Free Joint Status Report - District Court of Federal Claims - federal

Case 1:05-cv-01105-TCW

Document 20

Filed 08/23/2007

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS ______________ No. 05-1105 T (JUDGE WHEELER) EVENLINK, LLC Plaintiff v. THE UNITED STATES, Defendant ______________ JOINT STATUS REPORT ______________ Pursuant to the Court's Order dated November 30, 2006, in the above-referenced matter, the parties submit the following information: This case currently is suspended pending the outcome of litigation in the following three cases: XO Communications v. United States, Fed. Cl. No. 03-2754 T (2003); Comcation v. United States, Fed Cl. No. 05-515 T (2005), and USA Choice Internet Serv., LLC v. United States, 73 Fed Cl. 780 (2006), appeal pending, No. 07-5077 (Fed. Cir. Feb. 8, 2007). On August 17, 2007, a decision was rendered in Comcation in favor of the United States. (Copy submitted herewith.) The court held that the telephone service utilized by Comcation, an Internet service provider, to connect its customers to its network constituted taxable local service irrespective of whether the telephone service was configured as incoming-only service and the service did not qualify as a tax exempt private communication service. Accordingly, the holding in Comcation is contrary to the decision in USA Choice, which held that similar incoming-only

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Case 1:05-cv-01105-TCW

Document 20

Filed 08/23/2007

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telephone service was not taxable local telephone service. Therefore, until the United States Court of Appeals for the Federal Circuit resolves this conflict, the parties believe that continuing the suspension of proceedings in this case is warranted. Respectfully submitted, August 23, 2007 Date s/Anthony C. Gulotta ANTHONY C. GULOTTA PA Atty. ID #82081 Anderson & Gulotta, P.C. 1110 North Mountain Road Harrisburg, PA 17112 (717) 635-7145 Fax (717) 541-5434 [email protected] Attorney for Plaintiff

August 23, 2007 Date

s/G. Robson Stewart G. ROBSON STEWART 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) 307-6493 RICHARD T. MORRISON Acting Assistant Attorney General DAVID GUSTAFSON Chief, Court of Federal Claims Section STEVEN I. FRAHM Assistant Chief

August 23, 2007 Date

s/Steven I. Frahm Of Counsel Attorneys for Defendant

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