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

Case 1:05-cv-01189-CFL

Document 36-2

Filed 04/24/2007

Page 1 of 2

IN THE UNITED STATES COURT OF FEDERAL CLAIMS No. 01-1189 T Judge Charles F. Lettow

THOMAS H. McGANN and EVELYN G. McGANN, Plaintiffs, v. THE UNITED STATES, Defendant.

NOTICE OF RECENT AUTHORITY

Currently pending before the Court is defendant's motion to dismiss [Doc. #12]. Related briefs are plaintiff's response [Doc. #20], defendant's reply [Doc. #26], plaintiffs' sur-reply [Doc. #27], defendant's response to sur-reply [Doc. #33], and plaintiffs' reply to response to surreply [see Docs. ## 31, 34]. Oral argument was held on January 29, 2007. There are two questions: (1) Whether plaintiffs filed their administrative refund claim for tax motivated interest outside the period of limitation prescribed in 26 U.S.C. § 6230(c)(2)(A); and (2) Whether plaintiffs' tax motivated interest claim is barred by 26 U.S.C. § 7422(h) (or § 6230(c)(4)) or under the doctrine of res judicata. On April 18, 2007, Judge Allegra issued an opinion in two AMCOR cases (Keener, Fed. Cl. 03-2028 T and Smith, Fed. Cl. 04-907 T). Among other things, the opinion ruled that taxpayer's tax motivated interest claims were barred by 26 U.S.C. § 7422(h), because the

-1-

Case 1:05-cv-01189-CFL

Document 36-2

Filed 04/24/2007

Page 2 of 2

predicate partnership item component of the claims either had not been first resolved at the partnership level or, if it had, had been determined adversely to the taxpayers. If the Court agrees with that ruling, question (2) should be answered in the affirmative and defendant's motion granted. A copy of the Keener opinion is attached. Respectfully submitted, s/Bart D. Jeffress BART D. JEFFRESS 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) 307-6496 (202) 514-9440 (fax) 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 s/Steven I. Frahm Of Counsel April 24, 2007

-2-