Free Notice of Directly Related Case(s) - District Court of Federal Claims - federal

Case 1:05-cv-00971-CCM

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Filed 11/10/2005

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS

DAVID S. LITMAN and MALIA A. LITMAN Plaintiffs-Counterdefendants, vs. THE UNITED STATES Defendant-Counterplaintiffs.

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No. 05-956 T (Judge Mary Ellen Coster Williams)

NOTICE OF DIRECTLY RELATED CASE Defendant-counterplaintiff, The United States, pursuant to Rule 40.2 of the Rules of the United States Court of Federal Claims ("RCFC"), files this Notice of Directly Related Case and states as follows: 1. This case is directly related to the later-filed case of Diener et al. v. The United

States, No. 05-971 T. Diener is currently assigned to Judge Christine O. C. Miller. Pursuant to RCFC 40.2(a)(3), The United States is filing this Notice, captioned in the name of this case (the earlier-filed), in both cases. 2. This case and Diener involve the same claims, property and contract, and are,

therefore, directly related under RCFC 40.2(a)(1)(A) and (B). Specifically, both cases seek refunds of alleged overpayments of income taxes, and the taxes at issue arise from the same sale of assets by, and subsequent liquidation of, a Subchapter S corporation owned jointly by the plaintiffs in this case and Diener. Plaintiffs in both cases claim that the Internal Revenue Service (a) overvalued identical restricted stock received pursuant to the sale of assets contract; and (b)

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Case 1:05-cv-00971-CCM

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Filed 11/10/2005

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erroneously disallowed the same employee compensation deduction for the taxable year ending December 31, 2000. Obviously, consolidation of these cases for discovery and trial will conserve judicial resources and promote an efficient and, where appropriate, consistent determination of the common claims presented. Plaintiffs in both cases are represented by the same attorney. 3. Pursuant to RCFC 40.1(b), 40.2(a)(3) and 42.1, the United States also is filing in

this case, because it is the earlier-filed case, a motion to transfer and suggestion of consolidation. Attached to the motion are copies of the complaints in the two cases. The complaints are virtually identical. Respectfully submitted,

s/ Cory A. Johnson Cory A. Johnson Attorney of Record U.S. Department of Justice Tax Division Court of Federal Claims Section P.O. Box 26 Ben Franklin Station Washington D.C. 20044 202-307-3046

Eileen J. O'Connor Assistant Attorney General David Gustafson Acting Chief, Court of Federal Claims Section Steven I. Frahm Assistant Chief, Court of Federal Claims Section s/ Steven I. Frahm Of Counsel Dated: November 10, 2005
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