Erwin G. Baumer & Clara S. Baumer v. United States of Am., Erwin H. Baumer & Gail A. Baumer v. United States of Am., Seven Eighty-Eight Greenwood Avenue Corp. v. United States, 685 F.2d 1318 (11th Cir. 1982). · Go Syfert
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Erwin G. Baumer & Clara S. Baumer v. United States of Am., Erwin H. Baumer & Gail A. Baumer v. United States of Am., Seven Eighty-Eight Greenwood Avenue Corp. v. United States, 685 F.2d 1318 (11th Cir. 1982). Cases Citing This Book View Copy Cite
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cited 2× by 2 distinct cases, last quoted 1988 · …resolution of a narrow factual issue, at p. 1321 ✓
70 citation events (29 in the last 25 years) across 19 distinct courts.
Treatment trajectory · 1982 → 2026 · click a year to view as-of
1982 2004 2026
Top citers, strongest first. 45 distinct citers. How cited ↗
examined Cited as authority (verbatim quote) 46 Fair empl.prac.cas. 1542, 46 Empl. Prac. Dec. P 37,898 Charles R. Barber v. International Brotherhood of Boilermakers, Iron Ship Builders, Blacksmiths, Forgers, and Helpers, District Lodge 57 (3×) also: Cited as authority (rule), Cited "see"
11th Cir. · 1988 · signal: see · quote attribution · 1 verbatim quote · confidence high
there is nothing in the record to indicate that the evidence produced at the hearing after remand was unavailable to the taxpayers during the first trial.
cited Cited as authority (rule) Judge v. Knauf Gips KG
M.D. Fla. · 2024 · confidence medium
Baumer v. United States, 685 F.2d 1318, 1320 (11th Cir. 1982) (quoting White v. Murtha, 377 F.2d 428 , 431–32 (5th Cir. 1967)).
cited Cited as authority (rule) MCF Enterprises, Inc. v. Knauf Gips KG
M.D. Fla. · 2024 · confidence medium
Baumer v. United States, 685 F.2d 1318, 1320 (11th Cir. 1982) (quoting White v. Murtha, 377 F.2d 428 , 431–32 (5th Cir. 1967)).
cited Cited as authority (rule) MCF Enterprises, Inc. v. Knauf Gips KG
M.D. Fla. · 2024 · confidence medium
Baumer v. United States, 685 F.2d 1318, 1320 (11th Cir. 1982) (quoting White v. Murtha, 377 F.2d 428 , 431–32 (5th Cir. 1967)).
cited Cited as authority (rule) CDO Investments, LLC v. Knauf Gips KG
M.D. Fla. · 2024 · confidence medium
Baumer v. United States, 685 F.2d 1318, 1320 (11th Cir. 1982) (quoting White v. Murtha, 377 F.2d 428 , 431–32 (5th Cir. 1967)).
cited Cited as authority (rule) CDO Investments, LLC v. Knauf Gips KG
M.D. Fla. · 2024 · confidence medium
Baumer v. United States, 685 F.2d 1318, 1320 (11th Cir. 1982) (quoting White v. Murtha, 377 F.2d 428 , 431–32 (5th Cir. 1967)).
cited Cited as authority (rule) Judge v. Knauf Gips KG
M.D. Fla. · 2024 · confidence medium
Baumer v. United States, 685 F.2d 1318, 1320 (11th Cir. 1982) (quoting White v. Murtha, 377 F.2d 428 , 431–32 (5th Cir. 1967)).
cited Cited as authority (rule) Vest v. Knauf Gips KG
M.D. Fla. · 2024 · confidence medium
Baumer v. United States, 685 F.2d 1318, 1320 (11th Cir. 1982) (quoting White v. Murtha, 377 F.2d 428 , 431–32 (5th Cir. 1967)).
cited Cited as authority (rule) Vest v. Knauf Gips KG
M.D. Fla. · 2024 · confidence medium
Baumer v. United States, 685 F.2d 1318, 1320 (11th Cir. 1982) (quoting White v. Murtha, 377 F.2d 428 , 431–32 (5th Cir. 1967)).
discussed Cited as authority (rule) Eakes v. State of Tennessee
M.D. Tenn. · 2022 · confidence medium
See Yankton Sioux Tribe v. Podhradsky, 606 F.3d 994, 1005 (8th Cir. 2010) (concluding that defendants’ evidence was not “truly ‘new’” where it could “have reasonably been developed and presented in earlier stages of this litigation”); Baumer v. United States, 685 F.2d 1318, 1321 (11th Cir. 1982) (holding that evidence produced at an evidentiary hearing was not “new” where there was “nothing in the record to indicate that the evidence . . . was unavailable to the taxpayers during the first trial”); In re M.T.G., Inc., 291 B.R. 694 , 702 n.13 (E.D.
