Free Motion to Compel - District Court of Federal Claims - federal

Case 1:05-cv-01022-ECH

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Filed 07/10/2006

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EXHIBIT A

Case 1:05-cv-01022-ECH

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Filed 07/10/2006

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS

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THE HARVER COMPANY, an Oregon
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Corporation,

No. 05-1022 T

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Plaintiff,
v.
THE UNITED STATES,

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Defendant.
PLAINTIFF'S RESPONSE TO DEFENDAN'S INTERROGATORIES-SET NO. 2
Plaintiff responds to Defendant's Interrogatories-Set

No. 2 as follows:
INTERROGATORY NUBER 1. Describe in detail the

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14 frequency with which Plaintiff gave certificates to its employees
15 during taxable years 1997, 1998, and 1999.
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Identify the

documents that reflect information about this matter.
RESPONSE:

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It was the practice of THE HARVER COMPANY to

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purchase gift certificates in bulk and then from time to time to

20 give those awards once certain safety criteria had been met.
21 They were almost all for not having art industrial accident for a
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particular period of time. Generally, that would be no
industrial accidents on a particular job or series of jobs

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25 constituting two or three months. None of the gift certificates
Page

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LEGAL REPRESENTATION, LLC
STEVEN M. CYR, MANAGING MEMBER
485 S. w. Scholls Ferry Rd. Suite 305

Port land, Oraton 97225

Case 1:05-cv-01022-ECH

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went to any owner, shareholder or officer of the company or any

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internal staff.
safety awards.

The gift certificates were strictly for meeting There are no documents that exist anYmore to

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5 identify further information about this matter.
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INTERROGATORY NUBER 2. For each year, including
taxa~le years 1997, 1998, and 1999, state the percentage of

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Plaintiff's employees who received certificates in the form of
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employee achievement awards. Identify the documents that reflect

11 information about this matter.
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RESPONSE: See Response to Interrogatory Number i.

The

achievement awards were for meeting safety criteria and the same

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certificates mentioned in number i are the ones being referred to
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16 in Interrogatory Number 2 as employee achievement awards. There
17 are no documents that exist to document the number of gift
18 certificates or the percentage of employees who received them.
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It would generally be true that all employees who shared the
safety record on a particular job would receive a certificate.

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22 While it is difficult to estimate, it is believed that

23 approximately one-third (1/3) of the employees received at least
24 one certificate or award during the year.
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LEGAL REPRESENTATION, LLC
STEVEN M. CYR. MANAGING MEMBER
485 S.W. Scholls Ferry Rd. Suite 305

Portland, Oregon 97225

Case 1:05-cv-01022-ECH

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INTERROGATORY NUBER 3. For each year, including
taxable years 1997, 1998, and 1999, state whether any employee

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received an employee achievement award, the cost of which, when
added to the cost to Plaintiff of all other employee achievement

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awards made to such employee during such taxable year, exceeded

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$400.

Identify the documents that reflect information about this

matter.
RESPONSE: No single employee received any employment

11 achievement awards exceeding $400 in anyone tax year. These
12 were $25 safety awards and it would not have been possible for
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one person to receive more than eight (8) or so safety awards for

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safety in any calendar year. Therefore, the maximum that any
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16 employee could have received would have been $200 and it is
17 believed; although no documents exist any longer to prove this,

18 that no then employee received more than four (4) gift
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certificates in anyone year.

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INTERROGATORY NUBER 4. State whether Plaintiff
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followed an established written plan or program for rewarding its

23 employees with safety achievement awards during the periods at
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LEGAL REPRESENT A TION, LLC
STEVEN M. CYR. MANAGING MEMBER
4850 s.w. Scholls Ferry Rd. Suite 30
portland)Or~on 97225

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issue.

Identify all documents that make up any part of such

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written plan.
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RESPONSE:

Plaintiff did not have a written plan for

rewarding its employees with safety achievement awards.

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Plaintiff did, however, give the awards for each long job at its

completion and in any event for employees working during any two
month period, where no industrial accident occurred.

