Free Stipulation - District Court of Federal Claims - federal

Case 1:07-cv-00209-MBH

Document 17

Filed 11/13/2007

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS (Judge Marian Blank Horn) No. 07-209 T ________________________ IMPRIMIS INVESTORS LLC, WEXFORD SPECIAL SITUATIONS 1997 INSTITUTIONAL, LP, TAX MATTERS PARTNER, Plaintiff, v. THE UNITED STATES OF AMERICA, Defendant. __________________________ JOINT STATEMENT OF ISSUES OF LAW __________________________ Pursuant to this Court=s order, dated July 30, 2007, Plaintiffs, Imprimis Investors LLC ("Imprimis" or "Partnership") and Wexford Special Situations 1997 Institutional, LP ("Wexford" or "TMP"), Participating Partner, Insight Venture Associates II, LLC ("Insight"), and Defendant, the United States, respectfully submit this joint statement of issues of law. The parties have identified five main issues of law, and agree that these issues will need to be resolved in this litigation. Those issues are set forth in paragraphs 1 through 5 below. The parties have been as thorough and comprehensive as possible in preparing this joint statement of issues of law based on the information currently available. However, the parties agree that as the case proceeds, it may be necessary to raise and/or respond to additional issues of law. Accordingly, the parties reserve the right to raise additional issues of law in subsequent filings.

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Case 1:07-cv-00209-MBH

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1. Whether the Amended and Restated Limited Liability Company Agreement of Imprimis Investors LLC, dated September 30, 1998 ("Imprimis LLC Agreement")1, as applicable to the Imprimis 2000 tax year, provided a special allocation to Insight of items of short term capital gain. 2. What is the effect, if any, of the executed settlement of the claims by Insight and Imprimis in a lawsuit filed in the New York Supreme Court (the "Settlement Agreement")2 on the tax dispute at issue in this TEFRA proceeding, which arose from the allocation of partnership income to Insight as reflected in the Imprimis partnership tax return for the 2000 tax year3 and the related Schedule K-1 issued to Insight?4 3. Whether this Court has jurisdiction in this TEFRA proceeding to hear an estoppel claim or argument. 4. If the answer to issue number 3 is in the affirmative, whether Insight is estopped from asserting in this proceeding that the Imprimis partnership return for the 2000 tax year and the related Schedule K-1 issued to Insight reflect an incorrect or improper allocation of ordinary income and short term capital gain to Insight.

This document is Exhibit 1 to the Joint Stipulation of Facts filed on the same date as this Joint Statement of Issues of Law. This document is Exhibit 31 to the Joint Stipulation of Facts filed on the same date as this Joint Statement of Issues of Law. Pursuant to the agreement of the parties, Exhibit 31 is not included in this submission so that the parties may try to resolve certain confidentiality concerns. This document is Exhibit 3 to the Joint Stipulation of Facts filed on the same date as this Joint Statement of Issues of Law. This document is Exhibit 5 to the Joint Stipulation of Facts filed on the same date as this Joint Statement of Issues of Law.
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Case 1:07-cv-00209-MBH

Document 17

Filed 11/13/2007

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5. Whether Internal Revenue Code § 704(b) mandates a reallocation of the ordinary income and/or short term capital gain that was allocated to Insight pursuant to the Imprimis partnership return for the 2000 tax year and the related Schedule K-1 issued to Insight.

Respectfully submitted,

s/ Charles M. Ruchelman CHARLES M. RUCHELMAN Caplin & Drysdale, Chartered One Thomas Circle, NW Washington, D.C. 20005 Telephone: (202) 862-7834 Facsimile: (202) 429-3301 Email: [email protected] Counsel of Record for Plaintiff

s/ Jennifer P. Wilson . JENNIFER P. WILSON Attorney of Record U.S. Department of Justice - Tax Division Court of Federal Claims Section Post Office Box 26 Ben Franklin Station Washington, D.C. 20044 Telephone: (202) 307-6495 Facsimile: (202) 514-9440 Email: [email protected]

s/ William F. Nelson . WILLIAM F. NELSON McKee Nelson LLP 1919 M Street, NW Washington, D.C. 20036 Telephone: (202) 775-8582 Facsimile: (202) 775-8586 Email: [email protected] Counsel of Record for Participating Partner

RICHARD T. MORRISON Acting Assistant Attorney General DAVID GUSTAFSON Chief, Court of Federal Claims STEVEN I. FRAHM Assistant Chief, Court of Federal Claims s/ Steven I. Frahm Of Counsel Attorneys for Defendant .

November 13, 2007

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