discussed Cited as authority (rule) Harris v. Wingo
M.D. Fla. · 2022 · confidence medium
It “stands for the proposition that an appellate decision on an issue must be followed in all subsequent trial court proceedings unless the presentation of new evidence or an intervening change in the controlling law dictates a different result, or the appellate decision is clearly erroneous and, if implemented, would work a manifest injustice.” Id. (citing Westbrook v. Zant, 743 F.2d 764 , 768–69 (11th Cir. 1984); Baumer v. United States, 685 F.2d 1318, 1320 (11th Cir. 1982)).
discussed Cited as authority (rule) Northeastern Engineers Federal Credit Union v. Home Depot, Inc.
11th Cir. · 2022 · confidence medium
Westbrook v. Zant, 743 F.2d 764 , 768–69 (11th Cir. 1984); Baumer v. United States, 685 F.2d 1318, 1320 (11th Cir. 1982)). 7Home Depot also questioned whether the District Court’s ruling was ame- nable to appellate review.
discussed Cited as authority (rule) Omega Patents, LLC v. Calamp Corp.
Fed. Cir. · 2021 · confidence medium
See, e.g., Stein, 964 F.3d at 1324 (explaining that whether the law of the case applies depends on “the scope of . . . [the] remand”); United States v. Mesa, 247 F.3d 1165 , 1171 n.6 (11th Cir. 2001) (noting that waiver may be over- come by the mandate on remand); Baumer v. United States, 685 F.2d 1318, 1321 (11th Cir. 1982) (recognizing that an issue not raised on appeal may nonetheless be litigated on remand depending on “the scope of th[e] mandate”).
discussed Cited as authority (rule) Brokers' Choice of America, Inc. v. NBC Universal, Inc.
10th Cir. · 2017 · confidence medium
They are not now entitled to resurrect a previously abandoned issue.’ United States v. Monsisvais, 946 F.2d 114, 117 (10th Cir. 1991) (quoting Baumer v. United States, 685 F.2d 1318, 1321 (11th Cir. 1982)). 17 .
cited Cited as authority (rule) Yankton Sioux Tribe v. Podhradsky
8th Cir. · 2010 · confidence medium
They chose their trial strategy, litigated accordingly, and lost.” Baumer v. United States, 685 F.2d 1318, 1321 (11th Cir.1982).
cited Cited as authority (rule) Yankton Sioux Tribe v. Scott Podhradsky
8th Cir. · 2009 · confidence medium
They chose their trial strategy, litigated accordingly, and lost.” Baumer v. United States, 685 F.2d 1318, 1321 (11th Cir. 1982).
cited Cited as authority (rule) Yankton Sioux Tribe v. Podhradsky
8th Cir. · 2009 · confidence medium
They chose their trial strategy, litigated accordingly, and lost.” Baumer v. United States, 685 F.2d 1318, 1321 (11th Cir.1982).
cited Cited as authority (rule) In Re Antrobus
10th Cir. · 2009 · confidence medium
Monsisvais, 946 F.2d at 117 ; Baumer v. United States, 685 F.2d 1318, 1321 (11th Cir.1982).
cited Cited as authority (rule) In Re Enron Corp. Secur., Deriv. &\ Erisa\" Lit."
S.D. Tex. · 2009 · confidence medium
U.S. v. Monsisvais, 946 F.2d 114, 117 (10th Cir.1991); Baumer v. United States, 685 F.2d 1318, 1321 (11th Cir.1982); Becerra, 155 F.3d at 753-54 ; Lyons, 888 F.2d at 1075 .
discussed Cited as authority (rule) Fisher v. United States
Fed. Cl. · 2008 · confidence medium
See, e.g., Davis v. Comm’r of Internal Revenue, 210 F.3d 1346 , 1347-48 (11th Cir.2000) (arguing that income on sale was delayed to later year); Baumer v. United States, 685 F.2d 1318, 1321 (11th Cir.1982) (same); Am.
discussed Cited as authority (rule) Tu v. State
Md. · 1994 · confidence medium
It has been held that “[a] departure from the law of the case was not warranted when the plaintiffs intentionally had chosen not to use the “new evidence” at trial.” Baumer v. U.S., 685 F.2d 1318, 1321 (11th Cir.1982).
