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

Case 1:06-cv-00402-FMA

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS No. 06-402 T (Judge Francis M. Allegra)

ALAN SCOTT FITZ and PAULINE ANN FITZ, Plaintiffs, v. THE UNITED STATES, Defendant.

JOINT STATUS REPORT

Pursuant to the Court's Order [Doc. #7] dated July 27, 2006, the parties, through their attorneys, provide the following report in light of the recent opinion issued in Kenneth C. Keener v. United States, Fed. Cl. No. 03-2028 T and William P. Smith, Jr. and Anne D. Smith v. United States, Fed. Cl. No. 04-907 T. This case is an AMCOR case related to Keener and Smith. Plaintiffs' complaint alleges five types of claims: 1) period of limitation; 2) tax motivated interest; 3) interest abatement; 4) basis restoration/termination; and 5) § 447/481 income recapture. On April 18, 2007, this Court issued an opinion in Keener and Smith, granting defendant's partial motion to dismiss for lack of jurisdiction taxpayers' period of limitations and tax motivated interest claims. Under the decision, the Court lacks subject matter jurisdiction over the period of limitations and tax motivated interest claims in this case. Plaintiffs' attorneys intend to move for reconsideration and appeal the decision to the Federal Circuit. Accordingly,

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Case 1:06-cv-00402-FMA

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the parties propose that the Court wait until final appellate action, before dismissing the period of limitation and tax motivated interest claims in this case. Under the Federal Circuit's decision in Hinck v. United States, 446 F.3d 1307 (Fed. Cir. 2006), the Court lacks subject matter jurisdiction over the interest abatement claims in this case. However, because the Federal Circuit's decision in Hinck is currently under review by the Supreme Court, the parties propose the Court wait until final appellate action, before dismissing the interest abatement claims in this case. With respect to the remaining claims, basis restoration/termination and § 447/481 income recapture, plaintiffs' counsel intends to voluntarily dismiss them. In sum, the parties propose that the suspension of this case continue until final appellate action on plaintiffs' period of limitation, tax motivated interest, and interest abatement claims. Respectfully submitted,

5/2/2007 Date

s/Thomas E. Redding by s/Bart D. Jeffress THOMAS E. REDDING Redding & Associates, P.C. 2914 W.T.C. Jester Houston, Texas 77018 (713) 965-9244 (713) 621-5227 (fax) Attorney for Plaintiffs

5/2/2007 Date

s/Bart D. Jeffress BART D. JEFFRESS 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 -2-

Case 1:06-cv-00402-FMA

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(202) 307-6496 (202) 514-9440 (fax) EILEEN J. O'CONNOR Assistant Attorney General DAVID GUSTAFSON Chief, Court of Federal Claims Section STEVEN I. FRAHM Assistant Chief, Court of Federal Claims Section

5/2/2007 Date

s/Steven I. Frahm Of Counsel Attorneys for Defendant

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