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

Case 1:06-cv-00292-LJB

Document 8

Filed 06/12/2006

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS __________ No. 06-292 T (Judge Lynn J. Bush) BRENDA NESTOR, as Personal Representative of the ESTATE OF VICTOR POSNER, deceased, Plaintiffs v. THE UNITED STATES, Defendant __________ MOTION TO STAY PROCEEDINGS __________

Defendant, the United States, hereby respectfully moves the Court for an order to stay proceedings, pursuant to § 7422(e) of the Internal Revenue Code ("I.R.C." or "the Code"), through September 30, 2006. In support of this motion, the defendant states that the amended return filed on May 2, 2006, in this case requests a refund of estate tax. On May 3, 2006, the Internal Revenue Service issued Notices of Deficiency (copies of which are attached hereto as Exhibits A and B,

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Case 1:06-cv-00292-LJB

Document 8

Filed 06/12/2006

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respectively)1 to the Estate of Victor Posner ("the Estate") in respect of $121,636,311.00 in estate tax, and a total of $6,443,293.00 in gift taxes.2 Section 6213(a) of the Code provides: Within 90 days, or 150 days if the notice is addressed to a person outside the United States, after the notice of deficiency authorized in section 6212 is mailed (not counting Saturday, Sunday, or a legal holiday in the District of Columbia as the last day), the taxpayer may file a petition with the Tax Court for a redetermination of the deficiency. The 90-day deadline for the Estate to file a petition with the Tax Court with respect to the Notice of Deficiency involving the tax at issue in this suit is August 1, 2006.3 Pursuant to I.R.C. § 7422(e) (emphasis added): If the Secretary prior to the hearing of a suit brought by a taxpayer in . . . the United States Claims Court for the recovery of any income tax, estate tax, gift tax, . . . (or any penalty relating to such taxes) mails to the taxpayer a notice that a deficiency has been determined in respect of the tax which is the subject matter of taxpayer's suit, the proceedings in the taxpayer's suit shall 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. If the taxpayer files a petition with the Tax Court, the . . . United States Claims Court . . . shall lose jurisdiction of taxpayer's suit to whatever extent jurisdiction is acquired by the Tax Court of the subject matter of taxpayer's suit for refund. Accordingly, the proceedings in this case must be stayed through September 30, 2006 (i.e.. The 90-day period for filing suit in the Tax Court and for 60 days thereafter).
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The Notices of Deficiency are submitted without attachments. Section 6212(a) of the Internal Revenue Code provides, in pertinent part:

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If the Secretary determines that there is a deficiency in respect of any tax imposed by Subtitle A or B . . ., he is authorized to send notice of such deficiency to the taxpayer by certified mail or registered mail. The Tax Court has jurisdiction to redetermine the amount of the asserted deficiency, in whatever amount it finds to be correct, as well as any additions thereto. I.R.C. § 6214(a). Once the Tax Court's decision has become final, the entire amount of the redetermined deficiency may be assessed. I.R.C. § 6215(a). -23

Case 1:06-cv-00292-LJB

Document 8

Filed 06/12/2006

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WHEREFORE, defendant requests that its motion be granted. Respectfully submitted,

s/Jennifer Dover Spriggs JENNIFER DOVER SPRIGGS 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 (202) 307-0840

EILEEN J. O'CONNOR Assistant Attorney General DAVID GUSTAFSON Chief, Court of Federal Claims Section MARY M. ABATE Assistant Chief s/Mary M. Abate Of Counsel

June 12, 2006

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