discussed Cited as authority (rule) Ronald O. Pelletier, Cross-Appellant v. Gary D. Zweifel, Cross-Appellee
11th Cir. · 1993 · confidence medium
Co., 825 F.2d 1506, 1511 (11th Cir.1987) (en banc), cert. denied, 484 U.S. 1006 , 108 S.Ct. 700 , 98 L.Ed.2d 652 (1988); Piambino v. Bailey, 757 F.2d 1112, 1119 (11th Cir.1985), cert. denied, 476 U.S. 1169 , 106 S.Ct. 2889 , 90 L.Ed.2d 976 (1986); Wheeler v. City of Pleasant Grove, 746 F.2d 1437 , 1440 & n. 2 (11th Cir.1984); Westbrook v. Zant, 743 F.2d 764, 770 (11th Cir.1984); Dorsey v. Continental Casualty Co., 730 F.2d 675, 678-79 (11th Cir.1984); United States v. Williams, 728 F.2d 1402, 1405-06 (11th Cir.1984); Baumer v. United States, 685 F.2d 1318, 1321 (11th Cir.1982). 4 This rule der…
discussed Cited as authority (rule) Ray E. Vintilla, Carla M. Vintilla v. United States
11th Cir. · 1991 · confidence medium
The “law of the case doctrine” provides that: “A decision of a legal issue or issues by an appellate court ... must be followed in all subsequent proceedings in the same case in the trial court or on a later appeal in the appellate court, unless [1] the evidence in a subsequent trial [w]as substantially different, [2] controlling authority has since made a contrary decision of the law applicable to such issues, or [3] the decision was clearly erroneous and would work a manifest injustice.” United States v. Williams, 728 F.2d 1402, 1406 (11th Cir.1984) (quoting Baumer v. United States, …
cited Cited as authority (rule) Whittington v. Gilbralter Savings & Loan Ass'n (In Re Spain)
N.D. Ala. · 1988 · confidence medium
Id. at 872 (citations omitted); see Dorsey v. Continental Casualty Co., 730 F.2d 675 , 678 & n. 2 (11th Cir.1984); Baumer *294 v. United States, 685 F.2d 1318, 1320-21 (11th Cir.1982).
examined Cited as authority (rule) Barber vV. International Brotherhood of Boilermakers, Iron Ship Builders, Blacksmiths, Forgers, & Helpers, District Lodge 57 (3×) also: Cited "see"
11th Cir. · 1988 · confidence medium
Baumer, 685 F.2d at 1321 (district court could not take evidence of fair market value of option when granted where appellate court remanded for determination of option’s fair market value when exercised); see EEOC v. International Longshoremen’s Ass’n, 623 F.2d 1054, 1058 (5th Cir.1980) (district court could not hold hearing on the equity of merging one of four locals of a union where appellate court directed that all four locals be merged), cert. denied, 451 U.S. 917 , 101 S.Ct. 1997 , 68 L.Ed.2d 310 (1981).
discussed Cited as authority (rule) Bernard Litman v. Massachusetts Mutual Life Insurance Company (2×)
11th Cir. · 1987 · confidence medium
The doctrine is based on the premise that an appellate decision is binding in all subsequent proceedings in the same case unless the presentation of new evidence or an intervening change in the controlling law dictates a different result, or the appellate decision is clearly erroneous and, if implemented, would work a manifest injustice. 2 Piambino v. Bailey, 757 F.2d 1112, 1120 (11th Cir.1985), cert. denied, — U.S. -, 106 S.Ct. 2889 , 90 L.Ed.2d 976 (1986); Westbrook v. Zant, 743 F.2d 764, 768-69 (11th Cir.1984); Baumer v. United States, 685 F.2d 1318, 1320 (11th Cir.1982) (quoting White v.…
discussed Cited as authority (rule) Williams v. City of Dothan (2×) also: Cited "see, e.g."
11th Cir. · 1987 · confidence medium
Co., 730 F.2d 675, 678 (11th Cir.1984), Baumer v. U.S., 685 F.2d 1318, 1320 (11th Cir.1982).
discussed Cited as authority (rule) Williams v. City of Dothan, Alabama (2×) also: Cited "see, e.g."
1st Cir. · 1987 · confidence medium
Co., 730 F.2d 675, 678 (11th Cir.1984), Baumer v. U.S., 685 F.2d 1318, 1320 (11th Cir.1982).
discussed Cited as authority (rule) Bernard Litman v. Massachusetts Mutual Life Insurance Company (2×)
