Union Pacific Railroad

¶1In an opinion decided October 18,1968, 185 Ct. Cl. 393,401 F. 2d 778, the court denied plaintiff’s motion for partial summary judgment on Counts XXIX and XXX of the petition wherein plaintiff sought a refund of excess profits taxes and interest for the year 1942, held that plaintiff was not entitled to recover on the two counts, and as to them dismissed the petition. This case now comes before the court on plaintiff’s motion for leave to file motion for rehearing or reconsideration. Upon consideration thereof, together with the opposition thereto, without oral argument, the court states in its order dated February 5, 1971, that it is enough to point out, among the several significant distinctions of this case from Missouri Pac. R.R. v. United States, Nos. 142-67 and 95-68 (192 Ct. Cl. 318, 427 F. 2d 727 (1970), modified on rehearing 193 Ct. Cl. 257, 433 F. 2d 1324. (1971)), that in its opinion in this case the court specifically indicated that, for the purposes of the excess profits tax, Congress did not desire to include unrealized appreciation in value in equity invested capital. See 185 Ct. Cl. 393, 402-04, 401 F. 2d 778, 783-84. Plaintiff’s motion for leave to file motion for rehearing or reconsideration was denied February 5, 1971. On May 5,1971 plaintiff filed a petition for a writ of certiorari.