On appeal, a panel of the Seventh Circuit affirmed the district court's declaration that the buildings were not subject to taxation because Illinois law exempted from local taxation property "that is being purchased by a governmental body under an installment contract. . . ." See United States v. County of Cook, Illinois, 725 F.2d 1128, 1130 (7th Cir. 1984) (quoting Ill. Rev. Stat. ch. 120, ¶ 500.9a), overruled-in-part by United States v. Hynes, 20 F.3d 1437 (7th Cir. 1994) (en banc).

EASTERBROOK, Circuit Judge. This long-running dispute about real estate taxation of two buildings in which the United States was a tenant was resolved by United States v. Hynes, 20 F.3d 1437 (7th Cir. 1994) (en banc). Or so we thought.

We decline to interpret the provision in a way that would frustrate the obvious intent of Congress. See Philbrook v. Glodgett, 421 U.S. 707, 713 (1975); United States v. Hynes, 20 F.3d 1437, 1442 (7th Cir. 1994) (en banc). "Other property" must mean "other nonexempt property."

Since Cocke several judges, including Fifth Circuit judges, have, like Judge Cudahy in our case, declined to participate in the en banc decision when they took senior status after argument, citing American-Foreign. See, e.g., Latin American Citizens Council # 4434 v. Clements, 914 F.2d 620, 622 n. [*] (5th Cir. 1990) (en banc) (statement of Judge Reavley); United States v. Anderson, 885 F.2d 1248, 1249 n. [*] (5th Cir. 1989) (en banc) (statement of Judge Rubin). In at least two of our own cases before today, Silets v. U.S. Dept. of Justice, 945 F.2d 227 (7th Cir. 1991), and United States v. Hynes, 20 F.3d 1437 (7th Cir. 1994) (en banc), a senior judge of our court participated in an en banc decision in circumstances identical to those of the senior judge in Allen, but no issue was raised in either case and the matter is not discussed in either opinion. The present case, however, is an Allen case only with respect to Judge Fairchild, a member of the original panel, as the senior judges in Silets and Hynes had been.

When determining whether a state law discriminates in violation of the Supremacy Clause, "look[ing] solely at the apparent neutrality on the face of the [statute] would ... elevate form over substance, which must be avoided." United States v. Hynes, 759 F. Supp. 1303, 1306 (N.D. Ill. 1991), rev'd in part on other grounds, 20 F.3d 1437 (7th Cir. 1994) (citing Washington, 460 U.S. at 544, 103 S.Ct. 1344). In other words, "[t]he important consideration ... is not whether the State differentiates in determining what entity shall bear the legal incidence of the [state law], but whether the [state law] is discriminatory with regard to the ... burdens that result."

The United States argues that since there are no federal public parks, markets, fairgrounds, airports or educational institutions, the State of Nevada and its political subdivisions are receiving a benefit at the expense of the federal government, even if the statute is facially valid. This argument was rejected by the Seventh Circuit, sitting en banc, in United States v. Hynes, 20 F.3d 1437 (7th Cir. 1994). In Hynes, the United States purchased buildings constructed on United States government property through an installment contract.