Free Response to Cross Motion [Dispositive] - District Court of Federal Claims - federal

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Exhibit I

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UNITED STATES DISTRICT FOR THE NORTHERN DISTRICT EASTERN DIVISION
UN_ED STATES OF AMERICA,

COURT OF ILLINOIS

Petitioner,
V. '

Case No, 03 C 9355
Judge Matthew F. Kennelly

SIDLEY AUSTIN BROWN & WOOD LLP, with respect to the matter of the tax liabilities of', 3OHN DOES, United States taxpayers who, during any part of the periodJanuary I, 1996 through October 15, 2003F participatedna transaction i which was or later _ became a "listed transaction"r other'_potentialIy o abusivetax shelter" organizedor sold by the law firm of Sidley Austin Brown & Wood LLP and its predecessor, Brown & Wood LLP, Respondent=
,, /

F
MK;HAIL W. DO_IS

4P[ 1 g Zooo
._

.UNITED STATES' SUPPLEMENTAL: _ _ ; MEMORANDUM IN OPPOSITION TO INTERVEN_¢N
INTRODUCTION

In accordance with the Court's instructions April2, 2004, the United on Statessupplements its opposition intervention this to in summons enforcement action, about which the Seventh Circuit has instructed: [W]e cannot stresstoo emphaticaUy that these proceedings are intendedto be summary in nature.They occur,afteraU, at only the investigative stage of any actionagainsta taxpayer,and no guilt i{abUity the partofthe taxpayer isestablished= or on United States v. Kis, 658 F,2d 525, 535 (7th Cir. 1981). The summons at

: issue here isa special kind ofsummons, known as a "John Doe Summo n slw

"%

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because the identities of the persons about whom information is sought, are unknown to the IRS. Matter of Does, 671 F.2d 977, 978 (6th Cir. 1982). A 3ohn Doe summons the permission may be served, pursuant to §7609(f) I, only with

of a district court which has satisfied itself that (A) the of an ascertainable class of persons; of the class

summons relates to the investigation (B) there is a reasonable

basis for believing that the members

may fail or may have failed to comply with any provision of any internal revenue taw, and (C) the information members, sought, i.e., the identities of the class

is not readily available from other sources. On October 14_.2003t United States permission to serve the

this Court (Con!on, J.)granted.the 3ohn Doe summons

at issue upon SABStW. [Docket no. 1: Govt. Ex. 2 tO the SAB&W failed to fuUy comply,

petition, In re John Does, civil no. 03-C=7226] and, therefore,

on December 29, 2003, the United States filed a. petition to no. 1] _. The summons

enforce the summons. [Docket The summons

at issue here seeks _

demands that SAB&W produce: the name, address and taxpayer identification number for eac_ United States taxpayer who, during any part of the period · 3anuary 1, 1996 through October 15, 2003, participated in a transaction which was or later became a "listed transaction" or other "potentially abusive tax shelter" organized or sold by Sidley Austin Brown & Wood LLP andiS predecessor, Brown & Wood LLP. [Docket no. i: Govt. Ex. 1 to petitlonJ As a guide to compliance, the

summons provides that "the terms _organizer" and 'seller' are defined by Treas. Reg.§ "organizer" 301.5112-1(c)...." This Treasury Regulation defines an defined in

and/or a %oiler" as any "material

adviser" as further

subsection 301.6!12-1(c)(21).

Subsection (c)(2),

in turn, defines a material

advisor, as is retevant here, as any person who makes a _tax s_tement"

All _'§" references

are to the Internal

Revenue Code, 26 U.S.C.
2

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about a transaction for which he receives or expects to receive a "minimum fee" as provided in the regulations, The John Doe summons was issued as part of the IRS investigation into the correctnessof the returns flied byt and the correct liabilities of, the John Doe taxpayers. [Docket no. 1: petition _ 4; Kan Declaration t 4] It is welt established that the IRS need not have probable cause to examine the correctness,of returns or the correct liabilities of any taxpayer. States voPowetl, 379 U.S. 48, 57 (I964). United