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INTERROGATORY NUBER 5.

Identify each person who

11 received payment (s) during the periods in issue, which payment (s)

12 Plaintiff contends should be excluded from wages as part of an
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accountable plan that satisfies the requirements or I. R. C.
Section 62 (c) and its accompanying regulations.

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Identify the

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documents that reflect information about this matter.

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RESPONSE: The persons who received payments as a part

18 of travel per diem expenses are not in the hands of the
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Plaintiff.
government.

They are in the hands of J. D. BIGELOW of IKON

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DOCUMENT EFFICIENCY who is copying said documents for the
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The time cards identify each employee and each job.

23 The jobs in question to which each qualified employee would not
24 be included in the wages is, in fact, identified by job location.
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LEGAL REPRESENTATION, LLC
STEVEN M. CYR. MANAGING MEMBER
4850S.W. Scholls Ferry Rd. Suite 30
Port land, Oregon 97225

Case 1:05-cv-01022-ECH

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The

folders that

identified the

jobs that were outside of the

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greater Portland area

and were subj ect to the per diem
BIGELOW

contract
for

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payments by the Union are in the hands of J.D.

5 copying for the government.

6 This is a collective bargaining plan which satisfies
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the requirements of IRC Section 62 (c) in that it was negotiated

at arms length between the Union and the employer's group, for
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not just this employer, but for all employees who had Union

11 contracts with the Union.
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The government has already been provided with copies of
the contracts that reflect the plan.

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INTERROGATORY NUBER 6.
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For each person identified in

Interrogatory No.5, state the person's full residential address

17 at the time the payment (s) (referred to in Interrogatory No.5)
18 was received by such person.
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Identify the documents th~t reflect

information about this matter.

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RESPONSE: To the extent that the documents are still
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in existence, the names of the employees and other information as

23 contained on the time cards and the work folders already produced
24 to the government's copier. The Plaintiff obj ects to the request
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LEGAL REPRESENTATION, LLC
STEVEN M. CYR. MANAGING MEMBER
485 S.W. Scholls Ferry Rd.

Suite 30 Port land, Oregon 97225

Case 1:05-cv-01022-ECH

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for residential addresses since the residential address would be irrelevant to the Union hall of which the individual was a

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membe r .

Therefore, the residential address would not determine

whether or not they were away from home as defined in the Union
Contract, but rather the affiliation with a particular Union contract would determine whether or not the individu~l qualified
for per diem.

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Notwi thstanding the obj ection contained above, the

Plaintiff has provided time cards which is all of the information

11 that still exists surrounding those individuals for the time
12 period in question.
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INTERROGATORY NUBER 7.

For each person identified in

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No.5, provide the full address of each job site to which such
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16 person was dispatched that gave rise to the payment (s) (referred

17 to in Interrogatory No.5) received by that person.
18 documents that reflect information about this matter.
19

Identify the

RESPONSE.

The job sites have been identified by the

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work folders currently in possession of the government's copier.
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22 The individuals who were at the job sites are identified on the

23 time cards and further reconciled to the work folders for each
24 out of area job.
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Page

All of the documents that exist with regard to

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LEGAL REPRESENTATION, LLC
STEVEN M. CYR. MANAGING MEMBER
4850S.W. Scholls Ferry Rd. Suite 305 Portland. Oregon 97225

Case 1:05-cv-01022-ECH

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this have already been produced to the government's agent, MR.
BIGELOW, as mentioned above.

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INTERROGATORY NUBER 8.

For each period in issue,

5 state the total amount Plaintiff paid as "subsistence) (as
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referred to in the Union contracts) to employees who were hired

under Union contracts.

Identify the documents that reflect

information about this matter.
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RESPONSE: The total amounts paid by Plaintiff are the

11 adjustments as made by the IRS auditor. A copy of the audit
12 report is enclosed and reflects the amount of adjustment made by
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the auditor to withholding based upon the payments at issue. The
auditor's report and the time cards previously mentioned are the

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16 only documents that still exist for these time periods.

