Free Response to Proposed Findings of Uncontroverted Fact - District Court of Federal Claims - federal

Case 1:01-cv-00256-CFL

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS MARRIOTT INTERNATIONAL RESORTS, L.P., MARRIOTT INTERNATIONAL JBS CORPORATION, Tax Matters Partner, Plaintiffs, v. THE UNITED STATES, Defendant. ) ) ) ) ) ) ) ) ) ) ) ) ) )

Nos. 01-256T and 01-257T Judge Charles F. Lettow

PLAINTIFFS' RESPONSE TO DEFENDANT'S SUPPLEMENTAL PROPOSED FINDINGS OF UNCONTROVERTED FACTS In accordance with Rule 56(h)(2) of the Rules of the United States Court of Federal Claims, Plaintiffs hereby submit their Response to Defendant's Supplemental Proposed Findings of Uncontroverted Facts. Plaintiffs' responses are set forth in italics following each proposed finding of uncontroverted fact. 38. Credit Suisse First Boston confirmation statements for the short sale transactions at issue show the amount for the proceeds from each short sale and the value of collateral required for each short sale transaction (the short sale proceeds plus or minus any additional margin requirement). (Def. Ex. 13; see Def. Ex. 4.) Agrees, but only that each CSFB confirmation statement shows the value of the collateral on the specific date noted in the confirmation statement.

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39.

Roy Hahn was involved in the discussions between CSFB and Marriott with respect to the implementation of a series of transactions engineered to produce a significant tax loss. (Pl. Ex. 1 at 7; Def. Ex. 14 at 22-23, 30, 4752.) Disagrees. The referenced citations to Mr. Hahn's deposition do not support the proposed finding of uncontroverted fact. Mr. Hahn testified on page 38 of his deposition (see Def. Ex. 14) that he was unaware, until conversations with Defendant's counsel, that Marriott had "engaged CSFB to work on a transaction that was similar to this presentation." In fact, this only represented Defendant's counsel's theory of the case, which he apparently shared with Mr. Hahn some time prior to Mr. Hahn's deposition. Subsequently, on pages 44 and 45 of his deposition (see Def. Ex. 14), Mr. Hahn and his counsel clarified that Mr. Hahn had no personal knowledge of and was not testifying that the transaction Marriott actually engaged in was similar to the transaction that CSFB had proposed to Marriott.

40.

Mr. Hahn is a self-described engineer of "smart, cutting edge financial programs that . . . deliver powerful tax advantages." (Def. Ex. 14 at 15.) Disagrees. In fact, the quoted language is an edited excerpt of Defendant's counsel's question to Mr. Hahn based on a description which appears on the website of Mr. Hahn's employer at the time of his deposition. The pertinent question and answer exchange from Mr. Hahn's deposition reads as follows:

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Q.

A.

Q. A. Q. A. Q. A.

Now, back to page 8 again. Where it says "Tax and Accounting." And it says "Tax and Accounting: Leader of Chenery's West Coast operations, Roy Hahn specializes in understanding the complexity of today's tax codes while anticipating the changes of tomorrow. With years of experience working for the world's top accounting firms, Roy is able to engineer smart, cutting-edge financial programs that leverage current economic climates and deliver powerful tax advantages." Can you tell me what "engineer smart, cutting-edge financial programs" means? I guess focusing on the word "engineer." Well, the -- many of our clients are international companies that have the need to harmonize both accounting and tax regimes in varying countries. So I think the word "engineer" was an attempt to capture the need to achieve that harmonization in dealing in varying jurisdictions. Okay. So does "engineer" mean to develop? Is that -- or design? Yes. Okay. Yes. And, then, what does "leverage current economic climates" mean? What is that referring to? I believe it would mean that in trying to come up with advice to clients, being abreast of economic -- economic situations around the world are a part of engineering an effective strategy.

See Def. Ex. 14, at 15-16.

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Respectfully submitted, May 9, 2008 s/Harold J. Heltzer Harold J. Heltzer (Attorney of Record) Robert L. Willmore Alex E. Sadler CROWELL & MORING LLP 1001 Pennsylvania Avenue, N.W. Washington, D.C. 20004 Tel: (202) 624-2915 Fax: (202) 628-5116 Counsel for Plaintiffs
5564009

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