Indeed, §7601 directs the IRS to

conduct such examinations. The IRS need not first prove there is likely a violation of the law. The IRS can "investigate merely on suspicionthat the law is being violated, or even just because it wants assurance that it is not." Id., quoting United States v. Morton Salt Co., 338 U.S. 632, 642-643 (1950). The Does do not have a basis for insisting that the IRS cannot examine the correctness of their returns and tax liabilities without a showing that they engaged in a potenUaily abusive tax shelter. Such arguments turn the law on its head, Before responding to the petition, SAB&W sought an order allowlng :it to provide notice of the filing of the action to those persons whom it had determined were members of the 3ohn Doe class. The United States opposedthe motion for notificaUon on the grounds that BDO Seidman, 337 Fo3d802 (7th Cir. 2003), established that members of the John Doe class do not have a right to intervene to oppose enforcement of a summons which seeks identity. [Docket no, 5] On January 12, 2004, the Court granted SAB&W's motion over the opposition of the United States and directed the parties to agree upon the form of an order to effectuate the Court's ruling,z
_! During the April 2 hearing, the Court suggested that the Government waived any objection to the delay attendant to the Court's consideraUon of the numerous motions to intervene because the Government's only objection to SAB&W's proposed order was that it failed to Include Janguage to the effec_ that the order (continuad,..) 3
"mr

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i i
f

,
i

_he Court then issued the _]anuary 'ii .iA_ a list of transactions

12 Order" which included, as Appendix

jli: ,.o.w,.o.o.o..,o.o,,o,,o
i .they had received
= · ! .

D=kot °o. 61
advice

which SAB&W determined were responsive to the

i ithad given notice I!' were asserting thatthe transaction ith respectto which w from SAB&W were not identified on Appendix A.

[Docket no. 7] SAB&W's Status Report informedthe Courtthat: " 6. Respondent will also shortly be filing for L:_ Supplemental order of notification proposing to the Court and _: __'. petitioner supplementalprocedureto address the Identities a of _!.:!: additionalormer clients f Brown & Wood LLP or respondent : f o _' ' '' who may be withinthe scope ofthe Summons but who were not .... ":' _ Covered by the January 13 Order, including ']i_. approximately20
i : I'! {] .'v

:

!il former clients who receivedthe Januan/13 Notice. i: [0bcket no. 7, ¶ 613 , :;: SAB&W i'l_ and the United Statesthen asked the Court to issuea

:! Su:i_,Plemental to"certain order persons who fall withinthe descriptionf the o
! _ ' " # #i'

I_".. In: Does: .... ...._0_;._

$AB&W determined that these "Objecting

Former Clients"

i{i i i:
;.. ;-, _.i "

!i: withinthe descriptionf the John Doe class. re:{ o [Docket no, 8, 17] The i_ CO_Irt enteredthe proposed Agreed Order which providedthatnoticewas to

!i:=6_]given to the "Objecting

Former Clients," Le., those former

clients who

! en a e_ In hstedtransactionsor other potenbaffy abuslve tax she ters !! an_ paid a fee to SAB&W (or its predecessor
,{! : . ,'

Brown & Wood LLP} in

:i _ _;i...continued) shouldbe clear thatitdidnot provide right o intervene. a t [4/2/04 Troat30], The ::L do_et reflects, however,that the January12 Orderwas agreedtoonly astoform, !! at_ithe Court overruled the United States' objection to SAB&W's motion for n0t!_(:at!on_ [Docketnos.5 & 6] The UnitedStates shouldnot be penalized for · respectingthe Court's decisionto grant SAB&W'smotion over the United States' _ obj.!on and then working cooperatively with SAB&W to present an Order which bot_ sides could agree represented the Court s decision. _
_,, ....'

SAB&W referred theJanuary_2 Orderas the3anua_ 13 Order. to
_.

!
_.:, .

:

":
'_

4

i':. "

.'"
....! _.

,

. .

