Free Proposed Findings of Uncontroverted Fact - District Court of Federal Claims - federal

Case 1:05-cv-00999-MMS

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Filed 04/11/2006

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS ____________________________________ ) EPSOLON LIMITED, by and through ) SLIGO (2000) COMPANY, INC., ) Tax Matters Partner, ) ) Plaintiff, ) No. 05-999 T ) v. ) Judge Margaret M. Sweeney ) THE UNITED STATES OF ) AMERICA, ) ) Defendant. ) ) PROPOSED FINDINGS OF UNCONTROVERTED FACT 1. Epsolon Limited ("Epsolon"), by and through its Tax Matters Partner, Sligo

(2000) Company, Inc., whose managing member is Keith A. Tucker ("Mr. Tucker"), filed its Form 1065, U.S. Return of Partnership Income, for the tax year ending December 31, 2001, on April 10, 2002 (the "Partnership Return"). (A copy of the Partnership Return as retained in Mr. Tucker's files (unsigned) is attached as Exhibit A to the Declaration of Keith A. Tucker (the "Tucker Declaration").)

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2.

When the Partnership Return was mailed, a U.S. mail return receipt (the

"Partnership Return Receipt") was requested from the Internal Revenue Service (the "Service") upon delivery and was subsequently received back from the Service. That Partnership Return Receipt demonstrates that the Service received the Partnership Return on April 15, 2002. (A copy of the Partnership Return Receipt is attached as Exhibit B to the Tucker Declaration.)

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3.

Consistent with the Partnership Return Receipt, the Partnership Return was date-

stamped upon receipt by the Service on April 15, 2002. (A copy of the first page of the datestamped Partnership Return is attached as Exhibit F to the Declaration of George M. Clarke III (the "Clarke Declaration").)

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4.

The documentation referred to in ¶¶ 1-3 demonstrates that the Partnership Return

was mailed to the Service on or before April 15, 2002, the due date of the Partnership Return without extension under Code section 6072(a).1

Unless otherwise indicated, all references to "section" or "Code" are to the Internal Revenue Code of 1986, as amended. 4

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5.

The Service issued Epsolon an FPAA dated June 17, 2005, which is more than

three years after the Partnership Return was mailed to the Service. (A copy of the FPAA is attached as Exhibit C to the Tucker Declaration.)

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6.

Mr. Tucker and his wife filed a joint Form 1040, U.S. Individual Income Tax

Return on April 10, 2002 (the "Individual Return"). (A copy of the Individual Return, along with its transmittal letter, as retained in Mr. Tucker's files (unsigned) is attached as Exhibit D to the Tucker Declaration.)

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7.

When the Individual Return was mailed, a U.S. Mail return receipt (the

"Individual Return Receipt") was requested upon delivery and subsequently received back from the Service. The Individual Return Receipt shows that the Service received the Individual Return. (A copy of the Individual Return Receipt is attached as Exhibit E to the Tucker Declaration.)

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8.

The documentation referred to in ¶¶ 6-7 demonstrates that the Individual Return

was mailed to the Service on or before April 15, 2002, the due date of the Individual Return without extension under section 6072(a).

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9.

The Service issued what was styled as a Statutory Notice of Deficiency

("SNOD") to Mr. Tucker (and his wife) on April 14, 2005. (A copy of the alleged SNOD is attached as Exhibit G to the Clarke Declaration.)

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10.

The Service has now conceded that the alleged SNOD was invalid when issued

because the SNOD only contained adjustments to prohibited items, and a motion to dismiss Mr. Tucker's Tax Court case for the 2001 taxable year was granted on February 7, 2006. (A copy of the order dismissing that case is attached as Exhibit H to the Clarke Declaration.)

Respectfully submitted,

/s/ A. Duane Webber A. Duane Webber Attorney of Record George M. Clarke III Of Counsel Baker & McKenzie LLP 815 Connecticut Avenue, N.W. Washington, DC 20006 (202) 452-7000 David G. Glickman Robert H. Albaral Of Counsel Baker & McKenzie LLP 2300 Trammel Crow Center 2001 Ross Avenue Dallas, TX 75201 (214) 978-3000 Attorneys for Plaintiff, Epsolon Limited Dated: April 11, 2006

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