On Appeal from the United States District Court for the Eastern District of Pennsylvania, D.C. Civil No. 85-5219.
Sloviter, Stapleton and Hunter, Circuit Judges.
The only open issue on this appeal is whether this court has jurisdiction to decide the merits of this claim regarding liability for estate taxes in excess of one million dollars which were indisputably owed to the United States. The appellee contends that this matter falls within the exclusive jurisdiction of the United States Supreme Court, to which the government did not timely appeal.
William Netsky (Netsky), executor of the estate of Frank Netsky who died testate on August 18, 1981, filed a United States Estate Tax Return, Form 706, on May 18, 1982 which included in the estate $2,900,000 in public housing agency obligations (Project Notes). Netsky paid tax due out of the estate in the amount of $1,378,547.76 and subsequently paid a $38,212.96 deficiency assessed by the Internal Revenue Service on April 24, 1984.
Netsky then filed an administrative claim for a refund of $1,233,739.89 on the grounds that the Project Notes should not have been included as property of the decedent's gross estate for valuation purposes. The Internal Revenue Service denied Netsky's claim for a refund, and, after exhausting his administrative remedies, Netsky filed this action in 1985.
The district court upheld Netsky's claim, ruling that section 11(b) of the 1974 amendments to the United States Housing Act of 1937, Pub. L. No. 93-383, 88 Stat. 653, 667 (1974) (codified as amended at 42 U.S.C. § 1437i(b)(1982)) expressed Congress' "clear and strong intent" to make Project Notes such as those at issue here exempt from estate tax. Netsky v. United States, 652 F. Supp. 783, 784 (E.D. Pa. 1986). In so holding, the district court also rejected the government's claim that section 641 of the Deficit Reduction Act of 1984, Pub. L. No. 98-369, 98 Stat. 494, 939, which specifically made Project Notes estate-taxable where the decedent died, a gift was made, or a transfer was made on or after June 19, 1984, applied retroactively to Netsky. Id. at 785.
The government appealed to this court. Because the issue of the estate tax status of Project Notes was then pending in the Supreme Court, we held the appeal in abeyance. Thereafter, in United States v. Wells Fargo Bank, 485 U.S. 351, 108 S. Ct. 1179, 99 L. Ed. 2d 368 (1988), the Supreme Court squarely decided all substantive issues against the taxpayer by holding that Congress never intended to exempt Project Notes from estate taxation.
However, Netsky had filed and there remains pending a motion to dismiss the appeal in this court for lack of jurisdiction. It is Netsky's position that this court lacks jurisdiction over the government's appeal because direct review by the Supreme Court was available. We turn to that question.