cases were tried in August 1991. The trial lasted ten

days. Zand and twenty-one other witnesses testified during his case in chief. The Commissioner

called ten witnesses. At the conclusion of the trial, Judge Whitaker made the following statements

from the bench:

       What I particularly want both sides to do—and I think this is of more concern to you Mr.
       Curtin [taxpayers' counsel], than Ms. Herbert [Commissioner's counsel]—maybe I should
       preface this by saying that it is my recollection of the testimony, and this is not a decision
       on my part, but my present recollection of the way the testimony came before me, Mr.
       Curtin, you made a very strong case for your client.

               I don't mean any criticism of Ms. Herbert, but I think your witnesses all supported
       your client's position, and frankly I don't think Ms. Herbert's witnesses did any appreciable
       damage. And again, this is purely from recollection.

               ....

               Ms. Herbert, as I indicated, I think [taxpayers'] case is a very strong case....

               ....

       And if I were you [Ms. Herbert], I wouldn't waste a whole lot of time on that argument [of
       fraud]. I don't think this is a fraud case, frankly. Understand again, this is just my reaction


   7
   The Commissioner, in her amended answer, increased the deficiencies and fraud penalties by
$470,149.90, and $235,074.95, respectively.
       today after listening to two weeks and one day of testimony, but I don't believe you've
       proved fraud....

               ....

               You're perfectly—obviously, you can argue it [fraud]. You should argue it. But
       point out those parts of the record which you think support fraud, because I have some
       trouble with it. I don't think this ought to have been a fraud case to start with.

       Final briefs were filed in June 1993. Judge Whitaker had not disposed of the cases when he

retired on permanent disability in January 1995.

       In February 1995, Chief Judge Hamblen issued the following order:

       Judge Meade Whitaker, to whom these cases are submitted is fully retired as of January 31,
       1995. The Court proposes to reassign these cases to another Judge of this Court for purposes
       of preparing the opinion in these consolidated cases. Upon due consideration, it is

       ORDERED that the parties on or before March 3, 1995, file with the Court a response, if
       any, to such reassignment. The Court will thereupon take such action as it deems
       appropriate.

       The Commissioner agreed to the reassignment.8 Taxpayers filed their response, requesting

a status conference with the Chief Judge, yet stating that they were not in a position to make an

informed decision on the Court's proposal to reassign.9


   8
    The Commissioner stated that:

               [T]he [Commissioner] agrees with the Court's proposal to assign these cases to
               another Judge of the Court for opinion.... [I]n the event that the Court, or the
               Judge to whom the cases are assigned, wishes to consider that judicial action after
               reassignment would encompass further actions other than preparation of the
               opinion, the [Commissioner] requests an opportunity to provide her views on any
               expanded scope of consideration.
   9
    The taxpayers stated that they were:

               [C]urrently engaged in the process of evaluating the legal implications,
               consequences, possible alternatives and potential prejudicial impact of the court's
               proposal to reassign these cases to a judge who did not preside over the
               comparatively long and heavily factual trial of this case. The retirement of Judge
               Whitaker and the potential reassignment to a new judge at this point in these cases
        In Part III of the taxpayers' response, entitled "The Taxpayers' Dilemma"10 they stated:

                As will be explained in more detail during the status conference, if the Court grants
        our request, the expense of the trial of this case four years ago, the passage of time since the
        trial, and the occurrence of a number of events since the trial, have combined to put Mr.
        Zand in a position where he cannot financially afford to retry this case. The first trial was
        a financial blow to the taxpayers. Following the expense and effort of trying this case, Mr.
        Zand's finances quickly worsened. First, he lost his business to a lender. Then, he and his
        family lost their home to a foreclosing bank. Unsurprisingly, Mr. Zand's finances have been
        sapped by this matter since the audit that ultimately led to this litigation started in the late
        1970s.

                The effort and expense of putting on the same case presented four years ago would
        be very difficult to duplicate. Mr. Zand called 20 witnesses in his case-in-chief, some of
        them from other countries and others from distant locations within the United States.
        Moreover, Mr. Zand is now 72 years old [in 1995] and certainly not in the same health he
        was in 1991 when he was able to attend every minute of the trial and testified for hours on
        direct and cross-examination. Under the unique circumstances presented here, no taxpayer
        should be asked or required to retry a case of this magnitude. Additionally, no taxpayer
        should be deprived of the right to have a case of this size and factual character decided by
        the judge who heard it. The [taxpayers] did not bring this dilemma on themselves and they
        should not be penalized or prejudiced by it.



               are unexpected and unusual events that must be carefully and fully evaluated to
               ensure that the taxpayers are given every opportunity to understand what has
               happened and what their rights are. The [taxpayers] need additional time and
               information before they can make final and informed decisions on the matters
               raised in the February Order [proposing reassignment].