It is

17 the contention of the Plaintiff that the amounts are not in
18 dispute.
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The auditor made an adj ustment . The adj ustment made by

the audi tor was paid.

The discussion is purely a legal issue as

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to whether or not the amounts properly adjusted by the auditor
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22 were subj ect to withholding or were not subj ect to withholding.

23 There is no dispute that the amounts have been paid nor is there

24 any dispute that the government believed that those amounts to be
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LEGAL REPRESENTATION, LLC
STEVEN M. CYR, MANAGING MEMBER
48S0S.W. Scholls Ferry Rd. Suile 305 Portland, Oregon 97225

Case 1:05-cv-01022-ECH

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proper, nor is there any dispute that the taxpayer believes the
amounts were not subj ect to withholding.

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INTERROGATORY NUBER 9. Describe in detail the manner

5 and method by which the amount, time, place, and business purpose
6 of the expenses covered by the payment (s) (referred to in
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Interrogatory No.5) were substantiated to Plaintiff by the
persons identified in Interrogatory No.5.
Identify any record

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or other document prepared for such purpose, and identify the

11 documents that reflect information about this matter.
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RESPONSE: This is the same answer because the time

cards,

job records, and auditor's report have al 1 been produced

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to the government or their agent.
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INTERROGATORY NUBER 10. State whether employees who

17 received payment (s) (referred to in Interrogatory No.5) were
18 required to return to Plaintiff any excess of such payment (s)
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over actual expenses.

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RESPONSE: Under the Union contract the employee was
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22 not required to provide receipts and, therefore, there could not

23 have been, and would not have been, any excess of payments over
24 actual expenses.
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LEGAL REPRESENTATION, LLC
STEVEN M. CYR. MANAGING MEMBER
4850 S. w. Scholls Ferry Rd. Suite 30 Portland, Oregon 97225

Case 1:05-cv-01022-ECH

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INTERROGATORY NUBER 11.

I f you respond with anything

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but an unequivocal admission to any request contained in
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Defendant's Requests for Admissions-Set No.1:
(a)
admi t ;
Quote the phrase, word, or words that you do not

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(b)

State in detail each fact that (in your view)

supports your refusal to admit the clause, phrase, word, or
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words listed in response to Interrogatory 11 (a), identifying
all persons who have knowledge of each such fact and identifying all documents that support each such fact; and

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(c) If you do not agree with the Defendant's statement

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of the subj ect of the requested admission, fully state your
view of the facts, and separately set forth the evidence
upon which you rely to support your point of view.
RESPONSE:

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Plaintiff obj ects in that the request ls
This is a redundant discovery request

overly broad and has already been responded to in the request for
admissions set number 1.

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LEGAL REPRESENT A TION, LLC
STEVEN M. CYR. MANAGING MEMBER
480 S. w. Scholls Ferry Rd. Suite 305

Portland, Oregon 97225

Case 1:05-cv-01022-ECH

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and the response to request for admissions set number 1 are the

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responses.
DATED this 30th day of June, 2006.

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STEVEN M. CYR, C~ 8000-44229R
At torney for THE HARVER COMPANY 4850 S.W. Scholls Ferry Road Suite 305 Portland, Oregon 97225

j¿ ølf1

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11 harvercourt TNT. res2 . wpd

Telephone: 503 - 297 -73 3 0
Facsimile: 503-297-7393

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LEGAL REPRESENT A TION, LLC
STEVEN M. CYR. MANAGING MEMBER
485S.W. Scholls Ferry Rd. Suite 305 Port land. Oregon 97225

Case 1:05-cv-01022-ECH

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CERTIFICATE OF SERVICE

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I certify that service of the foregoing document
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entitled "PLAINTIFF'S RESPONSE TO DEFENDANT'S INTERROGATORIES-SET

NO.2" has been made on Defendant this 30th day of June, 2006, by
sending a true copy thereof, via FEDERAL EXPRESS, to the

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following address:
JACOB E. CHRISTENSEN U. S. DEPARTMENT OF JUSTICE COURT OF FEDERAL CLAIMS SECTION
555 4il Street N. W.