11th Cir. · 1986 · confidence medium
Westbrook v. Zant, 743 F.2d 764, 768-69 (11th Cir.1984); Baumer v. United States, 685 F.2d 1318, 1320 (11th Cir.1982) (quoting White v. Murtha, 377 F.2d 428, 431-32 (5th Cir.1967).
cited Cited as authority (rule) Piambino v. Bailey
11th Cir. · 1985 · confidence medium
Westbrook v. Zant, 743 F.2d 764, 768-69 (11th Cir.1984); Baumer v. United States, 685 F.2d 1318, 1320 (11th Cir.1982) (quoting White v. Murtha, 377 F.2d 428, 431-32 (5th Cir.1967)).
discussed Cited as authority (rule) Piambino v. Bailey
11th Cir. · 1985 · confidence medium
Westbrook v. Zant, 743 F.2d 764, 768-69 (11th Cir.1984); Baumer v. United States, 685 F.2d 1318, 1320 (11th Cir.1982) (quoting White v. Murtha, 377 F.2d 428, 431-32 (5th Cir.1967)). 27 The law of the case doctrine is not an "inexorable command," White v. Murtha, 377 F.2d at 431 , but rather a salutary rule of practice designed to bring an end to litigation, id., discourage "panel shopping," Lehrman v. Gulf Oil Corp., 500 F.2d 659, 662 (5th Cir.1974), cert. denied, 420 U.S. 929 , 95 S.Ct. 1128 , 43 L.Ed.2d 400 (1975), and ensure the obedience of lower courts.
discussed Cited as authority (rule) Wheeler v. City Of Pleasant Grove
11th Cir. · 1984 · confidence medium
However, the law of the case doctrine does not apply to bar reconsideration of an issue when (1) a subsequent trial produces substantially different evidence, (2) controlling authority has since made a contrary decision of law applicable to that issue, or (3) the prior decision was clearly erroneous and would work manifest injustice. 12 Id. at 872 (citations omitted); see Dorsey v. Continental Casualty Co., 730 F.2d 675 , 678 & n. 2 (11th Cir.1984); Baumer v. United States, 685 F.2d 1318, 1320-21 (11th Cir.1982).
cited Cited as authority (rule) Wheeler v. City of Pleasant Grove
11th Cir. · 1984 · confidence medium
Id. at 872 (citations omitted); see Dorsey v. Continental Casualty Co., 730 F.2d 675 , 678 & n. 2 (11th Cir.1984); Baumer v. United States, 685 F.2d 1318, 1320-21 (11th Cir.1982).
cited Cited as authority (rule) United States v. Cullen Horace Williams
11th Cir. · 1984 · confidence medium
Baumer v. United States, 685 F.2d 1318, 1320 (11th Cir.1982), quoting White v. Murtha, 377 F.2d 428, 431-32 (5th Cir.1967).
discussed Cited "see" Estate of Mikulski v. Centerior Energy Corp.
Ohio Ct. App. · 2019 · signal: see · confidence high
See Baumer, 685 F.2d 1318, at 1320 , quoting White v. Murtha, 377 F.2d 428 (5th Cir.1967) (“‘[A] decision of a legal issue or issues by an appellate court * * * must be followed in all subsequent proceedings * * * unless the evidence on a subsequent trial was substantially different[.]’”).
cited Cited "see" United States v. Daniel Casamayor
11th Cir. · 2018 · signal: see · confidence high
See Baumer v. United States, 685 F.2d 1318, 1320 (11th Cir. 1982).
discussed Cited "see" OSI, Inc. v. United States
M.D. Ala. · 2007 · signal: see · confidence high
See Baumer v. United States, 685 F.2d 1318, 1319-21 (11th Cir.1982); see also Intergraph Corp. v. Intel Corp., 253 F.3d 695, 697-99 (Fed.Cir.2001) (refusing to revisit a prior determination in light of new evidence because the information was available at the time of the first appeal).
discussed Cited "see" Urologix, Inc. v. PROSTALUND AB
E.D. Wis. · 2003 · signal: see · confidence high
See Baumer v. United States, 685 F.2d 1318, 1321 (11th Cir.1982) (declining to revisit the law of the case where party’s litigation strategy led to the challenged result); see also Caisse Nationale, 90 F.3d at 1270 (7th Cir.1996) (reaffirming that reconsideration “is not an appropriate forum for ... arguing matters that could have been heard during the pendency of the previous motion”); Smith Int’l, Inc. v. Hughes Tool Co., 759 F.2d 1572, 1578-79 (Fed.Cir.1985) (holding that district court acted properly in declining to consider evidence that could have been presented when issue was or…
