
    January 27, 1978
    No. 478-77
    American Manufacturing Co. of Texas Industrial Park Supply Co. General Industrial Corp.
    No. 479-77
    No. 480-77
    -On January 27, 1978 the court entered the following order:
    
      
      James J. Gallagher, attorney of record, for plaintiffs. D. Joe Smith, Jr., and Sellers, Conner & Cuneo, of counsel.
    
      Gerald L. Schrader, with whom was Assistant Attorney General Barbara Allen Babcock, for defendant. Don Crockett, Renegotiation Board, of counsel.
    Before Davis, Judge, Presiding, Kunzig and Bennett, Judges.
    
   "This matter before the court concerns the filing of a bond to stay execution of orders of the Renegotiation Board entered on June 29, 1977, determining plaintiffs’ excessive profits to be $9,125,000 for the years 1966-71. On September 27, 1977, plaintiffs filed suit seeking a determination that their respective profits were not excessive. On October 11, 1977, plaintiffs filed a motion requesting that the court rule that their bond should be set in an amount $442,363 less than that required by Rule 26. The basis of the motion was that plaintiffs disagreed with the IRS computations about their tax credits. Simultaneously with their motion, plaintiffs submitted to the clerk of the court a bond which was $442,363 less than the net amount of excessive profits as determined by the board. Defendant then filed a motion for judgment in aid of execution of the board’s orders and opposed plaintiffs’ motion of October 11.

"In an order issued December 20, 1977, Trial Judge Mastin G. White denied plaintiffs’ motion of October 11, saying:

Provided, however, That the denial of the pending motion is without prejudice to the filing hereafter by the plaintiffs (having first filed a bond complying fully with paragraph (b) of Rule 26) of a motion seeking relief under paragraph (e) of Rule 26 with respect to recomputation of their section 1481 credits.

"The trial judge certified his ruling to the court for review. Defendant requested prompt review and opposes the trial judge’s order as contrary to Rule 26 and 50 U.S.C. App. § 1218 (Supp. V 1975).

"We have carefully considered the representations of the parties in this matter, believe that the trial judge was correct and believe that the legitimate interests of defendant will be fully protected if plaintiffs post the bond required by Rule 26(b). This is not the proper time to determine plaintiffs’ tax credits. Manufacturers Serv. Co. v. United States, 207 Ct. Cl. 185, 194, 518 F.2d 1202, 1207 (1975).

"it is therefore ordered that the relief demanded in defendant’s request for review is denied without prejudice. Defendant’s motion for judgment is denied without prejudice. The order of the trial judge is affirmed. Plaintiffs ,are directed to file a bond or bonds in conformity with the rule forthwith. Upon their failure to do so, the court will entertain a renewal of defendant’s motion for judgment in aid of execution.”  