Acme Steel Company (formerly known as Interlake, Inc., and now known as Acme Metals, Inc.) and Consolidated Subsidiaries - Page 46

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          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 bankruptcy              






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