cited Cited "see" Wilburt Sales, Jr., and Janice T. Sales v. State Farm Fire and Casualty Company
11th Cir. · 1990 · signal: see · confidence high
See Baumer v. United States, 685 F.2d 1318, 1321 (11th Cir.1982).
discussed Cited "see" Al Haddad Bros. Enterprises, Inc. v. M/S AGAPI
D. Del. · 1986 · signal: see · confidence high
See Baumer v. United States, 685 F.2d 1318, 1321 (11th Cir.1982) (plaintiffs who deliberately decided not to present certain evidence at original trial could not “resurrect a previously abandoned issue” by presenting withheld evidence at subsequent proceeding; original determination of issue was law of the case).
cited Cited "see" Johnny Mack Westbrook v. Walter D. Zant, Warden, Georgia Diagnostic and Classification Center
11th Cir. · 1984 · signal: see · confidence high
See Baumer v. United States, 685 F.2d 1318, 1321 (11th Cir.1982); Schwartz, supra at 555 .
discussed Cited "see, e.g." Jensen, Madison Jody the Estate of v. Duchesne County
D. Utah · 2022 · signal: see also · confidence low
The Tenth Circuit’s Recitation of Supported Facts Is Not the Law of the Case Because It Is Not “a Rule of Law.” PA Clark argues that “[w]hen a case is appealed and remanded, the decision of the appellate court establishes the law of the case and it must be followed by the court on remand.”141 PA Clark asserts that the “Court of Appeals found that [LPN] Clyde had never informed either [PA] Clark or Dr. Tubbs of [Ms.] Jensen’s medical condition.”142 The “law of the case is an amorphous concept.”143 “[T]he doctrine posits that when a court decides upon a rule of law, that de…
discussed Cited "see, e.g." United States v. Becerra
5th Cir. · 1998 · signal: see also · confidence medium
Thus, similar to our conclusion in Lyons , “the district court properly denied [the government] the right on remand to offer evidence that [it] had had every opportunity and incentive to produce at the earlier proceeding.” Lyons, 888 F.2d at 1075 ; see also Baumer v. United States, 685 F.2d 1318, 1321 (11th Cir.1982) (refusing to apply “substantially different evidence” exception because “[t]here is nothing in the record to indicate that the evidence produced at the hearing after remand was unavailable to the taxpayers during the first trial”).
discussed Cited "see, e.g." United States v. Becerra
5th Cir. · 1998 · signal: see also · confidence medium
Thus, similar to our conclusion in Lyons, "the district court properly denied [the government] the right on remand to offer evidence that [it] had had every opportunity and incentive to produce at the earlier proceeding." Lyons, 888 F.2d at 1075 ; see also Baumer v. United States, 685 F.2d 1318, 1321 (11th Cir.1982) (refusing to apply "substantially different evidence" exception because "[t]here is nothing in the record to indicate that the evidence produced at the hearing after remand was unavailable to the taxpayers during the first trial").
cited Cited "see, e.g." S & P, INC. v. Pfeifer
N.D. Ind. · 1995 · signal: see, e.g. · confidence medium
See, e.g., Baumer v. United States, 685 F.2d 1318, 1321 (11th Cir. 1988) (remanding for determination of option’s fair market value when exercised). 5 .
Retrieving the full opinion text from the archive…
Erwin G. Baumer and Clara S. Baumer
v.
United States of America, Erwin H. Baumer and Gail A. Baumer v. United States of America, Seven Eighty-Eight Greenwood Avenue Corporation v. United States
81-7530.
Court of Appeals for the Eleventh Circuit.
Sep 17, 1982.
685 F.2d 1318
Cited by 4 opinions  |  Published

