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

Case 1:05-cv-01189-CFL

Document 23

Filed 11/02/2006

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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 REPLY BRIEF _____ Defendant hereby moves the Court, pursuant to RCFC 5.2(b)(2), for leave to file the attached 32-page Reply Brief in support of its motion to dismiss plaintiffs' complaint. 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 questioned whether the Court lacks jurisdiction to consider plaintiffs' challenge to the imposition of tax motivated interest because they 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, including the merits of their claim under Fifth Circuit case law. 3. Rule 5.2(b)(2) imposes a 20-page limit on reply briefs, "[e]xcept by leave of the

court on motion." In order to respond in a thorough manner to the factual and legal assertions raised by plaintiffs' response, defendant has endeavored to provide the Court with complete -11

Case 1:05-cv-01189-CFL

Document 23

Filed 11/02/2006

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discussion on various issues, including whether § 6511(a) applies to plaintiffs' refund claim for tax motivated interest, whether imposition of tax motivated interest is a computational adjustment, and whether the IRS' mailings relevant to this case were sufficient to commence the six-month period of § 6230(c)(2)(A). In defendant's view, a truncated discussion of any of these issues would not be helpful to the Court. In addition, because plaintiffs' response injected the merits of their claim under Fifth Circuit case law into this round of briefing, defendant has included a short reply to those arguments. Accordingly, defendant seeks leave to file a reply brief of 32 pages. 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/David Gustafson Of Counsel November 2, 2006

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