Free Motion to Consolidate Cases - District Court of Federal Claims - federal

Case 1:06-cv-00277-RHH

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THE HELEIN LAW GROUP, P.C.
8180 Greensboro Drive Suite 700 McLean, Virginia 22102 Telephone: (703) 714-1300 Facsimile: (703) 714-1330 E-mail: [email protected] Website: www.THLGlaw.com
Writer's Direct Dial Number 703-714-1301 Writer's E-mail Address [email protected]

April 11, 2006 VIA ELECTRONIC FILING Clerk's Office U.S. Court of Federal Claims 717 Madison Place, NW Room 103 Washington, DC 20005 RE: MOTION FOR CONSOLIDATION Locus Telecommunications, Inc., Plaintiff v. The United States of America, Defendant No. 05-1184 T Judge Robert H. Hodges, Jr. No. 06-277 T Judge Victor J. Wolski

Dear Clerk of the Court: On behalf of Locus Telecommunications, Inc., Plaintiff, The Helein law Group, P.C., hereby submits via electronic filing/PDF format, an original Motion for Consolidation. Should any questions arise, kindly contact the undersigned. Respectfully submitted s/Charles H. Helein Charles H. Helein

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS LOCUS TELECOMMUNICATIONS, INC. ) ) Plaintiff, ) ) v. ) ) THE UNITED STATES OF AMERICA ) ) Defendant. ) __________________________________________)

NO. 05-1184 T Judge Robert H. Hodges, Jr. NO. 06-277 T Judge Victor J. Wolski

MOTION FOR CONSOLIDATION Comes now Plaintiff, Locus Telecommunications, Inc. with the consent of Defendant, The United States of America and moves this Court for Consolidation of Case No. 05-1184 T, Locus Telecommunications, Inc. v. The United States of America with Case No. 06-277 T, Locus Telecommunications, Inc. v. The United States of America. In support of its Motion, Plaintiff states as follows: 1. On November 9, 2005, Plaintiff filed a Complaint against the United States of

America seeking a recovery of the federal excise tax ("FET") paid to Defendant with respect to each of the taxable calendar quarters beginning with the taxable calendar quarter ending March 31, 2001 and for each successive taxable calendar quarter to and including the taxable calendar quarter ending March 31, 2005. 2. This action was designated as Case no. 05-1184 T and assigned to Judge Robert

H. Hodges, Jr. (the "November 2005 Complaint"). 3. Defendant challenged certain claims made in the November 2005 Complaint on

the grounds that Plaintiff failed to wait the requisite six month period before filing its suit for a tax refund pursuant to 26 USCA § 6532 ("Section 6532").

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4.

Plaintiff contended that Section 6532 filing requirements were fulfilled when the

IRS effectively "rejected" Plaintiff's refund claims when it issued its Public Notice on October 26, 2005 (2005-46; 2005-79) ("2005 Public Notice"). This 2005 Public Notice provided, inter alia, that despite the government's recent losses in courts and questions regarding the applicability of the communications excise tax, the government was continuing to litigate the FET issue and was requiring all taxpayers to continue to pay the tax. 5. Notwithstanding its position, in order to avoid unnecessary litigation over whether

or not the claims at issue were denied by the IRS via the issuance of its 2005 Public Notice, on March 15, 2006, Plaintiff stipulated to the voluntary dismissal, without prejudice, of those claims within the November 2005 Complaint (Case No. 05-1184T) made for the taxable quarters ending in March 31, 2004- March 31, 2005 (the "2004-2005 Claims"). 6. With the six-month filing period of Section 6532 having expired, on April 4,

2006, Plaintiff filed a second Complaint seeking recovery from Defendant for the 2004-2005 Claims ("April 2006 Complaint"). 7. The April 2006 Complaint has been designated as Case No. 06-277 T and

assigned to Judge Victor J. Wolski. 8. The November 2005 Complaint and the April 2006 Complaint are appropriate for

consolidation pursuant to Rule 42(a). 9. Both cases share common questions of law and fact and it serves the interests of

the parties and this Court to Consolidate the November 2005 Complaint and April 2006 Complaint. Therefore, for the reasons stated above, Plaintiff, with the consent of Defendant, moves this Court to consolidate Case No. 05-1184 T and Case No. 06-277 T.

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Respectfully Submitted, The Helein Law Group, P.C. Attorneys for Plaintiff LOCUS TELECOMMUNICATIONS, INC.

By:

s/Charles H. Helein Charles H. Helein, Esq. The Helein Law Group, P.C. Washington, D.C. 8180 Greensboro Drive Suite 700 McLean, VA 22102

DATED: April 11, 2006

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CERTIFICATE OF SERVICE I hereby certify that a true copy of the foregoing MOTION FOR CONSOLIDATION has been made by first class mail, postage prepaid, this 11th day of April 2006 to: G. Robson Stewart, Esquire [email protected] U.S. Department of Justice Tax Division Court of Federal Claims Section Post Office Box 26 Ben Franklin Station Washington, D.C. 20044

s/Charles H. Helein Charles H. Helein

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