Richard J. Borchers Jane E. Borchers v. Comm'r of Internal Revenue, 943 F.2d 22 (8th Cir. 1991). · Go Syfert
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Richard J. Borchers Jane E. Borchers v. Comm'r of Internal Revenue, 943 F.2d 22 (8th Cir. 1991). Cases Citing This Book View Copy Cite
“although mandate controls all matters within its scope, a court on remand is free to revisit any issue did not expressly or impliedly decide.”
154 citation events (59 in the last 25 years) across 7 distinct courts.
Strongest positive: Concrete Holding Co. v. James P. Davis (ca8, 1999-02-10)
Treatment trajectory · 1991 → 2026 · click a year to view as-of
1991 2008 2026
Statutes interpreted (leading-cases list)
#2 26 U.S.C. § 46 cited 2× in this case · 114 total citations of statute
Top citers, strongest first. 19 distinct citers. How cited ↗
discussed Cited as authority (verbatim quote) Concrete Holding Co. v. James P. Davis
8th Cir. · 1999 · signal: see · quote attribution · 1 verbatim quote · confidence high
although mandate controls all matters within its scope, a court on remand is free to revisit any issue did not expressly or impliedly decide.
cited Cited as authority (rule) Herll v. Auto Owners Insurance Company
D. Minnesota · 2018 · confidence medium
Dep’t of Human Servs., 364 F.3d 925 , 931 (8th Cir. 2004); Borchers v. CIR, 943 F.2d 22, 23 (8th Cir. 1991); Delcastillo v. Odyssey Resource Mgmt., 292 Fed.
discussed Cited as authority (rule) Delcastillo v. Odyssey Resource Management, Inc.
8th Cir. · 2008 · confidence medium
Dep’t of Human Servs., 364 F.3d 925 , 931 (8th Cir.2004) (district court is not free on remand to reconsider finally-disposed-of question); Borchers v. Comm’r, 943 F.2d 22, 23 (8th Cir.1991) (mandate controls all matters within its scope, and on remand court is not free to revisit issues expressly or impliedly decided).
discussed Cited as authority (rule) August J. Hauptli, Jr., and Barbara Hauptli v. Commissioner of Internal Revenue
10th Cir. · 1991 · confidence medium
Schiff v. United States, 942 F.2d 348, 351-54 (6th Cir.1991) (disregarding lease with stated two year term); Borchers v. Comm’r, 943 F.2d 22, 23 (8th Cir.1991) (disregarding lease with one year stated term); Connor v. Comm’r, 847 F.2d 985, 989 (1st Cir.1988) (same); Hokanson v. Comm’r, 730 F.2d 1245, 1248 (9th Cir.1984) (disregarding lease with an implied one year term); see also Shumacher, 931 F.2d at 653 (adopting realistic contemplation test for verbal leases without termination dates). “[A] minimum duration specified in a lease is not the controlling factor in determining the lengt…
cited Cited "see" Jason Aaron Cook v. Commissioner
Tax Ct. · 2019 · signal: see · confidence high
Rule 142(a); see Borchers v. Commissioner, 95 T.C. 82, 91 (1990), aff’d, 943 F.2d 22 (8th Cir. 1991).
discussed Cited "see" Ryther v. Comm'r (2×) also: Cited "see, e.g."
Tax Ct. · 2016 · signal: see · confidence high
See Borchers v. Commissioner , 95 T.C. 82 , 90 (1990) , aff'd , 943 F.2d 22 (8th Cir. 1991) .
cited Cited "see" Kenneth Russell Laremore v. Commissioner
Tax Ct. · 2014 · signal: see · confidence high
See Borchers v. Commissioner, 95 T.C. 82, 91 (1990), aff’d, 943 F.2d 22 (8th Cir. 1991).
cited Cited "see" Laremore v. Comm'r
Tax Ct. · 2014 · signal: see · confidence high
See Borchers v. Commissioner , 95 T.C. 82 , 91 (1990) , aff'd , 943 F.2d 22 (8th Cir. 1991) .
cited Cited "see" Black v. Comm'r
Tax Ct. · 2014 · signal: see · confidence high
Rule 122(b) ; see Borchers v. Commissioner , 95 T.C. 82 , 91 (1990) , aff'd , 943 F.2d 22 (8th Cir. 1991) .
cited Cited "see" Gentile v. Comm'r
Tax Ct. · 2013 · signal: see · confidence high
Rule 122(b) ; see Borchers v. Commissioner , 95 T.C. 82 , 91 (1990) , aff'd , 943 F.2d 22 ↩ (8th Cir. 1991) . 4.
discussed Cited "see" Lawrence F. & Sara L. Peek v. Commissioner
Tax Ct. · 2013 · signal: see · confidence high
