Free Joint Status Report - District Court of Federal Claims - federal

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS No. 01-305 T (Judge Lawrence M. Baskir)

RICHARD J. CAROTA, Plaintiff v. THE UNITED STATES, Defendant.

JOINT STATUS REPORT

Pursuant to the Court's Order dated August 16, 2006 [Doc. #35], the parties provide the following status report to update the Court on the progress of Robert J. Isler and Susan L. Isler v. United States, Fed. Cl. No. 01-344 T; Jeffrey T. Scuteri v. United States, Fed. Cl. No. 01-358 T; Ronald C. and Mary G. Prati v. United States, Fed. Cl. No. 02-60 T; John F. and Pamela F. Hinck v. United States, Fed. Cl. No. 03-865 T; Kenneth C. Keener v. United States, Fed. Cl. No. 03-2028 T; William P. Smith, Jr. and Anne D. Smith v. United States, Fed. Cl. No. 04-907 T; and Donald L. and Bettye G. Dismore v. United States, Fed. Cl. No. 04-1787 T. -1-

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1.

On October 8, 2004, the Court heard oral argument in Isler,

Scuteri, and Prati. The United States filed an additional motion for partial dismissal in Isler on December 12, 2005, in Scuteri on February 3, 2006, and in Prati on June 2, 2006. Plaintiffs filed their responses in Isler and Scuteri on July 17, 2006, and their response in Prati on July 18, 2006. The United States filed its replies on August 28, 2006. On September 29, 2006, defendant filed an additional/alternative ground in support of its motion for partial dismissal in all three cases. Plaintiffs filed their responses on November 13, 2006, and the United States filed its replies on November 30, 2006. The Court held oral argument on all pending motions on May 1, 2007. Plaintiffs filed their post oral argument supplemental brief on July 5, 2007. 2. Pursuant to an opinion issued February 3, 2005, this Court

dismissed the complaint in Hinck. On May 4, 2006, the Federal Circuit affirmed. See Hinck v. United States, 446 F.3d 1307 (Fed. Cir. 2006). The Federal Circuit held that 26 U.S.C. § 6404(h) grants exclusive subject matter jurisdiction in the Tax Court to review the IRS's denials of interest abatement, and therefore the Court of Federal Claims lacks subject matter jurisdiction to do the same. See id.

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On May 21, 2007, the Supreme Court affirmed. See Hinck v. United States, 127 S.Ct. 2011 (2007). Under the Supreme Court's and Federal Circuit's decision in Hinck, the Court lacks subject matter jurisdiction over the claims for interest abatement in Glass v. U.S., 01-575 T and Lumpkin v. U.S., Fed. Cl. No. 06-94 T. Accordingly, the Court should dismiss those claims. 3. Keener and Smith were consolidated on August 11, 2005, for

briefing of dispositive motions, and the United States filed a motion for partial dismissal in Keener and Smith on November 4, 2005. On February 21/22, 2006, plaintiffs filed their response and a partial motion for summary judgment. On May 5, 2006, defendant filed a response to plaintiffs' summary judgment motion, and, on May 10, 2006, a reply to plaintiffs' response. On August 14, 2006, defendant filed an additional/alternative ground in support of its motion for partial dismissal, plaintiffs filed their response on September 23, 2006, and defendant filed its reply on October 17, 2006. On November 16, 2006, the Court held oral argument on defendant's motion to dismiss. On April 18, 2007, Judge Allegra issued an opinion in Keener and Smith, granting defendant's partial motion to dismiss for lack of jurisdiction

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taxpayers' period of limitations and tax motivated interest claims. Under the decision, the Court lacks subject matter jurisdiction over the period of limitations and tax motivated interest claims in Glass v. U.S., Fed. Cl. No. 01-575 T and Lumpkin v. U.S., Fed. Cl. No. 06-94 T. Plaintiffs' attorneys intend to appeal the decision to the Federal Circuit. Accordingly, the parties propose the Court wait until final appellate action, before dismissing the period of limitation and tax motivated interest claims in Glass v. U.S., Fed. Cl. No. 01-575 T and Lumpkin v. U.S., Fed. Cl. No. 06-94 T. Pursuant to an order issued on May 22, 2007, the Court noted the Supreme Court's decision in Hinck, and ordered the parties to file on or before June 20, 2007, a joint status report indicating how the case should proceed with respect to plaintiffs' stayed claims for interest abatement. On June 20, 2007, the parties filed a joint status report, proposing that the Court dismiss the interest abatement claims in Keener and Smith in light of the Supreme Court's decision in Hinck. On July 10, 2007, the Court ordered that, on or before August 8, 2007, a joint stipulation of dismissal of the interest abatement claims or appropriate motion be filed. 4. In Dismore, the United States filed a motion to dismiss one of

plaintiffs' two claims on January 6, 2006. Plaintiffs filed their response on

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March 7, 2006, and the United States filed its reply on March 28, 2006. The Court held oral argument on the motion on June 9, 2006. The parties submitted post-oral argument supplemental briefs on July 14, 2006. Plaintiffs filed a motion to amend their complaint on July 14, 2006, which the Court granted, thereby mooting the briefing and argument. On December 1, 2006, discovery on plaintiffs' remaining claim was stayed and a summary judgment briefing schedule entered. Defendant filed its motion for summary judgment on March 30, 2007. On May 29, 2007, the Court ordered plaintiffs' response be filed on or before June 12, 2007, or plaintiffs' case would be dismissed for lack of prosecution. No response was filed. On June 14, 2007, defendant moved the Court to rule on the merits of its summary judgment motion, rather than dismiss the case. 5. On May 22, 2007, the stay entered in the AMCOR case Charles

L. Ivey and Doris W. Ivey v. United States, Fed. Cl. No. 05-223T, automatically terminated. Defendant's answer or other response to plaintiffs' complaint is currently due on or before September 6, 2007. 6. Plaintiffs' attorney has authorized defendant's attorney to sign

this motion on his behalf.

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Respectfully submitted, 08/01/2007 s/Thomas E. Redding by s/Bart D. Jeffress Date THOMAS E. REDDING Redding & Associates, P.C. 2914 West T.C. Jester Houston, Texas 77018 (713) 965-9244 (713) 621-5227 (fax) Attorney for Plaintiffs 08/01/2007 s/Bart D. Jeffress Date BART D. JEFFRESS Attorney of Record U.S. Department of Justice Tax Division Court of Federal Claims Section Post Office Box 26 Ben Franklin Post Office Washington, D.C. 20044 (202) 307-6496 (202) 514-9440 (fax) RICHARD T. MORRISON Acting Assistant Attorney General DAVID GUSTAFSON Chief, Court of Federal Claims Section STEVEN I. FRAHM Assistant Chief, Court of Federal Claims Section 08/01/2007 s/Steven I. Frahm Date Of Counsel Attorneys for Defendant

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