Free Motion for Summary Judgment - District Court of Federal Claims - federal

Case 1:06-cv-00407-ECH

Document 106-3

Filed 07/02/2008

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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: July 2, 2008) 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

DECLARATION OF THOMAS M. HERRIN I, Thomas M. Herrin, am a Trial Attorney with the Office of the United States Department of Justice, Tax Division, and in my capacity as such, and as part of my duties, I share responsibility for representing the United States of America in the above-entitled case. Attached hereto are true and correct copies of the following: 1. Attached hereto as Exhibit 1 is a true and correct copy of selected excerpts from the oral deposition of Brian Czerwinski taken on August 28, 2007. 2. Attached hereto as Exhibit 2 is a true and correct copy of a power point presentation entitled "A Group of Strategies to Maximize Capital Preservation and Provide Investment Profits for the Sands Family, 7/30/02", which came out of the Internal Revenue Service administrative files. The Internal Revenue Service received this document from the trustee of The Heritage Organization bankruptcy. 3. Attached hereto as Exhibit 3 is a true and correct copy of a power point presentation entitled "A Group of Strategies to Maximize Capital Preservation and Provide Investment Profits for the Sands Family, 7/30/02", which came out of the Internal Revenue Service administrative files. The Internal Revenue Service received this document from the trustee of The Heritage Organization bankruptcy.

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4.

Attached hereto as Exhibit 4 is a true and correct copy of the Sands Transaction Calendar, which was provided to the United States with the Plaintiffs' Initial Disclosures.

5.

Attached hereto as Exhibit 5 is a true and correct copy of the Implementation List for Sands Family, which was provided to the United States with the Plaintiffs' Initial Disclosures.

6.

Attached hereto as Exhibit 6 is a true and correct copy of handwritten notes of Brian Czerwinski, which came out of the Internal Revenue Service administrative files. The Internal Revenue Service received this document from the trustee of The Heritage Organization bankruptcy.

7.

Attached hereto as Exhibit 7 is a true and correct copy of the Agreement of Limited Partnership of R,R,M & C Group, L.P. Dated as of August 23, 2001, which was provided to the United States with the Plaintiffs' Initial Disclosures.

8.

Attached hereto as Exhibit 8 is a true and correct copy of the Articles of Incorporation of R,R,M & C Management Corporation Dated as of August 23, 2001, which was provided to the United States with the Plaintiffs' Initial Disclosures.

9.

Attached hereto as Exhibit 9 is a true and correct copy of the Unanimous Written Consent of the Directors of R,R,M & C Management Corporation dated August 28, 2001, which was provided to the United States with the Plaintiffs' Initial Disclosures.

10.

Attached hereto as Exhibit 10 is a true and correct copy of the Articles of Organization of R,R,M & C Partners, L.L.C. dated August 23, 2001, which was provided to the United States with the Plaintiffs' Initial Disclosures.

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11.

Attached hereto as Exhibit 11 is a true and correct copy of Schedule D, 2001 Form 1065, U.S. Return of Partnership Income, for R,R,M & C Group, L.P., which came out of the Internal Revenue Service administrative files.

12.

Attached hereto as Exhibit 12 is a true and correct copy of a letter from James M. Love, MD dated June 1, 2007, which was provided to the United States by plaintiffs.

13.

Attached hereto as Exhibit 13 is a true and correct copy of the 2001 Form 1065, U.S. Return of Partnership Income, for R,R,M & C Partners, LLC, which was provided to the United States with the Plaintiffs' Initial Disclosures.

14.

Attached hereto as Exhibit 14 is a true and correct copy of selected excerpts from the appraisal of the R,R,M & C Group Limited Partnership September 21, 2001, which was provided to the United States with the Plaintiffs' Initial Disclosures.

15.

Attached hereto as Exhibit 15 is a true and correct copy of the Designation of Charity dated January 28, 2002, which was provided to the United States with the Plaintiffs' Initial Disclosures.

16.

Attached hereto as Exhibit 16 is a true and correct copy of the Irrevocable Designation of Charity dated February 22, 2002, which was provided to the United States with the Plaintiffs' Initial Disclosures.

17.

Attached hereto as Exhibit 17 is a true and correct copy of the Richard Sands Charitable Remainder Unitrust 2001, which was provided to the United States with the Plaintiffs' Initial Disclosures.

18.

Attached hereto as Exhibit 18 is a true and correct copy of selected excerpts from the oral deposition of Richard Sands taken on June 12, 2007.

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19.

Attached hereto as Exhibit 19 is a true and correct copy of selected excerpts from the oral deposition of Robert Sands taken on June 13, 2007.

20.

Attached hereto as Exhibit 20 is a true and correct copy of selected excerpts from the Constellation Brands, Inc. 2008 Annual Report, which came from the website of Constellation Brands, Inc.

21.

Attached hereto as Exhibit 21 is a true and correct copy of the Plaintiffs' Responses to the United States' First Set of Interrogatories.

22.

Attached hereto as Exhibit 22 is a true and correct copy of selected excerpts from the 2001 Form 1065, U.S. Return of Partnership Income, for CWC Partnership I, which was provided to the United States with the Plaintiffs' Initial Disclosures.

23.

Attached hereto as Exhibit 23 is a true and correct copy of a letter from George E. Goerig to Brian Czerwinski, dated February 26, 2002 regarding updated appraisal of the R,R,M & C Group Limited Partnership, which was provided to the United States with the Plaintiffs' Initial Disclosures.

24.

Attached hereto as Exhibit 24 is a true and correct copy of the Expert Witness Report of Jerry J. McCoy.

25.

Attached hereto as Exhibit 25 is a true and correct copy of the Appointment of Co-Trustees dated September 25, 2003, which came out of the Internal Revenue Service administrative files. The Internal Revenue Service received this document from the trustee of The Heritage Organization bankruptcy.

26.

Attached hereto as Exhibit 26 is a true and correct copy of the Transcript of Telephone Meeting with Potential Investor and Jonathan Blattmachr, December 5, 2000, which came

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out of the Internal Revenue Service administrative files. The Internal Revenue Service received this document from the trustee of The Heritage Organization bankruptcy. I declare that the penalties of perjury that the foregoing is true and correct. 27. Attached hereto as Exhibit 27 is a true and correct copy of a letter dated February 25, 2002 from George E. Goerig to Brian Czerwinski, which came out of the Internal Revenue Service administrative files. The Internal Revenue Service received this document from the trustee of The Heritage Organization bankruptcy. 28. Attached hereto as Exhibit 28 is a true and correct copy of the Merrill Lynch account statement for R, R, M & C Group, LP for the period February 1, 2002 through February 28, 2002, which came out of the Internal Revenue Service administrative files.

EXECUTED on July 2, 2008.

/s/ Thomas M. Herrin THOMAS M. HERRIN State Bar No. Texas 09533500 Attorneys, Tax Division Department of Justice 717 N. Harwood, Suite 400 Dallas, Texas 75201 (214) 880-9762/9745 (214) 880-9741/9742 (FAX) ATTORNEY FOR THE UNITED STATES

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