See note 3 below.) Furthermore, because our holding that the loan guaranties were prohibited transactions resolves the income tax issues in favor of the IRS and against the petitioners, we need not reach the question whether Mr. Fleck and Mr. Peek would, in the alternative, owe excise tax for excess contributions to their successor IRAs under section 4973. 3 The burden of proof is generally on the taxpayer, see Rule 142(a)(1), and the submission of a case as fully stipulated under Rule 122 does not alter that burden, see Borchers v. Commissioner, 95 T.C. 82, 91 (1990), aff’d, 943 F.2d 22 (8t…
cited Cited "see" Plotinsky v. Comm'r
Tax Ct. · 2008 · signal: see · confidence high
See id.
cited Cited "see" Dwight Cofer v. Dora Schriro
8th Cir. · 2001 · signal: see · confidence high
See Borchers v. Commissioner, 943 F.2d 22, 23 (8th Cir.1991).
cited Cited "see" Osowski v. Commissioner
Tax Ct. · 2000 · signal: see · confidence high
See Borchers v. Commissioner, 95 T.C. 82 , 91 (1990) , affd. on other issues 943 F.2d 22 (8th Cir. 1991) .
discussed Cited "see" United States Fidelity & Guaranty Co. v. Concrete Holding Co.
8th Cir. · 1999 · signal: see · confidence high
See Borchers v. Commissioner, 943 F.2d 22, 23 (8th Cir.1991) (“Although [appeals court] mandate controls all matters within its scope, a court on remand is free to revisit any issue [appeals court] did not expressly or impliedly decide.”).
discussed Cited "see" United States Fidelity and Guaranty Company, a Corporation v. Concrete Holding Company, Formerly Known as St. Charles Quarry Company, Doing Business as Defiance Quarry, Doing Business as Kurtz Concrete, Inc., Doing Business as Goellner Redi-Mix, Inc., a Corporation St. Charles County Sanitary Landfill, Inc., an Administratively-Dissolved Corporation Quarry Holding Company, a Voluntarily-Dissolved Corporation v. John J. Barnes, Jr. Quarry Holding Company, Third Party John J. Barnes, Jr. Quarry Holding Company James P. Davis Quarry Development Company Community Title Company, Cross Concrete Holding Company, Third Party v. James P. Davis, Individually, and as Statutory and Common Law Trustee for Quarry Holding Company Quarry Development Company Community Title Company, Third Party
3rd Cir. · 1999 · signal: see · confidence high
See Borchers v. Commissioner, 943 F.2d 22, 23 (8th Cir.1991) ("Although [appeals court] mandate controls all matters within its scope, a court on remand is free to revisit any issue [appeals court] did not expressly or impliedly decide."). 12 Finally, we note that notwithstanding Davis's strenuous arguments against the District Court's ruling awarding prejudgment interest to Concrete, conspicuously absent is an argument that, passing over the procedural issue Davis has raised, Concrete is not entitled to prejudgment interest as a matter of contract.
discussed Cited "see, e.g." Flagg v. Commissioner
Tax Ct. · 1997 · signal: see also · confidence low
Petitioner must prove that the disputed amounts were attributable to worthless debts or worthless securities, Welch v. Helvering , 290 U.S. 111 , 115 (1933) ; see also Borchers v. Commissioner , 95 T.C. 82 , 91 (1990) (fact that case submitted to the Court fully stipulated under Rule 122 does not change or otherwise lessen taxpayer's burden), affd. 943 F.2d 22 (8th Cir. 1991) ; Drum v. Commissioner , T.C.
cited Cited "see, e.g." McNABB v. RILEY
8th Cir. · 1994 · signal: see, e.g. · confidence medium
See, e.g., Borchers v. Commissioner, 943 F.2d 22, 23 (8th Cir.1991).
cited Cited "see, e.g." McNabb v. Riley
8th Cir. · 1994 · signal: see, e.g. · confidence medium
See, e.g., Borchers v. Commissioner, 943 F.2d 22, 23 (8th Cir.1991).
Retrieving the full opinion text from the archive…
Richard J. BORCHERS; Jane E. Borchers, Appellants,
v.
COMMISSIONER OF INTERNAL REVENUE, Appellee
90-2724.
Court of Appeals for the Eighth Circuit.
Aug 23, 1991.
943 F.2d 22
Bernie H. Beaver, Minneapolis, Minn., for appellants., David A. Hubbert, argued, Washington, D.C. (Gary R. Allen and Richard Farber, on the brief), for appellee.
Fagg, Henley, Magill.
Cited by 144 opinions  |  Published
[*23] FAGG, Circuit Judge.