                       In order to assist [taxpayers] in deciding whether to object or not to the
               reassignment proposed in the aforementioned Order and to assist them in
               evaluating possible alternative solutions to the unwelcome dilemma that now
               surrounds them, [taxpayers] believe that the interests of justice require that a
               status conference be scheduled with the Chief Judge before any action is taken on
               these cases.... In [taxpayers'] view, such a conference serves the interests of
               justice and is consistent with appropriate case management principles. At this
               conference counsel would be prepared to discuss and seek guidance on the
               proposed reassignment, including its scope and legal implications, as well as
               alternative approaches, if any, that may assist in protecting the taxpayers from the
               substantial prejudicial impact of the loss of the judge who tried the case as the
               decision maker in this very factual case....
   10
   From a trial strategy standpoint, the depth of taxpayers' dilemma goes even further. Judge
Whitaker's comments from the bench apparently gave the taxpayers every cause to believe they
would be victorious, at least on the fraud issue.
(Emphasis added.)

        In March 1995, Chief Judge Hamblen issued an order directing counsel for the parties to

appear for a status conference on April 5, 1995. In hindsight, and, unfortunately for all concerned,

the April 5, 1995, status conference was not stenographically reported or otherwise recorded.11 It

was attended by Chief Judge Hamblen, Judge Dawson, and counsel for the respective parties. The

Commissioner's recollection of events is that the Chief Judge explained the three options available:

(1) retrial before another judge if requested by either party; (2) reassignment of the cases to another

judge for disposition on the existing record; or (3) settlement. Commissioner claims that neither

party requested a new trial at the status conference. She suggested that the taxpayers submit an

offer-in-compromise.12 This recollection appears to align with that of Judge Dawson who writes:

"At an informal conference with counsel for the parties on Apr. 5, 1995, the parties were offered a

new trial, which was not accepted, and it was suggested that efforts be made to settle the cases."

Zand v. Commissioner, 71 T.C.M. (CCH) 1758, 1764 n. 1(1996).

        Taxpayers, on the other hand, claim that the focus of the status conference was settlement,

not retrial or reassignment. They claim in their brief that:

        [A]t the status conference, the Tax Court briefly outlined possible solutions available to the
        parties and the Tax Court, including particularly settlement. The Tax Court stated that it
        preferred that the parties settle the case so that the Tax Court would not have to expend
        further time and judicial resources on the case. The discussion then focused on the best way


   11
     Informal status conferences, however, are not required to be stenographically reported or
otherwise recorded. See Tax Ct. R. 150. In the record on appeal, the closest memorialization of
the events which transpired at the April 5, 1995, status conference appears to be the
Commissioner's [undated] memorandum to the file, which appears as the fifth document attached
to the taxpayers' "Motion For Production of the Record of Proceedings of the April 5, 1995
Conference with the Court."
   12
    The record reflects that the taxpayers, citing financial difficulties, and a net worth of
approximately $1.5 million, offered the Commissioner $250,000 to settle their cases. Their offer
was rejected. By this time [1995], proposed taxes and penalties approached $20 million.
        of exploring the possibility of settlement.

(Emphasis added.)

        In October 1995, following the parties' failure to settle, see note 12 supra, Chief Judge

Hamblen assigned the cases to Judge Dawson.13 In November 1995, taxpayers filed an objection

to the reassignment of the cases but again did not request a new trial. In January 1996, Judge

Dawson issued his opinion. He ultimately found that Zand: (1) had substantially understated his

taxable income for the years 1972 through 1977; (2) had substantially overstated his business

expenses and deductions for the years 1973 through 1981; and (3) had made such omissions and

overstatements with fraudulent and negligent intent. Roughly, the opinion reflects an approximate

finding of 80% for the Commissioner and 20% for the taxpayers.

