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: April 9, 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

Case 1:06-cv-00407-ECH

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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' UNOPPOSED MOTION TO EXTEND TIME TO RESPOND TO PLAINTIFFS' MOTION TO SUBSTITUTE PARTIES AND TO DISMISS CERTAIN CAUSES OF ACTION FOR LACK OF JURISDICTION On March 27, 2007, plaintiffs filed a Motion to Dismiss Certain Parties and Causes of Action for Lack of Jurisdiction. On March 29, 2007, the Court ordered plaintiffs to refile their motion as a Motion to Substitute Parties in addition to, or in place of a motion to dismiss. At the same time, the Court ordered any response to the motion to be filed within fourteen days after the pleading was refiled. Plaintiffs complied and refiled on March 29, 2007. The Clerk's electronic filing designation states that the United States' response is due April 16, 2007. The United States requests an extension, until May 1, 2007, to file its response to plaintiffs' motion. 26 U.S.C. §6226(c) makes all partners to a partnership during the taxable year at issue, automatically a party to a suit challenging an FPAA. Assuming the Robert Sands Charitable Remainder Unitrust-2001 (the "CRUT") was a partner in R,R,M & C Group, L.P., during 2001 (the year covered by the challenged FPAA), the CRUT is already a party to this proceeding. As such, and on the surface, plaintiffs' motion appears to be merely an attempt to substitute parties to avoid tendering the deposits pleaded by plaintiffs as a jurisdictional prerequisite to bringing suit. In fact, however, it is an attempt, through an unsupported procedural motion, to obtain a

Case 1:06-cv-00407-ECH

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ruling on whether the IRS may use an FPAA to challenge a sham transaction in a partnership proceeding. In this light, plaintiffs' motion requires a much more detailed and elaborate response. Additionally, because this case involves a Son of BOSS abusive tax shelter, the Department of Justice has established a more comprehensive review process for pleadings filed by the Government in this case. Additional time is needed to complete this process. On April 6, 2007, the undersigned spoke with plaintiffs' counsel who stated that plaintiffs do not oppose an extension until May 1, 2007 for the United States to respond to plaintiffs' motion.

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Case 1:06-cv-00407-ECH

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For the reasons set out above, the United States respectfully requests that the time for it to respond to Plaintiffs' Motion to Substitute Parties and to Dismiss Certain Causes of Action for Lack of Jurisdiction be extended until May 1, 2007. 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 /s/ Louise Hytken Of Counsel

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