Richard J. Borchers and Jane E. Borch-ers appeal the tax court’s decision denying them an investment tax credit on computer equipment Richard leased to the Borchers-es’ wholly-owned corporation, Decision Systems, Inc., in 1982. See 26 U.S.C. § 46(e)(3)(B) (1982) (amended 1988). We affirm.

This is the second time we have had this case before us. Initially the tax court held the Borcherses were entitled to an investment tax credit, Borchers v. Commissioner, 55 T.C.M. (CCH) 1469 (1988), and the Commissioner appealed. We could not effectively review the decision because the tax court’s failure to offer an analysis “[made] it impossible for us to determine the correctness of [its] decision.” Borchers v. Commissioner, 889 F.2d 790, 791 (8th Cir.1989). Thus, we vacated the tax court’s decision and remanded the case for further proceedings. Id. On remand the tax court engaged in a reasoned analysis changing the result and disallowing the credit. Borchers v. Commissioner, 95 T.C. 82 (1990). The Borcherses now appeal.

The Borcherses argue that after we vacated and remanded the tax court’s first decision, the tax court could only explain, not change, the initial result. We disagree. Although our mandate controls all matters within its scope, a court on remand is free to revisit any issue we did not expressly or impliedly decide. Newball v. Offshore Logistics Int'l, 803 F.2d 821, 826 (5th Cir.1986); see also Bethea v. Levi Strauss & Co., 916 F.2d 453, 456 (8th Cir.1990). In our earlier decision, we did not decide whether the Borcherses were entitled to an investment tax credit or confine the tax court to explaining its first decision. Accordingly, the tax court was free to change the result on remand.

We now turn to the merits of the case. A noncorporate lessor of property seeking an investment tax credit under 26 U.S.C. § 46(e)(3)(B) must show the property is leased for less than 50% of its useful life. Here, the leases’ terms are twelve months, and the computer equipment’s useful life is six years. Thus, the leases’ written terms are less than 50% of the equipment’s useful life. In determining the duration of the leases, however, the tax court used the “realistic contemplation” test. 95 T.C. at 88. Under this test, written lease terms are not dispositive. See Connor v. Commissioner, 847 F.2d 985, 988 (1st Cir.1988). Instead, all the facts and circumstances surrounding the lease are examined, see 95 T.C. at 89, to ascertain the realistic contemplation of the leasing parties when the property is first put into service, Owen v. Commissioner, 881 F.2d 832, 834 (9th Cir.1989), ce rt. denied, — U.S. -, 110 S.Ct. 1113, 107 L.Ed.2d 1020 (1990); Connor, 847 F.2d at 989; see also McEachron v. Commissioner, 873 F.2d 176, 177 (8th Cir.1988) (adopting realistic contemplation test when challenged lease contains no definite term). Because the Borcherses do not challenge the use of this test, we need not consider the test used in McNamara v. Commissioner, 827 F.2d 168, 172 (7th Cir.1987) (when lease not tax motivated, written term controls unless Commissioner shows lease is a sham).

The Borcherses had the burden to prove they realistically contemplated the leases would cover less than half of the equipment’s useful life. Connor, 847 F.2d at 989. The tax court determined the Borcherses failed to satisfy this burden of persuasion. 95 T.C. at 94. We review the tax court’s determination for clear error. Connor, 847 F.2d at 989.

Reviewing the stipulated record, we find no clear error. Although the Borcherses showed the leases’ written terms were less than 50% of the equipment’s useful life, the record reflects the Borcherses controlled Decision Systems, Richard leased only to Decision Systems in 1982, and in 1983, Richard again leased to Decision Systems all the equipment purchased and leased to the corporation in 1982. See 95 T.C. at 84-87, 90. The record also shows Richard leased other computer equipment to Decision Systems in 1981, renewed all these leases in 1982, and renewed some of the leases again in 1983. See id. at 85-86, 90. We believe the tax[*24] court’s analysis of the relevant factors and circumstances, id. at 89, 94, supports its conclusion that the Borcherses failed to prove the parties realistically contemplated the terms of the leases would be less than half of the equipment’s useful life, id. at 94.

Accordingly, we affirm the tax court’s decision.