.:

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connection with their participation In the transaction. 4 [Docket no. 61] On April 2, 2004, this Court correctly concluded that the Does do not have a right to intervene under Rule 24(a) of the Federal Rules of Civil

Procedure, as they do not have a statutory right to intervene under §7609 and they do not have a colorable claim of privilege in their identities. The Court has asked for this supplemental memorandum to further address For the

whether the Court should permit intervention under Rule 24(b)(2). reasons that follow, the United States submits permit intervention under Rule 24(b)(2). s

that the Court should not

ARGUMENT There (::an Be No Permissive ZnteP4ention Under Rule 24(b)(2) Zn A Summons Enforcement Action=
Am

Donaldson

Precludes

Permissive

Inten_ention. the Supreme person to The Court

In Donaldson v. United States, 400 U.S. 517 (1971), Court considered

the right of someone other than the summoned

intervene in a summons enforcement action under Rule 24(a)(2). held that absent a "protectable Donaldson, 400 U.S. at 530.

interest," there is no right to intervene. The Donaldson Court expressly rejected the 406

prior law of the Seventh Circuit set down in United States v, Benford, F.2d 1192, 1194 (7th Cir.!969), in a summons.enforcement which held that a taxpayer

could intervene

action based on the fact that it was his liabllib/

As noted above, the payment of a "minimum fee" is one of the elements of a "matedaJ advisor,_ which, in turn, is an organizer or seller. The other element ls the making of a "tax statement. _ Accordingly,the February 6 Order [Docket no. 61] did not expand the 3ohn Doe class beyond the description in the summons.
_/ During the AprU 2 hearing (4/2/04 Tr. at 26) the Court stated that "The government, in its submissions, has avoided any discussion of Rule 24(b). u The United States' Opposition to Intervention, however, did discuss why permissive intervention was Inappropriate. [Docket 51 at 7 - Argument I.C,]

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that was under examination. State Bank, 454 F.2d I249, Supreme Court_ "Donaldson's

Id. at 530; see also United States V. National 1250 n.3 (Tth Cir. 1972). only interest--and As expressed by the

of course it looms large in of

his eyes--lies in the fact that those records presumably contain devils Acme-to-Donaldson payments possessing significance

for federal income tax

purposes." _rd.at 530-53I.

The Does, like_Donaidson, have an interest in

the proceeding only because, presumably, compliance with the summons may result in a determination that they have an additiona! tax liability. The

Supreme Court held that such an interest is not a sufficient basis for intervention. !'d. The Seventh Circuit reached the same conclusion in BDO

Seidman_ 337 F.3d at 813. Donaldson, which addressed intervention as of right, leaves no room for permissive intervention under Rule 24(b) in a summons enforcement action. United States v. Newman, 441 Fo2d 165, 173-174 (Sth Cir.1971).

Absent a _protectable

interest," such as a _coiorable claim of privilege," In rejecting Benford, 406 F.2d at 1194, whether by right or permission, or because

intervention is not permitted.

Donaldson closed the door on intervention, merely because the taxpayer the taxpayer's

was concerned with the outcome

liability is the .subject of the invesUgation. _ The Does' desire

to keep their identities from the IRS slmply because they do not want the. IRS to examine their tax returns is not grounds to intervene. Thus, for

example, the 27 White & Case Does state that they seek permissive intervention because "it is their tax. liability that is at stake;." [Docket no. 53 at 2] Such rationale is no different Benford. Absent a protectable than the now-rejected rationale of

interest or statutory remains controlling

right to intervene law and precludes

pursuant to §7609, Donaldson

62 As the Court recognized, Congress has since provided for intervention in some circumstances, no_found here, in §7509. [4/2/04 Troat 10-12] 6

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intervention B.

in a summons Intervention provides,

enforcement Will Unduly

action. 7 Delay The Proceedings, Its discretion the

Rule 24(b)

in relevant

partn _In exercising

court shall consider whether the

the intervention

Will unduly delay or prejudice

adjudication of rights of the original parties."8 Southmark Corp, v.
950 F.2d 4!6, that 419 (7th Cir. 1991). The Supreme Court has already

