Free Motion to Compel - District Court of Federal Claims - federal

Case 1:06-cv-00305-MBH

Document 21-2

Filed 04/03/2007

Page 1 of 5

No. 06-305 T (Judge Marian Blank Horn)

IN THE UNITED STATES COURT OF FEDERAL CLAIMS

CONSOLIDATED EDISON COMPANY OF NEW YORK, INC. & SUBSIDIARIES Plaintiff v. THE UNITED STATES, Defendant

DECLARATION OF DAVID N. GEIER

I, David N. Geier, pursuant to 28 U.S.C. § 1746, declare and state to the best of my knowledge as follows: 1. I am employed as a trial attorney with the United States Department of Justice, Tax Division in Washington, D.C. I am assigned responsibility for representing the interests of the United States in the above-captioned case. I am familiar with the documents produced by the Internal Revenue Service from its administrative files pertinent to the above captioned case, and the portions produced to Plaintiff by the United States in discovery. I am also responsible for and familiar with the documents produced by Plaintiff during discovery in the above captioned matter. I make this declaration in support of the United States' First and Second Motions to Compel.

Case 1:06-cv-00305-MBH

Document 21-2

Filed 04/03/2007

Page 2 of 5

Discovery Responses 2. Attached hereto as Exhibit A-1 is a true and correct copy of the initial Privilege

Log Produced by Plaintiff in response to discovery requests by the Government. 3. Attached hereto as Exhibit A-2 is a true and correct copy of the Privilege Log

produced by Plaintiff on or about December 13, 2006. 4. Attached hereto as Exhibit A-3 is a true and correct copy of the Plaintiff's

Response to the United States' Interrogatories, produced by Plaintiff on or about November 2, 2006. 5. Attached hereto as Exhibit A-4 is a true and correct copy of the Plaintiff's

Response to the United States' Request for Production of Documents, produced by Plaintiff on or about November 2, 2006. Correspondence 6. Attached hereto as Exhibit B-1 is a true and correct copy of a letter dated

November 16, 2006, addressed to Thomas Durham, counsel for Plaintiff. 7. Attached hereto as Exhibit B-2 is a true and correct copy of a letter dated

December 1, 2006, addressed to David Geier, counsel for the Government. 8. Attached hereto as Exhibit B-3 is a true and correct copy of a letter dated

December 12, 2006, addressed to Thomas Durham, counsel for Plaintiff. 9. Attached hereto as Exhibit B-4 is a true and correct copy of a letter dated

December 14, 2006, addressed to David Geier, counsel for the Government. 10. Attached hereto as Exhibit B-5 is a true and correct copy of a letter dated

December 19, 2006, addressed to Plaintiff's counsel.

-2-

Case 1:06-cv-00305-MBH

Document 21-2

Filed 04/03/2007

Page 3 of 5

11.

Attached hereto as Exhibit B-6 is a true and correct copy of a letter dated

December 20, 2006, addressed to Plaintiff's counsel. 12. Attached hereto as Exhibit B-7 is a true and correct copy of a letter dated

December 21, 2006, addressed to Joseph Sergi, counsel for the Government. Documents Produced in Discovery 13. Attached hereto as Exhibit C-1 is a true and correct copy of an internal Con

Edison memorandum dated November 20, 1997, produced to the IRS during the audit stage of the matter currently before this Court. 14. Attached hereto as Exhibit C-2 is a true and correct copy of an internal Con

Edison memorandum dated November 21, 1997, produced to the IRS during the audit stage of the matter currently before this Court, and included within the portions of the IRS administrative file produced to Plaintiff during discovery. 15. Attached hereto as Exhibit C-3 is a true and correct copy of the relevant excerpts

from Volume 1 of the "EZH Briefing Memo", entitled "Risk Analysis", produced to the IRS during the audit stage of the matter currently before this Court, and included within the portions of the IRS administrative file produced to Plaintiff during discovery. 16. Attached hereto as Exhibit C-4 is a true and correct copy of a document titled

"Leasing White Paper," produced in the course of discovery, containing all redactions requested by Plaintiff. 17. Attached hereto as Exhibit C-5 is a true and correct copy of an email dated

February 9, 1998, attaching a document titled ENECO White Paper 4, produced in the course of discovery, containing all redactions requested by Plaintiff.

-3-

Case 1:06-cv-00305-MBH

Document 21-2

Filed 04/03/2007

Page 4 of 5

18.

Attached hereto as Exhibit C-6 is a true and correct copy of an internal Con

Edison email dated December 12, 1997, produced to the IRS during the audit stage of the matter currently before this Court, and included within the portions of the IRS administrative file produced to Plaintiff during discovery. 19. Attached hereto as Exhibit C-7 is a true and correct copy of a document titled

"Leasing White Paper (ENECO 4)," produced in the course of discovery, containing all redactions requested by Plaintiff. 20. Attached hereto as Exhibit C-8 is a true and correct copy of an internal Con

Edison email string dated December 12, 1997, produced in the course of discovery, containing all redactions requested by Plaintiff. 21. Attached hereto as Exhibit C-9 is a true and correct copy of a letter titled "EZH

RoCa 3 Facility Lease," marked "DRAFT" produced in the course of discovery. 22. Attached hereto as Exhibit C-10 is a true and correct copy of a Shearman &

Sterling internal memoranda dated December 4, 1997, titled "EZH RoCa 3Tax Characterization of German Lease", produced in the course of discovery. 23. Attached hereto as Exhibit C-11 is a true and correct copy of a fax cover sheet

dated December 10, 1997, addressed to James Dewey at Pricewaterhouse, attaching a draft legal opinion, produced in the course of discovery. 24. Attached hereto as Exhibit C-12 is a true and correct copy of a draft memorandum

from Pricewaterhouse titled "Consolidated Edison Development Leveraged Lease", produced in the course of discovery.

-4-

Case 1:06-cv-00305-MBH

Document 21-2

Filed 04/03/2007

Page 5 of 5

25.

Attached hereto as Exhibit C-13 is a true and correct copy of the relevant excerpt

from a document discussing various aspects of the LILO Transaction and communications between the IRS and Plaintiff during the audit phase of the instant transaction, and included within the portions of the IRS administrative file produced to Plaintiff during discovery. 26. Attached hereto as Exhibit C-14 is a true and correct copy of the relevant pages

from a spreadsheet discussing various projects under consideration by Con Edison Development, Inc., produced in the course of discovery. 27. Attached hereto as Exhibit C-15 is a true and correct copy of the response of

Plaintiff, dated April 9, 2002, to an Information Document Request made by the IRS, and included within the portions of the IRS administrative file produced to Plaintiff during discovery. 28. Attached hereto as Exhibit C-16 is a true and accurate copy of a document

entitled "Leasing Overview 11-7-97", produced in the course of discovery. Cases 29. Attached hereto as Exhibit D-1 is a true and accurate copy of the Opinion issued

by the Court of Federal Claims on March 6, 2001 in Precision Pine & Timber, Inc. v. United States, No. 98-720 C. I declare under the penalty of perjury that the foregoing is true and correct. Executed this 3rd day of April, 2007 in Washington D.C. s/ David N. Geier DAVID N. GEIER Trial Attorney, Tax Division U.S. Department of Justice

-5-