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

Case 1:05-cv-01189-CFL

Document 28

Filed 12/15/2006

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS ____________ No. 05-1189 T (Judge Charles F. Lettow)

THOMAS H. McGANN and EVELYN G. McGANN, Plaintiffs, v. THE UNITED STATES, Defendant. ______________ MOTION FOR LEAVE TO FILE RESPONSE TO SUR REPLY

Defendant hereby moves the Court, for leave to file the attached Response to Plaintiffs' Sur Reply. In support of this motion, defendant submits the following: 1. On August 17, 2006, defendant filed a 16-page brief in support of its motion to

dismiss plaintiffs' complaint. The motion and brief maintained that the Court lacks jurisdiction to consider plaintiffs' challenge to the imposition of tax motivated interest, because plaintiffs did not file a claim for refund with the IRS in a timely manner. 2. On October 10, 2006, plaintiffs filed a 38-page response, raising numerous legal

and factual arguments. 3. In an effort to respond fully to plaintiffs' contentions, and with leave of Court,

defendant filed a 32-page Reply Brief. 4. On December 1, 2006, plaintiffs submitted an 18-page Sur-Reply under cover of a

motion for leave to file. The Court granted plaintiffs' motion for leave on December 5, 2006, -1-

Case 1:05-cv-01189-CFL

Document 28

Filed 12/15/2006

Page 2 of 2

and plaintiffs filed their Sur-Reply on December 13, 2006. Plaintiffs' Sur Reply raises new factual and legal arguments, responds to our res judicata argument, and distorts certain of our earlier arguments. 5. The attached response to plaintiffs' Sur-Reply is necessary so that the Court has

both parties' views before it regarding plaintiffs' claims. 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 December 15, 2006

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