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

Case 1:07-cv-00139-MCW

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Filed 06/25/2007

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS ______________________________

No. 07-139 T (Honorable Mary Ellen Coster Williams)

STAPLES, INC., Plaintiff, v. THE UNITED STATES, Defendant. __________________ JOINT PRELIMINARY STATUS REPORT __________________ Pursuant to paragraphs 4 and 5 of RCFC Appendix A, the parties submit the following information: a. JURISDICTION

Plaintiff's Statement Plaintiff asserts that the Court has jurisdiction over each tax quarter in this suit pursuant to 28 U.S.C. § 1346(a)(1). Defendant's Statement Defendant avers that jurisdiction, to the extent it exists in this case, is conferred by 28 U.S.C. § 1491. b. CONSOLIDATION

The parties do not believe that this case should be consolidated with any other case before the Court of Federal Claims at this time.

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c.

BIFURCATION OF TRIAL

In the event of a trial in this case, the parties believe that separate trials on the questions of liability and damages are unnecessary, and all evidence necessary to resolve both questions should be presented together. We would ask the Court initially to determine the question of liability only, and afterwards, depending upon the Court's ruling on the merits of the dispute, permit the parties a reasonable period to perform and agree upon any necessary computation of the tax and interest due, so that the parties can submit a stipulation as to the amount of any judgment. This will avoid devoting unnecessary attention to computations at trial. d. DEFERRAL OF PROCEEDINGS

The parties do not believe that the proceedings should be deferred pending consideration of any other case. The parties know of no basis for transferring this case to another tribunal. e. REMAND OR SUSPENSION

Not applicable. f. ADDITIONAL PARTIES

The parties do not know of any other additional parties to be joined. g. DISPOSITIVE MOTIONS

In the event there are no jurisdictional defects, neither party intends to file a dispositive motion at this point in the litigation.

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h.

ISSUES

The fundamental issue in a tax refund suit is whether the taxpayer can establish that it has overpaid its taxes for the periods in suit. See Lewis v. Reynolds, 284 U.S. 281 (1932); Dysart v. United States, 340 F.2d 624 (Ct. Cl. 1965). The specific substantive issues are whether the telephone services plaintiff purchased are subject to the communications excise tax imposed by § 4251 of the Internal Revenue Code and, if not, the amount of taxes plaintiff can establish that it paid on those services. i. SETTLEMENT

The parties believe that this case may be susceptible to settlement. j. TRIAL

In the event of a trial in this case, the parties state the courthouse of the Court of Federal Claims in Washington, D.C. as an appropriate location for such event. k. ELECTRONIC CASE MANAGEMENT

The parties are not aware of any special issues regarding electronic case management needs. l. OTHER INFORMATION

Plaintiff's Statement Plaintiff will move the Court to enter a protective order to maintain the confidentiality of Plaintiff's telecommunications contracts and the provisions contained in those agreements.

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PROPOSED DISCOVERY PLAN The parties request an initial period of 90 days to attempt to resolve this case, during which time plaintiff will informally provide what it intends as substantiating evidence regarding the payment of the excise taxes in dispute, and defendant will review such evidence with the hope that it will enable the parties to resolve the case without further judicial intervention. If the parties are unable to resolve the case within that time, they will propose a course of further proceedings, which would include additional time to perform any necessary discovery. Plaintiff joins in this status report, and has authorized defendant to sign in its behalf. Respectfully submitted, s/Paul L. Kattas Paul L. Kattas, Esq. Joseph A. Boyle, Esq. Jacob J. Miles, Esq. KELLEY DRYE & WARREN LLP 200 Kimball Drive Parsippany, New Jersey 07054 Attorneys for Plaintiff June 25, 2007 s/Jacob Christensen JACOB E. CHRISTENSEN 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 Voice: (202) 307-0878 Fax: (202) 514-9440 Email: [email protected] EILEEN J. O'CONNOR Assistant Attorney General DAVID GUSTAFSON Chief, Court of Federal Claims Section G. ROBSON STEWART Reviewer s/G. Robson Stewart Of Counsel June 25, 2007

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