Free Notice (Other) - 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.06-407T
(into which have been consolidated Nos. 06-408T, 06-409T, 06-4 lOT, 06-411 T, 06-81 OT,

06-811 T)

Judge Emily C. Hewitt
) ) ) ) ) ) ) ) )
) ) )

ALPHA I, L.P., BY AND THROUGH ROBERT SANDS, A NOTICE PARTNER
Plaintiff,
v.

No. 06-407T

THE UNITED STATES,
Defendant.

BETA PARTNERS, L.L.C, BY AND THROUGH ) ALPHA I, L.P., A NOTICE PARTNER )
)

Plaintiff,
v.

) )

THE UNITED STATES, Defendant

) ) ) )
)

No. 06-408T

R,R,M & C PARTNERS, L.L.C., BY AND THROUGH R,R,M & C GROUP, L.P., A NOTICE PARTNER, Plaintiff,
v.

) )
) ) ) ) )

No.06-409T

THE UNITED STATES,
Defendant.

) ) )
)

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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.
) ) ) ) ) ) ) )
) )

) ) ) ) ) ) ) ) )

No. 06-410T

No. 06-411 T

THE UNITED STATES,
Defendant.

MICKEY MANAGEMENT, L.P., BY AND THROUGH MARILYN SANDS, A NOTICE PARTNER, Plaintiff,
v.

) )

) ) )

)
) ) )
)

No.06-810T

UNITED STATES OF AMERICA, Defendant.

)

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M, L, R & R, BY AND THROUGH RICHARD E. )

)

SANDS, TAX MATTERS PARTNER, )
)

Plaintiff,
v.

)
)

UNITED STATES OF AMERICA, Defendant.

) ) ) )
)

No. 06-811 T

PLAINTIFFS' RULE 30(b)(6) NOTICE TO DEFENDANT
Please take notice that commencing at 9 a.m. on Friday, July 20, 2007 at the offices of
the Department of Justice at 717 N. Harwood, Suite 400, Dallas, Texas 75201, or other such

place(s) and time(s) agreed upon by counsel for the paries, Plaintiffs wil take the deposition of
Defendant United States by oral examination ofwitness(es) designated by the United States to

testify concerning the subjects listed below. Pursuant to RCFC 30(b)(6), the person(s)

designated by Defendant United States wil be examined and should be prepared to testify as to
such matters known or reasonably available to Defendant

The deposition wil be recorded by stenographic means by a court reporter duly

authorized to administer oaths. The oral examination wil continue from day to day until
completed. Defendant is requested, prior to Friday, July 13, to provide counsel for Plaintiffs a
written designation of the name and position of

the person(s) designated to testify concerning the

matters set forth below and, for each identified person, the matters on which he or she wil
testify.

The matters for which Plaintiffs request Defendant to designate one or more persons to
testify on its behalf are as follows:

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1. The identity and contents of documents produced in defendant's Rule 26(a)

disclosures or in response to plaintiffs' discovery requests, including, but not

limited to the documents in defendant's administrative fie(s) relating to the audits
of plaintiffs.
2. The identity and contents of documents in files of The Heritage Organization LLP

reviewed by defendant's agents incident to their work in this matter.
3. The identity and contents of documents from the fies of any other third parties

(individuals or entities other than plaintiffs, plaintiffs' partners, or the Heritage Organization) reviewed by defendant's agents incident to their work in this
matter.
4. The conduct of the IRS audits of

plaintiffs and their partners, including, but not
Beginning of Administrative Proceeding,

limited to issuance of

the Notices of

issuance of information document requests, responses to information document
requests, summonses, and interviews.
5. The facts and mixed matters of

fact and law (including conclusions and opinions)

upon which defendant based its determinations/adjustments in the following
portions of the FP AAs issued to plaintiffs:
a. Items I - iv and Vi - VIIi of the Explanation of Adjustments to Partnership

Items and Partnership Level Determinations in the FP AA issued to R, R, M &
C Group, L.P.
b. Items I and II of the Explanation of Adjustments to Partnership Items and

Partnership Level Determinations in the FP AA issued to Mickey
Management, L.P.

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c. Items I and III of

the Explanation of Adjustments to Partnership Items and

Parnership Level Determinations in the FP AA issued to M, L, R & R.
d. Items I - II and V of the Explanation of Adjustments to Partnership Items and

Partnership Level Determinations in the FP AA issued to CWC Partnership i.
e. Items I - II and V - VI of the Explanation of Adjustments to Partnership

Items and Partnership Level Determinations in the FP AA issued to R, R, M &
C Partners, LLC.
f. Items I - II and IV - V of the Explanation of Adjustments to Partnership

