Free Motion for Leave to File Out of Time - District Court of Federal Claims - federal

Case 1:02-cv-00769-ECH

Document 43

Filed 12/12/2006

Page 1 of 3

IN THE UNITED STATES COURT OF FEDERAL CLAIMS

WESTAR ENERGY, INC., Plaintiff, v. THE UNITED STATES, Defendant.

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No. 02-769 T The Honorable Emily C. Hewitt

__________________ MOTION FOR LEAVE TO FILE JOINT STATUS REPORT OUT OF TIME __________________ Plaintiff, on behalf of itself and defendant1 in the above-captioned case, respectfully moves the Court for leave to file this Status Report out of time pursuant to Rule 7(b) of the Rules of the United States Court of Federal Claims ("RCFC"). As good cause therefore, the parties state that this Status Report was due to be filed on or before December 8, 2006, pursuant to the Status Report of October 10, 2006. However, counsel for plaintiff inadvertently improperly calendared this matter, with the result that the report was not timely filed. Pursuant to the Order of June 15, 2004, the parties respectfully provide this Status Report, setting out the proposal of the parties regarding further proceedings in this case. The parties have previously reported that by letter dated September 12, 2005, plaintiff submitted an offer in compromise, the acceptance of which would dispose of all issues presented by this case. Because of the nature of the case, and the amount in issue, authority to accept or
1

While this document has been prepared and executed only by plaintiff, it was reviewed and approved by defendant's counsel as a joint filing.

Case 1:02-cv-00769-ECH

Document 43

Filed 12/12/2006

Page 2 of 3

reject that offer rests with the Chief of the Tax Division's Office of Review, after her evaluation of the recommendations of the Office of Chief Counsel, Internal Revenue Service, and of defendant's trial attorney, and the Chief of the Court of Federal Claims Section of the Tax Division. We have previously reported receipt of the recommendation of the Chief Counsel, submission by defendant's trial attorney of his memorandum recommending acceptance of plaintiff's offer, and the endorsement of that recommendation by the Chief of the Court of Federal Claims Section. The settlement offer is currently being considered by the Office of Review. In our last report, we advised that the Office of Review expected to complete its review, including any necessary computations, within 60 days, or by about the time of the instant report. That expectation has not been fulfilled. The Tax Division's Recomputation Specialist, upon evaluating the task of performing computations, determined that additional documents were required, including updated transcripts of account. Receipt of those documents from the Internal Revenue Service has been delayed, and the computations have thus not been completed. The line attorney in the Office of Review responsible for this case has completed his memorandum, and submitted it to the Chief of the Office of Review. Final action on the pending offer will be taken after the computations have been completed and reviewed.

Case 1:02-cv-00769-ECH

Document 43

Filed 12/12/2006

Page 3 of 3

The parties will report again on or before February 12, 2007. Respectfully submitted, December 12, 2006 s/ Joseph M. Persinger JOSEPH M. PERSINGER Attorney of Record Milbank, Tweed, Hadley & McCloy LLP 1 Chase Manhattan Plaza New York, NY 10005 Tel: (212) 530-5072 Fax: (212) 822-5072 Email: [email protected] Attorney for Plaintiff

December 12, 2006

s/ W. C. Rapp W.C. RAPP Attorney of Record United States Department of Justice Tax Division Court of Federal Claims Section Post Office Box 26 Ben Franklin Post Office Washington, DC 20044 Voice: (202) 307-0503 Fax: (202) 514-9440 Email: [email protected] 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

December 12, 2006

s/ Steven I. Frahm Of Counsel

Attorneys for Defendant

NY2:#4720038v1 12/12/06 12:28 PM