Cagan,

determined

the delay a_endant

with intervention

is _undue u in the

context of an ongoing investigation or examination, as is the case here. The , Supreme Court observed;
We therefore hold that the taxpayer's interest is not enough and is not of Sufficient magnitude for us to conclude that he is to be

allowed to intervene.. Were we to hold otherwise, as he would
have us do, we woutd unwarrantedly cast doubt upon and stulti_

the Servic'e s every investigatory move.
Donaldson, Here, moving 400 U.S. at 535. SAB&W_ .by seeking the notification order, and the Does by was distinguishable

to intervene

on the. grounds

that BDO Seidman

(which this Court correctly ruled is not the case), have already unduly
delayed the proceedings. motions The notice procedure requested by SAB&W and

the multiple

to intervene

delayed

this Court's decision by almost 3

7_/ The Chamberlain Does recognized that the only way-to dis_Jnguish this case from Donaldson, was on the ground, now correctly rejected by this Court, that identity is privileged. [Docket no. 54 at 14] _ During the hearings on Aprit I (4/1/04 Tro at 13-15) and April 2 (4/2/04 Tro at 2g-30), the Court focused on a perceived lapse of time from the Does' participation in the transactions (which was not disclosed to the !RS) until the United States sought leave to serve the 3ohn Doe summons, and then from the service of the 3ohn Doe summons on October Z5, 2003, to filing of the enforcement action on December 29, 2003, as a basis for denying the motion to require the Does to extend the statutes of limitations. [Docket 62] We submit that under Rule 24(b), the date on which the United States sought leave to serve the 3ohn Doe summons or commenced this action is not relevant to the question of whether the Does should be permitted to intervene, as Rule 24(b)directs the Court's attention to delay or prejudice caused by the intervention. ?

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months, while statutes of limi_tions on assessment may be running2 Any delay in obtaining the Does' identities may ultimately shorten the time the IRS will have to complete its examinations of the taxpayers and assess
additional tax due, if any.l°

XX.

Zn Any Event_ Summons.

The

Does Identities

Are Responsive

to the

The Does seek to intervene to challenge the conclusion reached by SAB&W that their identities has two parts: (a) the Does allege they did not engage in a transacl:ion which was or later became a "listed transaction" 0r other "potentially abusive tax shelter; _ are responsive to the summons. This challenge

(b) the Does allege that the transaction %rganized" or _sold" by SAB&W.

in which they engaged was not

In addition,

on ApriJ 2_ the Court raised a corollary question of whether

the February 6 Order impermissibly broadened the scope of the summons, We address each of these questions be!ow. A" The Does" Transactions.

As to the Does" flrstcon_ention, while the Does deny that the transactions in which they participated are responsive to _e summons, they Identify their transaction _n any specific way _at SAB&W

do not in their declarations

would allow the United States or the Court to test their allegations.

Of course, if the returns flied by the Does and/or the entJties involved in the .transactions were false or f raudu|entr the statute of limitations will not expire as such assessments can be made at any time. §6501(c)(1). ,!=P=/In the similar context of a stay pending appeal from enforcement of a summons, the Second Circuit (Friendly, 3.) held that it was appropriate to condition a stay "on terms designed to expedite the appeaa and_ if necessary and appropriates to protect against the running of any applicable statute of Jimitations." Turner, 309 F.2d 69, 72 (2d Cir. 1962). Should this Court permit intervention, it should condition such intervention on suspensions of the statutes of limil3tions. 8

i"

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has determined that the transactions

in which the Does engaged Pall wi_in

"

the scope of the summons, u The Does' contention that they should be allowed to intervene to litigate whether the transactions in which they

engaged are within the scope of the summons, without disclosing the entire transaction, must be rejected.lz

Further, the summons seeks only the Does' identitie._ which this Court has correctly concluded are not privileged. can litigate whether their transaction The Does' contention that they

is within the scope of the summons proceeding"

turns what the Seventh Circuit has said is to be a "summary

which occurs, in this case, before the IRS even knows the names of the taxpayers, Fulbright into a series of merits trials for each Doe. Does admit that they engaged in transactions For example, the involving option

contracts [Docket no, 30, Fulbdght

Doe Declaration _ 2] The Government's involving option as some of the "listed

petition and the Kan Declaration reference transactions contracts, such as those described in Notice 2000-44, transactions" or other "potentially

abusive tax shelters" when describing the

3ohn Doe class. [Docket no. i] The Fulbright Does contend that their transaction is not within the scope of the summons because it, allegedly described in Notice 2000-44, had a potential to earn

unlike the transactions

a profit, Such naked assertions cannot prevent the disclosure of non-

At least some of the Does admit that the transaction in which they engaged bears some similarity to the "listed transactions" within the scope of the summons. For example, Hartln Doe 1 states that his transaction is similar to one described in She United States' peUUon and the Kan Declaration, except that his transaction has economic substance° [Declaration of Hartin Doe I _ 9] If such assertions could preclude examination by the IRS,. no taxpayer would ever have his returns examined.. Hartin Doe 3 does not even assert such a distinction. [Declaration of Hartin Doe 3 118] _. The 27 White & Case Does, for example, do not support at all the suggestion in their memorandum that their identities are not within the scope of the summons with a sworn statement. 9¸

