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

Case 1:05-cv-01105-TCW

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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 Order dated November 30, 2006, in the above-referenced matter, the parties submit the following information: The above-captioned matter is currently being held pending 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 v. United States, Fed Cl. No. 05525 T (2005). Below please find a brief summary of the status of Comcation and USA Choice. In Comcation, the Plaintiff and the United States completed discovery. The discovery accomplished included initial disclosures by the parties, including plaintiff's disclosures of information in support of its claim for refund (such as invoices, filings, etc.), and plaintiff's responses to defendant's interrogatories and requests for production of documents. A trial was held in this case on September 11, 2006. The parties' simultaneous opening post trial briefs were filed -1-

Case 1:05-cv-01105-TCW

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Filed 08/01/2007

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on November 13, 2006, and the parties' simultaneous reply briefs were filed on December 13, 2006. Closing arguments occurred on January 9, 2007, and the parties are waiting for a decision. In USA Choice v. United States, Judge Lettow awarded the Plaintiff judgment insofar as it paid communications excise taxes from January 1999 through April 2002 on incoming-only PRI channels purchased from ALLTEL and Verizon and its predecessors and on private-communication DCS and BRA channels obtained from ALLTEL plus the private lines associated with specific telephone numbers. Judge Lettow held that charges for these channels and services are not taxable as local telephone service, in the first instance because the services are not covered by the definition of such service in the Internal Revenue Code, and in the second instance because the services are exempted from the definition. Final judgment was entered for the Plaintiff in this case on December 15, 2006. An appeal of the decision was docketed at the United States Court of Appeals for the Federal Circuit on February 28, 2007. The docket number is 2007-5077. The government's brief was filed in this matter on June 13, 2007. The Plaintiff's brief is forthcoming. Accordingly, the parties request that the Court continue the stay of proceedings in this case. Respectfully submitted, August 1, 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

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Case 1:05-cv-01105-TCW

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Filed 08/01/2007

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August 1, 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 1, 2007 Date

s/Steven I. Frahm Of Counsel Attorneys for Defendant

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