685 F.2d 1318

82-2 USTC P 9583

Erwin G. BAUMER and Clara S. Baumer, Plaintiffs-Appellees,
v.
UNITED STATES of America, Defendant-Appellant.
Erwin H. BAUMER and Gail A. Baumer, Plaintiffs-Appellees,
v.
UNITED STATES of America, Defendant-Appellant.
SEVEN EIGHTY-EIGHT GREENWOOD AVENUE CORPORATION, Plaintiff-Appellee,
v.
UNITED STATES of America, Defendant-Appellant.

No. 81-7530.

United States Court of Appeals,
Eleventh Circuit.

Sept. 17, 1982.

John F. Murray, Michael L. Paup, Gary R. Allen, Jo-Ann Horn, Glenn L. Archer, Jr., Attys., Tax Div., Dept. of Justice, Washington, D. C., for defendant-appellant.

Alex P. Gaines, Robert H. Hishon, Atlanta, Ga., for plaintiffs-appellees.

Appeals from the United States District Court for the Northern District of Georgia.

Before FAY and KRAVITCH, Circuit Judges, and YOUNG[*], District Judge.

FAY, Circuit Judge:

[*~1318]1

In this appeal we are asked to determine whether the doctrine of law of the case precludes the District Court from ascertaining the value of an option on the date it was granted. We hold that it does. The District Court's order is reversed and remanded with directions to ascertain the value in accordance with the prior panel's ruling.

I. Background

2

On January 30, 1966, the Seven Eighty-Eight Greenwood Avenue Corporation (Corporation) contracted to purchase a parcel of residential property for $175,000. Erwin G. Baumer (Father) was the sole shareholder of Corporation. When Erwin H. Baumer (Son) learned of this transaction, he asked for an interest in the property and, in May, 1966, was given an option to purchase a one-half interest in the property. The term during which the option was exercisable was one year from its effective date and the exercise price was $88,000 plus five and one-half percent interest calculated from the effective date. In August, 1966, Corporation entered into a contract for the purchase of an adjacent piece of property for $25,000. Son was granted an amended option in January, 1967, which encompassed both properties. The exercise price for the new option was $100,000. The stated consideration for both options was $10, which Son did not recall having paid. Also in January, 1967, Corporation granted Pope & Carter Company, Inc. an option to purchase the properties for $500,000. In early December, 1968, Son exercised his option, giving a note to Corporation for $114,501.23, the entire option price.[1] On December 27, 1968, Pope & Carter exercised its option. The sale by Son and Corporation to an assignee of Pope & Carter was closed on July 1, 1969. Son received $252,700 for his one-half interest in the properties.