Washington, D. C. 20001

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STEVEN M. CYR, 0 No. 79205
LEGAL REPRESENTATION, LLC

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4850 S. W. Scholls Ferry Road
Suite 305 Portland, Oregon 97225

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503-297-7330
C: \Documents and Settings\Jill \My Documents\harvercourtINT. res2. wpd

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LEGAL REPRESENT A TION, LLC
STEVEN M. CYR, MANAGING MEMBER
4850S.W. Scholls Ferry Rd. Suite 305

Portland, Or~on 97225

Case 1:05-cv-01022-ECH

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EXHIBIT B

ifom employee.

...It:è1~OU-i-. ...._.. .~_ -r....;;...--~.. . .._. _..._..._,..
WEEKLY TIME CARD
WEEK ENDING

NAMEj)~d~ ADDRE~
ÚWl~Jl~ 1991

I-l)d/- 7") CEu J
1/ - .. 3' S' -9/" a.-. .. ik

~NO. ~_E
COMMENT

CODE

ff2 ~~

';;~~
3 (7 ~ I ;;~

Case 1:05-cv-01022-ECH

,

Document 16-2

EXPENSES

Filed 07/10/2006

.

EMPLOYEE SIGNATURE

vl~7
681066

FOR LAOR AND MATERIAL ISSUES AFTR OFFICE HOURS. PLEASE CA

OFFICE USE ONLY

TOTAL REGULA
TOTAL OVERTIME

S/~

Page 14 of 17

TOTAL DOUBl TIME

~

"t

c c Cl

.. U'

Case 1:05-cv-01022-ECH

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EXHIBIT C

Case 1:05-cv-01022-ECH

Document 16-2

(I
Facsimile No. (202) 514-9440 Trial Attorney: Jacob E. Christensen Attorney's Direct Line: (202) 307-0878

U.S. Departmt-)of Justice
Tax Division

Filed 07/10/2006

Page 16 of 17

Please reply to: Court of Federal Claims Section P.G. Box 26

Ben Franklin Station
Washington, D. C. 20044

EJO'C:SIF:JChristensen ~
154-2360 CMN 2006100218
June 19, 2006

VIA F ASCIMILE (503-297-7393) AN U.S. MAL
Steven M. Cyr, Esq. 4850 S.W. Scholls Ferr Road Suite 305

Portland, Oregon 97225

RE: The Harer Company v. United States, Fed. Cl. No. 05-1022 T.
Dear Mr. Cyr:

This letter is a follow-up to our telephone conversation during which you indicated that you are preparing supplemental responses to the United States' first set of discovery requests. Than you for your cooperation in that regard.
Accordingly, we ask that your supplemental responses, as well as complete responses to
our second set of discovery requests, be provided to us by June 30, 2006. In light of

the Cour's

order that discovery motions be fied by July 10, 2006, we will be obliged to move for an order to

compel by that date if we do not receive appropriate responses we have had an opportty to
review.

Also, it is our intention to depose varous union employees and other employees who received gift certificates durng the periods at issue in this case. To th~t end, please provide us with at least ten names, along with contact information, of union employees curently residing in the Portland, Oregon area who received payments from plaintiff during the periods at issue. Also please provide at least five names of employees who received gift certificates during the periods at issue, who also reside in the Portland, Oregon area. We note that this information falls within
the scope of our requests for interrogatories.

You may call our trial attorney, Jacob Christensen, with any questions or concerns you may have regarding these issues.

NU~ 11 liJJI

Case 1:05-cv-01022-ECH

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Sincerely yours,

EILEEN J. O'CONNOR
Assistat Attorney General

By: /~~ ~
DAVID GUSTAFSON Chief Cour of Federal Claims Section

Tax Division

1765593.1