        In March 1996, taxpayers filed a motion for reconsideration. In its order denying taxpayers'

motion, the court stated:

                 A very disturbing statement is made in the motion by [taxpayers'] counsel that the
        "parties were not offered a new trial" at the chambers conference, requested by them, on
        April 5, 1995. That statement is conspicuously incorrect and contrary to fact. At the April
        5, 1995, conference Chief Judge Hamblen informed counsel that Judge Whitaker had retired
        on permanent disability and that he could not be recalled to prepare an opinion deciding the
        issues in these cases. Chief Judge Hamblen clearly explained that three options existed
        [retrial, reassignment, settlement]. Because the parties were offered, and declined, a new
        or further trial, that option was eliminated. The right to a new or further trial was waived
        by both parties.... [Taxpayers] now seek either an opinion and decision by Judge Whitaker,
        which of course is not possible, or a decision totally in their favor, based predominantly on
        the testimonial evidence to the exclusion of the voluminous documentary evidence, which
        we are unwilling to give them....

(Emphasis added.)

        In May 1996, taxpayers filed a motion to dismiss their cases upon the ground that they had



   13
     Although Judge Dawson had read the briefs (at the Chief Judge's request), there was no
implication at the April 5, 1995, status conference that the cases would go to Judge Dawson if
reassigned.
been denied procedural due process. In its order of denial, the Tax Court stated:

        We emphasize again that both parties were told by then Chief Judge Hamblen at the April
        5, 1995, informal status conference, requested by [taxpayers'] counsel, that the Court would
        grant a new or further trial of these cases if requested by either party. Both Judge Hamblen
        and Judge Dawson are certain that Mr. Curtin stated that [taxpayers] were unwilling to retry
        the cases, primarily because of the age, health, and financial condition of [Zand].... It is the
        Court's view that the parties were offered a new trial and they did not accept it. Therefore,
        we think the right to a new trial was waived. To this day [June 12, 1996] the Court has not
        received any request, formal or informal, or any motion for a new trial from either party....

               ....

                Because of Judge Whitaker's physical ailments it was not possible for him to decide
        these cases before it became necessary to retire on permanent disability.... It strikes the
        Court as incongruous that [taxpayers], who apparently were aware of Judge Whitaker's
        health problems, have leveled their criticism of him for delay in the opinion process, while
        contending, at the same time, that only Judge Whitaker can fairly decide these cases.

(Emphasis added.)

        Thereafter, in June 1996, the taxpayers moved that the Tax Court provide them with any

record that might exist of the April 5, 1995, status conference. In its denial, the court stated:

                 The conference was informal.... There was no official stenographic reporting of the
        ... informal status conference. It was not a hearing or a trial. Any unofficial, internal Court
        documents, including memorandums or notes by Judges or employees, that may exist are,
        of course, confidential and not subject to production.... In short, [taxpayers] have never
        requested or moved for a new trial of these cases. Apparently they are now attempting to
        put themselves in a position where they can disavow their previous declination. The plain
        fact of the matter is that they declined to retry these cases.

(Emphasis added.)14

        In September 1996, taxpayers filed a motion to vacate the decisions and for a new trial. It


   14
     The Court, in an opinion co-signed by the Chief Judge, went on to sternly admonish counsel
for the taxpayers for making allegations regarding "the Court's candor and credibility which are
inconsistent with what occurred.... Mr. Curtin [taxpayers' counsel] related at the conference that
a new trial was not a viable option and was not sought.... Correlatively, we note that Mr. Curtin
is not a signatory to any of the post-opinion motions which attack the Court's credibility and
denigrate its integrity. We do not take these aspersions lightly. Thus, any further action in this
respect will be treated as frivolous, invidious, and for purposes of vexatious delay that could
result in the imposition of appropriate sanctions."
was denied. The taxpayers now appeal Judge Dawson's January 1996 opinion.

                                       II. ISSUE ON APPEAL

        Whether, after determining that taxpayers had declined its offer of a new trial, the Tax Court

violated the taxpayers' rights to due process and to a fair trial, and in so doing, committed clear error

when it reassigned their cases to a successor judge to write the opinion after the presiding trial judge

retired on permanent disability.

                                   III. STANDARD OF REVIEW

         The Tax Court's findings of fact are subject to reversal only if clearly erroneous.

Commissioner v. Duberstein, 363 U.S. 278, 291, 80 S.Ct. 1190, 1199-1200, 4 L.Ed.2d 1218 (1960);

Florida Hosp. Trust Fund v. Commissioner, 71 F.3d 808, 810 (11th Cir.1996). Whether taxpayers

waived their right to a new trial is a question of fact. See Johnson v. Zerbst, 304 U.S. 458, 464, 58

S.Ct. 1019, 1023, 82 L.Ed. 1461 (1938).