3

The Commissioner determined that upon Son's exercise of his option in 1968, Father received a constructive dividend taxable to Father based on the difference between the exercise price of the option and the fair market value of the property.[2] The taxpayers paid the deficiency and sued in District Court for a refund.

4

The District Court determined that the option and its amendment were distributions of corporate property resulting in a constructive dividend to Father. The court assumed, without deciding, that the constructive dividend occurred when Son was granted the option in 1966 and at the time of its amendment in 1967, years not in issue in the proceedings. The District Court, however, found that the option had no ascertainable value at the time of its grant or its amendment, " 'first because of the ad hoc nature of such a real estate option; second, the indeterminate length of time it is to be in effect; and third ... because of questionable value to, and enforceability in the hands of, any third party.' " Baumer v. United States, 580 F.2d 863, 884 n.33 (5th Cir. 1978) (quoting District Court order). Therefore, under the open transaction doctrine of Burnet v. Logan, 283 U.S. 404, 51 S.Ct. 550, 75 L.Ed. 1143 (1931), the District Court ruled that tax liability attached at the time the option was exercised in 1968.[3] The court's valuation of the option was based on the consideration paid by Pope & Carter for its option.

[*~1319]5

A panel of the former Fifth Circuit affirmed both the finding of a constructive dividend and the determination that, under the open transaction doctrine, tax liability occurred in 1968. The affirmance of the applicability of the open transaction doctrine was on different grounds than those of the District Court. The panel ruled that the taxpayers had not satisfied their burden of establishing the value of the option in 1966 and 1967. Since the taxpayers had not produced any evidence of the value of the option at the time of its grant, the fair market value of the option was unascertainable. Application of the open transaction doctrine was therefore required. Finally, the panel determined that the District Court erred in valuing the option with reference to the Pope & Carter option, holding instead that the option should be valued by the difference between the exercise price and the fair market value of the underlying property on the date the option was exercised. The case was remanded in order for the District Court "to determine the precise value of a one-half interest in the properties on December 6 (the exercise date) and the resulting value of the option upon its exercise." 580 F.2d at 886.

6

On remand, the District Court, 518 F.Supp. 813, overruled a government objection and permitted the taxpayers to introduce expert testimony regarding the value of the option at the time it was granted. Based on that evidence, the District Court concluded that the option did have an ascertainable value when granted, that the open transaction doctrine was inapplicable, and that tax liability attached in 1966 and 1967, not in 1968. The government appeals from this ruling.

II. Law of the Case

7

Under principles of law of the case,

8

a decision of a legal issue or issues by an appellate court ... must be followed in all subsequent proceedings in the same case in the trial court or on a later appeal in the appellate court, unless (1) the evidence on a subsequent trial was substantially different, (2) controlling authority has since made a contrary decision of the law applicable to such issues, or (3) the decision was clearly erroneous and would work a manifest injustice.

9

White v. Murtha, 377 F.2d 428, 431-32 (5th Cir. 1967); see also EEOC v. International Longshoremen's Association, 623 F.2d 1054, 1058 (5th Cir. 1980), cert. denied, 451 U.S. 917, 101 S.Ct. 1997, 68 L.Ed.2d 310 (1981); Schwartz v. NMS Industries, Inc., 575 F.2d 553, 554 (5th Cir. 1978). It is clear that the District Court's determination that the option had an ascertainable fair market value when granted is contrary to the law of the case established by a prior panel of this Court.[4] However, the taxpayers argue that the District Court's deviation is justified under the first and second exceptions of White v. Murtha, because the evidence produced at the subsequent hearing was substantially different and because Revenue Ruling 80-186, 1980-2 C.B. 280, published after the remand of this case, is intervening contrary authority. Neither argument is persuasive.

