Free Response to Motion - District Court of Federal Claims - federal

Case 1:07-cv-00306-VJW

Document 8

Filed 09/12/2007

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS _________________________ No. 07-306T (Judge Victor J. Wolski)

JOYCE A. RINEER, Plaintiff v. THE UNITED STATES, Defendant ________________________ PLAINTIFF'S RESPONSE TO DEFENDANT'S MOTION FOR SUSPENSION OF PROCEEDINGS ________________________ Plaintiff, Joyce A. Rineer, by and through the undersigned counsel, files this response to Defendant's Motion for Suspension of Proceedings. Plaintiff filed her complaint in this matter seeking a refund pursuant to Section 6672 of the Internal Revenue Code. The assessment against Plaintiff was made on April 7, 1999. An assessment was also made against Rose Washington on the same date. A suit for the recovery of any internal revenue tax can be brought either in the United States Court of Federal Claims or in the United States District Court for the district in which venue is proper. Both tribunals have concurrent original jurisdiction that is nearly identical in scope. 28 U.S.C. §1346. Plaintiff is free to choose the trial forum of her choice. This Court has discretion in retaining jurisdiction over this case. Defendant has delayed any collection action for over eight years. Now that Plaintiff has elected to have her liability determined by this Court,

Case 1:07-cv-00306-VJW

Document 8

Filed 09/12/2007

Page 2 of 2

Defendant seeks to deprive her of the forum she has selected. Once a tax refund suit is filed in one forum, a taxpayer generally cannot revise the decision that has been made and thereafter file and prosecute in the other forum a second refund suit for the same taxable period. Defendant should be held to the same standard. A not uncommon situation arises where a taxpayer contesting a Section 6672 trust fund penalty is a plaintiff in this Court and is also a defendant in a collection action or a counterclaim defendant in another refund suit in the United States District Court involving the identical issues. In these circumstances, this Court should not apply any firm rule, but weigh the particular facts and circumstances in determining which action should proceed. This Court should deny Defendant's Motion for Stay of Proceedings and allow Plaintiff to continue her action in this Court. Respectfully submitted, TOWNSEND & JONES, L.L.P.

Dated: September 12, 2007

s/ Lawrence R. Jones, Jr. LAWRENCE R. JONES, JR. 8100 Lomo Alto, Suite 238 Dallas, Texas 75225 (214) 696-2661 (214) 764-3320 - Fax ATTORNEYS FOR PLAINTIFF

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