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privileged idenUW that will allow the IRS to examine the validity of the transaction. Such a result runs afou! of both Donaldson and Sale, that SAB&W was not organizing and and Kis.

lB. Organization

As to the Does' latter contention,

selling potentially abusive tax shelters, the Does have not denied (by way of declaration or otherwise) that SAB&W provided a "tax statement" for which it was paid a "minimum fee. "zz For example, Baker Does l&2 admit that they

engaged Brown & Wood to provide I.egai advice on the tax aspects of transactions developed by another promoter, And, while Baker Does land 2

deny. that the fee paid to Brown & Wood was contingent on the success of the "opinion," "minimum Baker Does land 2 do not deny that the fee pard exceeded the

fee" contemplated by the regulations (which, assuming Baker Doe or $50,000 depending on thenature of

I is an indfviduai, is either $10,000 the transaction).

Further, while the Does assert that SAB&W was not

organizing or selling, they do not specify what facts and circumstances would give them personal knowledge C. The February as to SAB&W's activities, z4

6 Order.

On Aprff 2, 2004, the Court suggested that a possible basis for permissive intervention was the question of whether the February 6 Order Doe class, and if it did, whether the Does;

expanded the scope of theJohn

Indeed, the premise of the motions to intervene was that SAB&W had provided privileged _advice" about the tax aspects of the transaction, i.e., a _ta× statement" as defined by the regulations. None of the Does have disputed that they paid at least the required _minimum fee" to SAB&W. [See for example, Declaration of Baker Doe 1] It atso should be noted, that whiie the Fulbdght Does deny paying a fee to SAB&W in connection with the transaction, they do not deny paying such a fee for the tax opinion. Indeed, several taxpayers have brought suit against SAB&W and alleged that they were unaware at the time services were rendered or payment was made that SAS&W was involved in the organization and sale of potentially abusive tax shelters. [See Govt. Exs. 23e 24 8_25]. 10

_

_

--.

:

....

,

.....

" :

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could intervene to challenge the disclosure of theit-identities that their identities were beyond the scope of the summons.

on the grounds

The February 5 Order did not change the scope of the summons. merely changed the scope of the notice provided in accordance with the

It

January 12 Order to cure the fact that Appendix A to that order was · narrower than the John Doe class described in the summons. Thus, whfle

the February 6 Order may have expanded the noUcee class covered by the 3anuary I2 Order, it did not expand that class beyond the description of the _ohn Doe class in the summons. The summons demands that SAB&W produce; the namer address and taxpayer fdentification number for each United States taxpayer who, during any part of the period January i, 1996 through October 15, 2003, participated in a transaction which was or later became a _iisted transaction" or other "potentially abusive tax shelter" organized or sold by Sidtey Austin 8town & Wood LLP and its predecessor, Brown & Wood LLP. [Govt. EXoI to petition] that "the terms 'organizer" § 301.6:[I2-1(c) referencing .... As a guide to compliance, the summons provides

and "seller' are defined by Treas. Reg, above, by

" As explained in the Introduction,

the regulations,

the summons provides that an _organizer _ or · for a _minimurn fee." The

"seller" is anyone who issues a "tax statement"

January 12 Order was, according to the Objecting

Former ClienLs (as they

were labeled by SAB&W), narrower than the summons because the January :[2 Order speclfically referenced only 18 transactions in "Appendix A." The

February 6 Order, in contrast, provided that the notice covered any participants in transactions or other "potentially which were or later became a _listed transaction"

abusive tax shelter" who paid a fee to SAB&W. This The addition= of the payment of

description paralJels the summons in scope.

a fee is mereJy one prong of"organization _ and _sale," (in tine with the

l!

