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

Case 1:06-cv-00292-LJB

Document 9

Filed 06/28/2006

Page 1 of 2

IN THE UNITED STATES COURT OF FEDERAL CLAIMS Brenda Nestor, as Personal Representative of the ) ) Estate of Victor Posner, deceased, ) ) PLAINTIFF, ) ) vs. ) ) The United States, ) ) DEFENDANT

CASE NO. 06-292T Judge Lynn J. Bush

RESPONSE TO DEFENDANT'S MOTION TO STAY PROCEEDINGS Brenda Nestor, as Personal Representative of the Estate of Victor Posner, deceased (the "Estate"), hereby responds to the Motion to Stay Proceedings (the "Motion") brought by Defendant The United States (the "Defendant") as follows: 1. The Estate acknowledges that on May 3, 2006, the Internal Revenue

Service issued Notices of Deficiency to the Estate in respect of estate tax and gift taxes (the "Notice"). 2. Section 6213(a) of the Internal Revenue Code of 1986, as amended (the

"Code"), provides that a taxpayer may petition the Tax Court for a redetermination of the deficiency within 90 days after the mailing of the Notice. 3. Code § 7422(e) requires that this suit be stayed "during the period of time

in which the taxpayer may file a petition with the Tax Court for a redetermination of the asserted deficiency, and for 60 days thereafter." 4. As stated in the Motion, therefore, the Estate has until August 1, 2006, to

file a petition with the Tax Court with respect to the Notice, and the proceedings before this Court must be stayed under Code § 7422(e) until September 30, 2006.

Case 1:06-cv-00292-LJB

Document 9

Filed 06/28/2006

Page 2 of 2

5.

Pursuant to Code § 7422(e), "[i]f the taxpayer files a petition with the Tax

Court, the . . . United States Claims Court . . . shall lose jurisdic tion of taxpayer's suit to whatever extent jurisdiction is acquired by the Tax Court of the subject matter of taxpayer's suit for refund." 6. As discussed with counsel for the Defendant, in the event the Estate does

file a petition with the Tax Court and the Defendant subsequently moves to dismiss this suit for lack of jurisdiction, the Estate expressly reserves any and all arguments it may have with respect to such a motion to dismiss, including any jurisdictional arguments under Code § 7422(e).

WHEREFORE, subject to the reservations described above, Plaintiff, as Personal Representative of the Estate, does not object to this Court granting Defendant's Motion to Stay Proceedings until September 30, 2006. Respectfully submitted,

June 28, 2006_____________ DATE

s/Natalie Hoyer Keller_________________ Natalie Hoyer Keller (IL Bar #6243228) KIRKLAND & ELLIS LLP 200 E. Randolph Drive Chicago, Illinois 60601 (312) 861-2229 (Voice) (312) 861-2200 (Facsimile) Thomas L. Evans (IL Bar #6188781) KIRKLAND & ELLIS LLP 655 Fifteenth Street, N.W. Washington, D.C. 20005 (202) 879-5272 (Voice) (202) 879-5200 (Facsimile) Attorneys for Plaintiff Brenda Nestor, as Personal Representative of the Estate of Victor Posner, deceased 2