[*~1320]10

Revenue Ruling 80-186 states that a transfer to a related party of an option to purchase real property is subject to gift tax on the date the option is transferred, not the date it is exercised. The first panel in this case assumed, without deciding, that the constructive dividend occurred on the date the option was granted. 580 F.2d at 884. The court then ruled that because of a lack of evidence in the record to establish value at the time of the grant, valuation must be deferred, under the open transaction doctrine, until the date of the option's exercise. That holding is not inconsistent with Revenue Ruling 80-186.

11

The taxpayers' claim that "new" evidence mandates affirmance of the proceedings on remand is not substantiated by the record in this case. The record reveals that the taxpayers made a deliberate tactical decision in the first trial not to introduce evidence going to the value of the option. Prior to trial the parties filed a Consolidated Proposed Pre-Trial Order which delineated the issues to be litigated. The taxpayers adopted a two-pronged strategy to defeat taxation of the option. First, the taxpayers maintained that the option was not a constructive dividend. Second, they maintained that if any dividend occurred, it occurred when the option was granted in 1966 or 1967, years barred by the statute of limitations. In conjunction with the latter claim, the taxpayers acknowledged the government's argument that the option should be valued and taxed in the year it was exercised because it lacked a readily ascertainable fair market value when granted. The taxpayers were clearly on notice that the government claimed liability attached under the open transaction doctrine, yet the taxpayers produced no evidence of the value of the option when granted. Instead, they argued that the open transaction doctrine was inapplicable as a matter of law. Based on the total absence of evidence in the record, the earlier panel ruled that the "taxpayers failed to satisfy their burden of demonstrating an ascertainable fair market value for the option at the time it was issued." 580 F.2d at 886.

[*1321]12

There is nothing in the record to indicate that the evidence produced at the hearing after remand was unavailable to the taxpayers during the first trial. The taxpayers simply chose not to produce that evidence. They chose their trial strategy, litigated accordingly, and lost. They are not now entitled to resurrect a previously abandoned issue. A panel of this Court remanded for resolution of a narrow factual issue, the fair market value of the option when exercised. The District Court's only function on remand was to value the option "by subtracting the exercise price of approximately $100,000 from the fair market value of the underlying property when the option was exercised on December 6, 1968." 580 F.2d at 886. Permitting evidence of the value of the option when granted was outside the scope of that mandate and impermissible.

13

It appears from the record that at the hearing after remand the government produced evidence that the fair market value of the underlying property when the option was exercised was $493,250. The taxpayers produced no countervailing evidence and do not contest the government's valuation. We therefore direct the District Court on remand to find that the value of the underlying property at the time of exercise was $493,250. The District Court is further directed to value the constructive dividend in accordance with the instructions set forth by the prior panel of this Court.

14

REVERSED and REMANDED.

*

Honorable George C. Young, U. S. District Judge for the Middle District of Florida, sitting by designation

1

The note included accrued interest

2

The Commissioner also determined that Son's gain on the sale of his one-half interest should be imputed to Corporation. The District Court ruled that, under the facts of the case, imputation of Son's gain to Corporation was not warranted. This holding was affirmed by the first appeal

3

Ordinarily, when property is received in exchange for other property the fair market value of the property can be ascertained at the time of the exchange and any gain can be taxed at that time. The open transaction doctrine comes into play when fair market value cannot be ascertained at the time of the exchange. In that event, courts treat the transaction as "open" until value can be determined. Burnet, 283 U.S. at 412-14, 51 S.Ct. at 552-53; Baumer, 580 F.2d at 884-85

4

See Bonner v. Prichard, 661 F.2d 1206 (11th Cir. 1981)