- 46 - litigation of the same issue, turns upon such factors as the nature of the decision (i.e., that it was not avowedly tentative), the adequacy of the hearing, and the opportunity for review.” Id. (quoting Lummus Co. v. Commonwealth Oil Refining Co., 297 F.2d 80, 89 (2d Cir. 1961)). The bankruptcy court’s opinion is not final because it is avowedly tentative and interlocutory. The bankruptcy court’s opinion is avowedly tentative because it refused to rule on the 1981 and 1984 tentative refunds, allowing the parties to conclude litigation with respect to 1981 and 1984 in this Court to “provide finality as to those years”. In addition, the bankruptcy court’s opinion is interlocutory, not final, because it has not issued an appealable order. On January 4, 2002, the United States filed a motion in the bankruptcy court to certify its opinion for appeal under Fed. R. Civ. P. 54(b). The bankruptcy court has yet to act on the motion. We recognize that finality for collateral estoppel purposes does not necessarily require a final decision. See Coleman v. Commissioner 16 F.3d 821 (7th Cir. 1994), affg. T.C. Memo. 1990-99. However, we do not believe the bankruptcy court’s opinion is sufficiently final because respondent has not even had the opportunity to appeal the decision with respect to 1985; the bankruptcy court has not acted on respondent’s rule 54(b) motion. The lack of an opportunity for review and the avowedly tentative nature of the bankruptcyPage: Previous 36 37 38 39 40 41 42 43 44 45 46 47 48 49 50 51 52 53 54 55 Next
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