Free Proposed Additional Facts - District Court of Federal Claims - federal

Case 1:01-cv-00256-CFL

Document 93

Filed 04/18/2008

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS __________ Nos. 01-256 T and 01-257 T (Judge Charles Lettow) __________

MARRIOTT INTERNATIONAL RESORTS, L.P., MARRIOTT INTERNATIONAL JBS CORPORATION, TAX MATTERS PARTNER, Plaintiff v. THE UNITED STATES, Defendant.

______________________ DEFENDANT'S SUPPLEMENTAL PROPOSED FINDINGS OF UNCONTROVERTED FACT ______________________ Defendant, the United States, in accordance with Rule 56(h) of the Rules of the Court of Federal Claims, submits the following supplemental proposed findings of uncontroverted fact:1

Only for purposes of this motion for summary judgment, defendant assumes that the information contained in its supplemental proposed findings of uncontroverted fact, which was derived from documents produced by plaintiff and deposition testimony, is true and accurate. If this case proceeds to trial, however, defendant reserves the right to challenge the truth, accuracy, and/or credibility of all such information. Moreover, defendant reserves the right to challenge the transactions engineered by Marriott on the grounds that they were factual shams and/or they lack economic substance. See Coltec Indus., Inc. v. United States, 454 F.3d 1340, 1347 (Fed. Cir. 2006), cert. denied, 127 S. Ct. 1261 (2007); Jade Trading, LLC v. United States, No. 032164 T, WL 4553043 (Fed.Cl., December 21, 2007). -1-

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Case 1:01-cv-00256-CFL

Document 93

Filed 04/18/2008

Page 2 of 3

38.

Credit Suisse First Boston confirmation statements for the short sale transactions at issue show the amount of 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.)2

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, 47-52.)

40.

Mr. Hahn is a self-described engineer of "smart, cutting edge financial programs that . . . deliver powerful tax advantages." (Def. Ex. 14 at 15.)

Defendant's exhibits 13 and 14 are attached to the Second Declaration of G. Robson Stewart, filed herewith. -2-

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Case 1:01-cv-00256-CFL

Document 93

Filed 04/18/2008

Page 3 of 3

Respectfully submitted,

s/G. Robson Stewart G. ROBSON STEWART U.S. Department of Justice - Tax Division Court of Federal Claims Section Post Office Box 26 Ben Franklin Station Washington, DC 20044 tel: (202) 307-6493 fax: (202) 514-9440 JOHN A. DICICCO Deputy Assistant Attorney General DAVID GUSTAFSON Chief, Court of Federal Claims Section MARY M. ABATE Assistant Chief, Court of Federal Claims Section s/Mary M. Abate Of Counsel Dated: April 18, 2008

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