Items and Partnership Level Determinations in the FP AA issued to Beta

Parners, LLC.
g. Items I - II and IV - V of

the Explanation of Adjustments to Partnership

Items and Partnership Level Determinations in the FP AA issued to Alpha I,
L.P.
6. The conduct of

the IRS in determining to apply accuracy-related penalties to

Plaintiffs, including but npt limited the following:
a. The facts gathered, di$covered, or relied on to support the IRS's alternative

determination that plaintiffs failed to make a reasonable attempt to comply
with the provisions of!the Internal Revenue Code or were careless, reckless or
intentionally disregar~ed any rules or regulations.
b. The facts gathered, di~covered, or relied on to support the IRS's alternative

determination that pla~ntiffs' made substantial understatements.
c. The facts gathered, disicovered, or relied on to support the IRS's alternative

determination that anyl such understatement should not be reduced because

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such understatement was attributable to tax treatment of an item for which
there was substantial ¡authority or was attributable to the tax treatment of an

item which was adequately disclosed on the tax return and for which there
was a reasonable basis.
d. The facts gathered, discovered, or relied on to support the IRS's alternative

determination that plaintiffs' made a substantial valuation misstatement,
including any appraisals or calculations.
e. The facts gathered, discovered, or relied on to support the IRS's alternative

determination that plaintiffs' made a gross valuation misstatement, including
any appraisals or calculations.
7. The facts, mixed matters of fact and law, and underlying documents relating

directly or indirectly to the reasonable cause, good faith, or negligence of:

a. Plaintiffs.
b. Partners or Members of Plaintiffs.
8. The Internal Revenue Service's interpretation and application of I.R.C. § 752

prior to 1995 and in the years from 1995 to 2002, including but not limited to the
following:
a. The identity and contents of documents prepared, relied upon, or used by the

IRS in formulating its position with respect to the definition of "liability" in
revenue rulings, revenue procedures, private letter rulings, technical advice
memorandums, general counsel memorandums, briefs, or other IRS

documents under I.R.C. § 752 (including documents relating to the ongoing

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i

consideration, recons~deration, development, interpretation or application of

the documents to sho~ sales such as the short sales at issue in this case).
b. The identity and cont nts of documents of

the defendant, including LMSB,

SB/SE, Appeals Divi ion, and Chief Counsel, citing or discussing Helmer v.

Commissioner, T.C. emo 1975-160 in the context ofInternal Revenue Code
§ 752.

c. The identity and cont nts of documents relating to the decision of the IRS to
promulgate Treas. Re . § 1.752-6, including background and information
notes with respect to uch regulation.

d. The identity and cont nts of documents relating to the authority of

the IRS to

promulgate Treas. Re . § 1.752-6.

e. The identity and cant nts of documents relating to the constitutionality of
Treas. Reg. § 1.752-6

f. The identity and cant nts of documents relating to the determination of the
IRS to make the exce tion described in Treas. Reg. § 1.752-6 inapplicable to

assumptions of liabili ies by partnerships as par of a transaction the same as
or substantially simil r to any transaction described in Notice 2000-44.

g. The identity and cant nts of documents relating to the determination of the
IRS to dispense with he notice and comment requirements of the
Administrative Proce ure Act when promulgating Treas. Reg. § 1.752-6.

h. The identity and cont nts of documents relating to the determination by the
IRS that Treas. Reg. 1.752-6 is not a "significant regulatory action" within
the meaning of

Execu ive Order 12866.

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1. The identity and cont nts of documents relating to the promulgation of Treas.

Reg. § 1.752-6, suchs background information notes, the "Regulation File"
and drafts of the regu ation.

J. The identity and cont nts of documents relating to the decision of the IRS to
issue Revenue Rulin 95-26, including background and information notes,
drafts, correspondenc , and other documents with respect to such ruling.
k. The identity and con nts of documents relating to the issuance of Revenue

Ruling 95-26, includi g background and information notes, drafts,
correspondence, and ther documents with respect to such ruling.

Dated: July 9, 2007

Thomas A. Cullinan Sutherland Asbil & Brennan LLP 999 Peachtree Street, N.E. Atlanta, Georgia 30309 (404) 853-8075
(404) 853-8806 (fax)
Of Counsel:

N. Jerold Cohen Joseph M. DePew Julie P. Bowling Sutherland Asbil & Brennan LLP 999 Peachtree Street, N.E. Atlanta, Georgia 30309 (404) 853-8000
(404) 853-8806 (fax)

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Lewis S. Wiener Sutherland, Asbil & Brennan LLP 1275 Pennsylvania Ave., N.W. Washington, D.C. 20004
TeL.: (202) 383-0140 Fax: (202) 637-3593

Email: lewis.wiener(fsablaw.com
Kent L. Jones Sutherland, Asbil & Brennan LLP 1275 Pennsylvania Ave., N.W. Washington, D.C. 20004
Tel. (202) 383-0732 Fax: (202) 637-3593

Attorneys for Plaintiffs

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CERT ; ICA TE OF SERVICE

IT is HEREBY CERTIFIED th service ofthe foregoing Plaintiffs' Rule 30(b)(6)
Notice to Defendant has been made on ~ ly 9, 2007 by mailing a copy thereof i i

to:

homas M. Herrin

A rney, Tax Division D Parment of Justice
/¿'A~ . ~ ./" _:7 ' . Harood, Suite 400

~ L~. ,alias, TX 75201
Thomas A. Cullinan Sutherland Asbill & Brennan LLP
999 Peachtree Street, N .E.

Atlanta, Georgia 30309 (404) 853-8075
(404) 853-8806 (fax)
Of Counsel:

N. Jerold Cohen Joseph M. DePew Julie P. Bowling Sutherland Asbil & Brennan LLP
999 Peachtree Street, N.E.

Atlanta, Georgia 30309 (404) 853-8000
(404) 853-8806 (fax)

Lewis S. Wiener Sutherland, Asbil & Brennan LLP 1275 Pennsylvania Ave., N.W. Washington, D.C. 20004
TeL.: (202) 383-0140 Fax: (202) 637-3593
Email: lewis.wiener(fsablaw.com

AO 1716082.1