                                          IV. DISCUSSION

A. The Contentions of the Parties

                                           1. The Taxpayers

        The thrust of the taxpayers' argument is that Judge Whitaker, from the bench at the close of

trial, made oral findings of fact, especially relating to witness credibility and fraud, and those

findings constitute the law of the case. Tax Ct. R. 152(a). They claim that, as Judge Whitaker heard

the testimony of Zand and his witnesses, and observed first hand their demeanor on the witness

stand, Judge Dawson committed reversible error when he gave no due deference to Judge Whitaker's

findings. Taxpayers claim that, in rejecting these findings, Judge Dawson found them to be

inappropriate statements, approaching injudicious or prejudicial. In this implicit rejection of the

trial's testimonial evidence, taxpayers assert that Judge Dawson also committed reversible error by
deeming their witnesses not to be credible, not only as to the issue of fraud, but also as to issues

concerning the deductibility of expenses, the earning of commission income, and the asserted

negligence penalty. See Exxon Corp. v. United States, 931 F.2d 874, 878 (Fed.Cir.1991)(a successor

judge has no authority to amend his predecessor's findings if they are dependent upon weighing

conflicting testimony and evaluating witness credibility); Henry A. Knott Co. v. Chesapeake &

Potomac Tel. Co., 772 F.2d 78, 85 (4th Cir.1985)(deference should be given to the trier of fact as

the person who sees the witness and hears the testimony); Toussaint v. Commissioner, 743 F.2d

309, 312 (5th Cir.1984)("[d]ue regard shall be given to the opportunity of the trial court to judge the

credibility of the witnesses...."). Taxpayers claim that Judge Dawson compounded this error when

he drew negative inferences from various documents against Zand and his witnesses, all without

regard to their trial testimony or Judge Whitaker's view that their testimony was credible.

       The taxpayers contend that they did not consent to the reassignment. Emerson Elec. Co. v.

General Elec. Co., 846 F.2d 1324, 1326 (11th Cir.1988). They claim that a close scrutiny of the

record shows that Zand never declined an offer of a new trial. Once settlement discussions came

to an end, the taxpayers argue that the Tax Court gave them no opportunity to request a new trial.

They claim to be blind-sided by the court's opinion finding that Zand waived his right to a retrial

after the April 5, 1996, status conference and continue to dispute what transpired at the unrecorded

status conference.

                                       2. The Commissioner

       The Commissioner contends (contrary to taxpayers' claim that the Tax Court never offered

the parties a new trial and that the taxpayers never declined a new trial), that Chief Judge Hamblen,

at the April 5, 1995, status conference, explained that a new trial was one of the three options [in

addition to reassignment or settlement] available to the parties after Judge Whitaker retired. She
agrees with Judge Dawson's statement that taxpayers' claim that the parties were not offered a new

trial is "conspicuously incorrect and contrary to fact."

       In addition, the Commissioner claims that the taxpayers waived their right to a new trial even

before the status conference was held, by stating (in their pleading requesting a conference), that the

cost of the earlier trial and subsequent financial reverses had left taxpayer "in a position where he

cannot financially afford to retry this case" and that he was four years older and not in the same

health as he had been at the time of the trial.

       Further, the Commissioner claims that Judge Whitaker's oral statements from the bench were

not his findings of fact. She contends that oral findings would have been inappropriate as the

relevant facts and law of the case were not clear at the close of evidence and briefs had not been

filed. See Tax Ct. R. 152. She argues further that Judge Whitaker's comments were not binding,

even as to fraud, because they were substantially qualified ("this is not a decision on my part" ...

"this is just my reaction today"). The Commissioner claims that Judge Dawson was "well aware"

of these comments which he described as a "tentative and qualified reaction by the trial judge made

before a review of all the testimony and massive documentary evidence and before any briefs were

filed." Hence, Judge Whitaker's comments, the Commissioner avers, were of a preliminary or

tentative nature, not embodied in a ruling, and not binding.