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reference in the summons to the regulation · advisor.") objecting

and the definition of "material Former Clients were

Since it did not appear that the Objecting

on the grounds that they did not receive a '_tax statement," Le,, it was not necessary to

advice about the tax aspects of the transaction,

include this other; prong. Indeed., the motions to intervene were premised on the allegation that the Does had received tax advice about the transactions. The Court referenced the allegations of the Schiff Does as one of the

reasons for the Court's concerns _hat the February 6 Order had ImpermissibJy broadened the scope of the summons. [April 2 Tr. at 26]. Schiff Does fail to describe the transaction(s) detail in the DeciaraUon. The

in which ·they engaged with any flied on their behalf,

The motion to intervene

however, provides enough information to demonstrate that the Schiff Does' identities are responsive to the summons. At ¶ 14_ the motion [Docket 16] states: The government might argue that Notice 200:1-45 has some aspects in common with the transactions entered into by Taxpayer, That Notice, however, was promulgated in 200I. Because, as set forth in detail below, the relevant inquiry for application of the privilege is whether Taxpayer had a reasonable expectation of confidentiality at the t_me of the communication with its lawyer, this Notice is irrelevant. SAB&W provided its legal advice to Taxpayer in 2000, before this Notice was promulgated. The "listed transaction" prong of the government's Petition, therefore, is dearly not applicable to Taxpayer. This passage is telling: speciflcai!y referenced first, it refers to a _listed transaction:" Second, it described as a no.

Jn the United States' petition to enforce. the Does engaged in a transaction

contends that the fact:that "listed transactlon"

is irrelevant.

The scope of the John Doe class clearly in a transacUon which was or inter

includes persons who _part(cipated became a 'listed transaction."

The fact that the Does may have engaged in

12

,

·

_

_

i ·

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the transaction definition.

before it was listed does not put them outside the class

CONCLUS][ON The Court should deny the Does" motions to intervene. PATRICK 3. FITZGERALD United S_tes Attorley

CRA WALD l

3E_P_FER GAZAILLE COHEN Trial Attorneys, Tax Division U.S, Department of .lus_ce Post Office Box 55 Ben Franklin Station Washington, D.C. 20044 Telephone: 202/307-6561 FAX 202/514-5238

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,CERTIFICATE OF SERVICE

IT IS HEREBY CERTIFIED thata copy ofthe UnitedStates' RespOnse In Opposition To Intervention is being served by facsimile and U.S. Hail this

Aprt! 13,, 2004, upon the following:
Thomas Linguanti Gregory S. Lynam Baker & McKenzie 130 E. Randolph Dr., Ste. 3500 Chicago, It. 60601 FAX 312/616-7345 Michael I. Saltzman Kathleen H. Pakenharn Daniel H. Smith White _ Case LIP !155 Avenue of the Americas New York1 NY 10036-2728 FAX 212/354-8233 Harvey Silets Katten Huchin Zavis Rosenman 525 W. Monroe, Ste. 1660 Chicago, IL 60661-3693 FAX 312/902-1062 Ronald Safer Schiff Hardin LLP 6600 Sears Tower Chicago, IL 60606 FAX 321/258-5600 Steven S. Brown Daniel T. Hartnett Royal B. Martin Martin, Brown & Sullivan, Ltd. 321 South Plymouth Court Chicago, IL 60604 FAX 312/360-5026 Robert E. HcKenzle Richard K. Hellerman Shekar Adiga Arnstein & Lehr LLP 120 S. Riverside Plaza, Ste. 1200 Chicago, IL 60506 FAX 312/876-0288 Jasper G. Tayror III Prescott B. Pohi Richard Lee Hunn Fulbrtght & Jaworski LLP 1301 Mr.Kinney, Ste. 5100 Houston, "FX77010-3095 FAX 713/651-5245 George W. ConneJy Juan F. Vasquez, Jr. Chamberlain, Hrdlicka, White, Williams & Mar_in 1200 Smith St., Ste. 1400 Houston, TX 77002 FAX 7%3/658-2553 William F. (:onion, Esq. Sidley Austin Brown & Wood, LIP 10 South Dearborn Chicago, IUtnois 60603 FAX 322/853_7036

-Trial Attorneys, Tax Division U.S. Department of Justice P.O, Box 55 Ben Franklin Station Washington, D.C. 20044 Telephone: 202/307-6561 FAX 202/514o5238