Free Motion for Extension of Time to File Response/Reply - District Court of Federal Claims - federal

Case 1:06-cv-00407-ECH

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS No. 06-407 T (into which have been consolidated Nos. 06-408 T, 06-409 T, 06-410 T, 06-411 T, 06-810 T, 06-811 T) Judge Emily C. Hewitt (E-Filed: August 6, 2007) ALPHA I, L.P., BY AND THROUGH ROBERT SANDS, A NOTICE PARTNER ) ) ) Plaintiff, ) ) v. ) ) THE UNITED STATES, ) ) Defendant. ) __________________________________________) BETA PARTNERS, L.L.C., BY AND THROUGH ) ROBERT SANDS, A NOTICE PARTNER ) ) Plaintiff, ) ) v. ) ) THE UNITED STATES, ) ) Defendant. ) __________________________________________) ) R, R, M & C PARTNERS, L.L.C., BY AND ) THROUGH R, R, M & C GROUP, L.P., A ) NOTICE PARTNER, ) ) Plaintiff, ) ) v. ) ) THE UNITED STATES, ) ) Defendant. ) __________________________________________)

06-407 T

06-408 T

06-409 T

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) R, R, M & C GROUP, L.P., BY AND THROUGH ) ROBERT SANDS, A NOTICE PARTNER ) ) Plaintiff, ) ) v. ) ) THE UNITED STATES, ) ) Defendant. ) __________________________________________) ) CWC PARTNERSHIP I, BY AND THROUGH ) TRUST FBO ZACHARY STERN U/A FIFTH G. ) ANDREW STERN AND MARILYN SANDS, ) TRUSTEES, A NOTICE PARTNER, ) ) Plaintiff, ) ) v. ) ) THE UNITED STATES, ) ) Defendant. ) __________________________________________) ) MICKEY MANAGEMENT, L.P., BY AND ) THROUGH MARILYN SANDS, A NOTICE ) PARTNER, ) ) Plaintiff, ) ) v. ) ) THE UNITED STATES, ) ) Defendant. ) __________________________________________)

06-410 T

06-411 T

06-810 T

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) M, L, R & R, BY AND THROUGH RICHARD E. ) SANDS, TAX MATTERS PARTNER, ) ) Plaintiff, ) ) v. ) ) THE UNITED STATES, ) ) Defendant. ) __________________________________________)

06-811 T

UNITED STATES' OPPOSED MOTION TO EXTEND TIME TO RESPOND TO PLAINTIFFS' CROSS MOTION FOR SUMMARY JUDGMENT The United States moves this Court for an Order extending the time for it to respond to the Plaintiffs' Cross Motion for Summary Judgment and Response to the United States' Motion for Summary Judgment. The United States must file its Response by August 7, 2007. The United States requests this Court to extend the date for filing its response by 30 days. In support hereof, the United States would respectfully show that the motion should be granted for the following reasons: (1) In their Cross-Motion for Summary Judgment, the plaintiffs raised a "reasonable

cause" defense to the application of accuracy related penalties. In order to properly respond to this defense (which was not addressed in the United States' Motion for Summary Judgment), additional discovery will be needed. (2) On July 25, 2007, counsel for the United States received additional documents

consisting of business records and files of The Heritage Organization, which will be helpful in responding to plaintiffs' "reasonable cause" defense. The IRS obtained these documents from the Trustee in The Heritage Organization bankruptcy. The United States provided a copy of these documents to plaintiffs on July 31, 2007. It is anticipated that additional documents will be

forthcoming as the IRS continues its review of The Heritage Bankruptcy files. The United States

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will need additional time to respond to plaintiffs' Cross-Motion for Summary Judgment since it will need time to evaluate the information received from the bankruptcy trustee and determine whether the information can be incorporated into its Response. (3) The United States also needs deposition testimony from witnesses who have not yet

been deposed to properly respond to Plaintiffs' Cross-Motion for Summary Judgment. The parties have been trying to schedule several depositions over the past month. Some of these depositions have taken place, including one in Dallas, Texas on July 17, 2007 and two depositions on July 31, 2007 in Rochester, New York. The parties received an extension of time to conduct fact discovery until August 29, 2007. Because the parties are still completing depositions, the United States will need to evaluate this testimony to determine its effect on its Response to the Cross-Motion for Summary Judgment. In fact, the United States will be deposing several former employees of The Heritage Organization regarding certain information obtained from the bankruptcy trustee. These depositions may be important in responding to the plaintiffs' Cross-Motion for Summary Judgment. (4) Over the past month, the parties have been working towards completion of fact

discovery. The plaintiffs served First Request for Admissions, a Second Request for Production and a Second request for Interrogatories on the United States on June 29, 2007. The Plaintiffs' Request for Admissions contained 100 admissions. The United States has worked diligently over the past 30 days to complete its discovery responses, which the United States served on plaintiffs on July 31, 2007. The United States was also required to file a Motion for Protective Order regarding the deposition of its 30(b)(6) witness. (5) The United States' response to the plaintiffs' cross motion must go through an

extensive review process in Washington D.C.

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(6)

Accordingly, the United States requests an additional 30 days to respond to the

Plaintiffs' Cross Motion for Summary Judgment and Response to the United States' Motion for Summary Judgment. (5) (6) Additional time will not impact scheduling since no trial date has been set. Plaintiffs oppose the requested extension. CONCLUSION For the reasons stated above, the United States respectfully prays that the Court enter an order extending the time by 30 days for it to respond to the Plaintiffs' Cross Motion for Summary Judgment and Response to the United States' Motion for Summary Judgment. Respectfully submitted,

/s/ Thomas M. Herrin THOMAS M. HERRIN Attorney of Record Tax Division Department of Justice 717 N. Harwood, Suite 400 Dallas, Texas 75201 (214) 880-9745 / (214) 880-9762 (214) 880-9742 (FAX) EILEEN J. O'CONNOR Assistant Attorney General DAVID GUSTAFSON Chief, Court of Federal Claims Section LOUISE HYTKEN Chief, Southwestern Civil Trial Section MICHELLE C. JOHNS Trial Attorney LOUISE P. HYTKEN Of Counsel

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