       The Commissioner cites Milbrew, Inc. v. Commissioner, 710 F.2d 1302 (7th Cir.1983) in

support of her position. In Milbrew, the taxpayer's case was decided by a successor judge after

reassignment by the Tax Court. In its affirming opinion, the Seventh Circuit rejected the taxpayer's

attack upon the reassignment by stating:

       The Tax Court judge before whom the case was tried retired after the trial but before
       rendering his opinion. The taxpayers agreed that the case could be reassigned to another
       judge for decision on the record compiled before the first judge, and this was done. Having
       been willing to take their chances before the second judge they cannot complain because he
          decided the case against them. The first judge had made comments during the course of the
          trial that were very favorable to the taxpayers. The taxpayers were confident that his
          successor would be influenced by those comments and would decide for them. They were
          disappointed. Of course if he had decided for them they would be defending vigorously the
          procedure that was adopted. By consenting to the procedure they waived any objection.

(Emphasis added.)

Milbrew, 710 F.2d at 1308; see also W.R.B. Corp. v. Geer, 313 F.2d 750 (5th Cir.1963). The

Milbrew taxpayers consented to the reassignment procedure. The Seventh Circuit concluded that

they had waived any objection to that procedure and affirmed the judgment of the Tax Court.

B. In General

          Fed.R.Civ.P. 6315 provides:


   15
        Before it was amended, Rule 63 read as follows:

                  Disability of a Judge

                  If by reason of death, sickness, or other disability, a judge before whom an action
                  has been tried is unable to perform the duties to be performed by the court under
                  these rules after ... findings of fact and conclusion of law are filed, then any other
                  judge regularly sitting in or assigned to the court in which the action was tried
                  may perform those duties; but if such other judge is satisfied that he cannot
                  perform those duties because he did not preside at the trial or for any other reason,
                  he may in his discretion grant a new trial.

          The original text contained restrictions that contemplated withdrawal of a judge only
          after completion of the trial, and only by reason of death, sickness, or disability. 11
          Charles A. Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure
          § 2921. The 1991 amendments to Rule 63 broadened its scope considerably. Id. Before
          it was amended in 1991, Rule 63 applied only "after ... findings of fact and conclusions
          [were] filed" in a non-jury case. Id. After amendment, a provision was added allowing
          judges to withdraw for reasons other than death, sickness, or disability. Id. In addition,
          the rule now provides that a judge may withdraw at any time after a trial or hearing is
          commenced; the trial need not be completed for a substitute judge to be assigned. Id.
          The Advisory Committee Notes indicate that this change was made in view of the
          "increasing length of federal trials," "to prevent unnecessary expenses and delay." Id.;
          see also Canseco v. United States, 97 F.3d 1224, 1226 (9th Cir.1996) (citing Advisory
          Committee Notes to 1991 Amendment to Fed.R.Civ.P. 63).

                  Insofar as the factual circumstances of this case are concerned, all parties agree
        Inability of a Judge to Proceed

        If a trial or hearing has been commenced and the judge is unable to proceed, any other judge
        may proceed with it upon certifying familiarity with the record and determining that the
        proceedings in the case may be completed without prejudice to the parties. In a hearing or
        trial without a jury, the successor judge shall at the request of a party recall any witness
        whose testimony is material and disputed and who is available to testify again without undue
        burden. The successor judge may also call any other witness.

Although the Tax Court rules contain no parallel rule, the practice is substantially the same in the

Tax Court.16 See Tax Ct. R. 1; Townsend v. Gray Line Bus Co., 767 F.2d 11, 17-18 (1st Cir.1985).

        And, although Rule 63 was amended in 1991 and considerably broadened, the present rule

encompasses the former rule and more. See note 15 supra. We therefore look to pre-1991 decisions

for guidance given the facts of this case.

        Under pre-1991 Rule 63, if the judge became disabled after filing his findings of fact and

conclusions of law in a civil bench trial, the successor judge could substitute for the original judge

and complete any duties remaining in the case without holding a new trial. Home Placement

Service, Inc. v. Providence Journal Co., 819 F.2d 1199, 1202 (1st Cir.1987). The rule empowered

the successor judge to grant a new trial if the remaining duties would not otherwise be satisfactorily

performed. Id. The decision as to whether to hold a new trial was left to the discretion of the




        that the amendment works no change.
   16
     Here, in its order denying the taxpayers' post-opinion motion to dismiss, the Tax Court
stated:

               Although the Tax Court Rules of Practice and Procedure do not contain a rule
               similar to Fed.R.Civ.P. 63, this Court has followed the spirit of Rule 63 and used
               it to provide us with guidance. It has been our practice to grant a new or further
               trial, if requested by either party, when a judge who heard the case dies, becomes
               disabled, or resigns before preparing the findings of fact and opinion. However,
               if no such request is made, or if a new trial is offered and not accepted, the Court
               will reassign the case, even over the objection of a party, to another judge for
               disposition on the record made before the trial judge.
successor judge. Id. We conclude, after carefully reviewing the trial transcript, that Judge

Whitaker's comments were not findings of fact binding on Judge Dawson. Therefore historically,

Rule 63 did not explicitly apply to the circumstance present here, that is, where the presiding judge

in a bench trial became disabled before he filed his findings of fact and conclusions of law. The

application of the rule, however, is made implicitly, by negative inference. See Townsend, 767 F.2d

at 17-18. Courts found that if the presiding judge in a civil case became disabled (or died) before

issuing his findings of fact and conclusions of law, the successor judge was required to retry the

case. Id.; see Whalen v. Ford Motor Credit Co., 684 F.2d 272 (4th Cir.)(en banc), cert. denied, 459

U.S. 910, 103 S.Ct. 216, 74 L.Ed.2d 172 (1982);             Thompson v. Sawyer, 678 F.2d 257

(D.C.Cir.1982); In re Schoenfield, 608 F.2d 930, 934 (2d Cir.1979); Arrow-Hart, Inc. v. Philip

Carey Co., 552 F.2d 711, 712-13 (6th Cir.1977). An exception to the rule mandating a retrial was

made only if all parties agreed to allow the successor judge, in a non-jury action, make findings of

fact and conclusions of law based upon a prior, or stipulated record. Townsend, 767 F.2d at 17-18

(citing Milbrew, 710 F.2d at 1308); Whalen, 684 F.2d at 278; Thompson, 678 F.2d at 268-69;

Arrow-Hart, Inc., 552 F.2d at 712-13. This circuit followed suit. Emerson Elec., 846 F.2d at 1326

("When a judge has yet to make findings of fact and conclusions of law, a successor judge must retry

the case unless (1) all parties consent to resolution based on the trial transcript or (2) summary

judgment would be appropriate ...."); see also Mesa Petroleum Co. v. Coniglio, 787 F.2d 1484, 1488

(11th Cir.1986), cert. denied, 479 U.S. 1031, 107 S.Ct. 876, 93 L.Ed.2d 830 (1987).

       Taxpayers claim the consent exception is not applicable here. They seek to distinguish their

case from the Townsend line of cases on the ground that they did not consent to the reassignment

of these cases to Judge Dawson. Townsend, however, is very much on point. 767 F.2d at 17-18.

       In Townsend, the First Circuit was sympathetic with Gray Line Bus Company, the appellant,
as constitutional considerations, as well as the implication of Rule 63, would ordinarily accord

litigants such as Gray Line a new trial where the previous judge had died or become disabled before

filing his findings and rulings. However, Gray Line's own conduct caused the court's sympathy to

rapidly dissipate:

       Thus, but for the conduct of Gray Line, the case should have been retried. Here, however,
       we are satisfied that Gray Line waived its right to a new trial by failing to appear at the status
       conference, by failing to respond when Townsend's counsel later notified it that the court
       would likely proceed on the basis of the old record, and by neglecting to respond or
       communicate with the court in any way during the relevant period.

Townsend, 767 F.2d at 18.

           Although taxpayers' actions here are not negligent actions as those in Townsend, the same

principle applies. Taxpayers' mere objection to the reassignment, a reaction, was not accompanied

by the necessary concomitant action, that is, a request for a new trial. Here, not only did taxpayers

not request a new trial, they indicated to the court all the reasons they did not want a new trial, and

that a new trial would cause them undue hardship. By cleverly tiptoeing across this procedural

tightrope, taxpayers tried carefully to avoid consenting to a reassignment, while at the same time,

carefully to avoid asking for a new trial, thus paralyzing the court's ability to proceed at all. As we

have outlined, Rule 63 anticipates and circumvents this paralysis.

                                         V. CONCLUSION

       The Tax Court's finding that taxpayers waived their right to a new trial or a further trial is,

from this record, clearly correct, not clearly erroneous. As in Milbrew, the taxpayers cannot now

complain simply because Judge Dawson decided the case against them. The judgment of the Tax

Court is

       AFFIRMED.
