Free Motion to Amend Pleadings - Rule 15 - District Court of Federal Claims - federal

Case 1:06-cv-00217-LSM

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Filed 07/06/2006

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No. 06-217 T Judge Lawrence S. Margolis ______________________________________________________________________________ ______________________________________________________________________________ IN THE UNITED STATES COURT OF FEDERAL CLAIMS

CATERPILLAR, INC., Plaintiff, v. THE UNITED STATES, Defendant. __________________ FIRST AMENDED ANSWER __________________ The United States, having received written consent from plaintiff to file an amended answer to the complaint to reflect a change in its litigation position, files this First Amended Answer. The United States denies each allegation of the complaint that is not admitted or otherwise expressly addressed below. The United States further: 1. Admits that this action is brought under Sections 6532 and 7422 of the Internal Revenue Code seeking to recover federal excise taxes and statutory interest, but states that its attorneys currently lack knowledge or information sufficient to form a belief as to the truth of the allegation that the taxes were paid to the United States with respect to the quarters ended September 30, 2001 through December 31, 2004. 2. States that its attorneys currently lack knowledge or information sufficient to form a belief as to the truth of the allegations contained in paragraph 2.

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Case 1:06-cv-00217-LSM

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3.

Admits that plaintiff's Employer Identification Number is 37-0602744, which is reflected on the claims for refund attached to the complaint, and states that its attorneys currently lack knowledge or information sufficient to form a belief as to the truth of the remaining allegations contained in paragraph 3.

4. 5.

Admits the allegation contained in paragraph 4. States that its attorneys currently lack knowledge or information sufficient to form a belief as to the truth of the allegation contained in paragraph 5.

6.

Avers that jurisdiction, to the extent it exists in this case, is conferred by 28 U.S.C. § 1491.

7. 8.

Avers that "venue" is conferred by 28 U.S.C. § 1491. Admits that plaintiff seeks to recover federal excise taxes and interest, but states that its attorneys currently lack knowledge or information sufficient to form a belief that plaintiff overpaid its taxes.

9.

States that its attorneys currently lack knowledge or information sufficient to form a belief as to the truth of the allegations contained in paragraph 9.

10.

States that its attorneys currently lack knowledge or information sufficient to form a belief as to the truth of the allegations contained in paragraph 10.

11.

States that its attorneys currently lack knowledge or information sufficient to form a belief as to the truth of the allegations contained in paragraph 11.

12.

States that its attorneys currently lack knowledge or information sufficient to form a belief as to the truth of the allegations contained in the first sentence of paragraph 12. Admits that, on February 3, 2005, the Internal Revenue Service received claims for

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Case 1:06-cv-00217-LSM

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refund filed by plaintiff for the quarters ended June 30, 2003 through December 31, 2004. States that its attorneys currently lack knowledge or information sufficient to form a belief as to the truth of the remaining allegations contained in paragraph 12, but admits that the excise tax under 26 U.S.C. § 4251 does not apply to plaintiff's long distance telephone service to the extent such services are nontaxable under Notice 2006-50, which was issued by the Department of Treasury and the Internal Revenue Service on May 25, 2006. 13. Admits that more than six months have passed since plaintiff filed its claims for refund for the quarters ended June 30, 2003 through December 31, 2004. States that its attorneys currently lack knowledge or information sufficient to form a belief as to the truth of the remaining allegations contained in paragraph 13. 14. 15. 16. Paragraph 14 expresses legal conclusions to which no response is necessary. Paragraph 15 expresses a legal conclusion to which no response is necessary. Paragraph 16 expresses legal conclusions to which no response is necessary. To the extent it also is making factual allegations, states that its attorneys currently lack knowledge or information sufficient to form a belief as to the truth of those allegations. 17. 18. 19. Paragraph 17 expresses a legal conclusion to which no response is necessary. Paragraph 18 expresses a legal conclusion to which no response is necessary. States that its attorneys currently lack knowledge or information sufficient to form a belief as to the truth of the allegations contained in paragraph 19.

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20.

Paragraph 20 expresses a legal conclusion to which no response is necessary. To the extent it also is making a factual allegation, states that its attorneys currently lack knowledge or information sufficient to form a belief as to the truth of that allegation.

21. 22.

Paragraph 21 expresses a legal conclusion to which no response is necessary. States that its attorneys currently lack knowledge or information sufficient to form a belief as to the truth of the allegations contained in paragraph 22.

23.

Paragraph 23 expresses a legal conclusion to which no response is necessary. To the extent it also is making a factual allegation, states that its attorneys currently lack knowledge or information sufficient to form a belief as to the truth of that allegation.

24.

States that its attorneys currently lack knowledge or information sufficient to form a belief that plaintiff overpaid its taxes or that defendant has not refunded any amounts plaintiff has claimed.

25.

States that its attorneys currently lack knowledge or information sufficient to form a belief as to the truth of the allegations contained in paragraph 25.

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Case 1:06-cv-00217-LSM

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Filed 07/06/2006

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WHEREFORE, the United States prays that the Court allow the parties sufficient time to determine the amount, if any, of overpayment of telephone excise taxes due to plaintiff. Respectfully submitted, s/Jacob Christensen JACOB E. CHRISTENSEN 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 Voice: (202) 307-0878 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 July 6, 2006 s/Steven Frahm Of Counsel

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