Free Reply to Response to Motion - District Court of Federal Claims - federal

Case 1:05-cv-00955-LAS

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS
No. 05-955 T and 05-954 T
(Consolidated on February 22, 2006)

(Judge Loren Å. Smith)

UNICO SERVICES INC. and D. GORDON POTTER,
Plaintiffs
v.

THE UNITED STATES,

Defendant

DECLARATION OF ROBERT J. GEE

I, ROBERT J. GEE, declare as follows:
I. I am an AT A T (Abusive Tax Avoidance Transactions) Group Manager with the

Small Business/Self Employed Division of the Internal Revenue Service.
2. I was asked to review the "Affidavit of

Robert J. Stientjes in Support of

Plaintiffs' Reply to Defendant's Motion to Dismiss" (hereafter the "Stientjes Affidavit"),
an unsigned copy of

which, including an unsigned signature block for a Notary Public
Law in

dated May 30, 2006, is attached to "Plaintiffs' Reply and Memorandum of

Opposition to Defendant's Motion to Dismiss" in the above-captioned consolidated cases.
3. I did review the Stientjes Affidavit.

4. The Stientjes Affidavit references portions of

the time period between June,

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2005 and August 30, 2005. 5. As of June 2005 when I first communicated with Robert 1. Stientjes (hereafter,

"Mr. Stientjes"), I have made a habit of documenting every communication I have with
Mr. Stientjes.
6. I have thoroughly reviewed all of

my records, correspondence and

documentation reflecting communications I had with Mr. Stientjes covering the time
period June 1,2005 through August 31, 2005.

7. Based on my memory and based on my records, correspondence, and
documentation, I do not believe the August 18, 2005 conversation between Mr. Stientjes

and myself described in paragraph 4 of the Stientjes Affidavit took place. There is no
record of such conversation nor reference to such conversation in any of my records,

correspondence, or documentation, and I have no memory of such a conversation. If the
August 18, 2005 conversation Mr. Stientjes describes at paragraph 4 of the Stientjes

Affidavit had taken place, I am confident that the conversation would have been

documented in my fies.
8. I did send a fax regarding the refund claim of

Plaintiff, D. Gordon Potter

(hereafter "Mr. Potter'), to Mr. Stientjes on August i 8, 2005 at 5: 10 p.m. Pacific time.
The fax date and time are reflected on my retained copy of

the fax and correspond to the
the letter attached to the Stientjes

7:05 p.m. Central time date stamp shown on my copy of

Affidavit. In that August 18, 2005, 5: 10 p.m. fax, I asked Mr. Stientjes a question

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concerning the amount of Mr. Potter's refund claim.

9. Following my August 18,2005,5:10 p.m., fax to Mr. Stientjes, there was no
further communication between Mr. Stientjes and myself

until August 21,2005 at 2:11
the Unico Services Form

p.m. when Mr. Stientjes sent me an Email attaching copies of

843 refund claims for the periods ending June 30, 2000, September 30, 2000 and

December 30,2000. Then on August 21, 2005, at 2:57 p.m., Mr. Stientjes sent me another
Email. In this August 21,2005,2:57 p.m. Email, Mr. Stientjes answers my question

regarding the amount of

Mr. Potter's refund claim posed in my August 18,2005,5:10

p.m., fax to Mr. Stientjes. This August 21, 2005, 2:57 p.m. Email does reference my
August 18, 2005 fax; however, it does not reference any August 18, 2005 conversation
between Mr. Stientjes and myself. A copy of

the August 21,20052:1 I p.m. Email and

the August 21,2005,2:57 p.m. Email.bothfromMr.Stientjes to me, are attached as
Exhibits A and B, respectively.

10. A notice of proposed disallowance of refund claim dated August 22, 2005

regarding Mr. Potter was faxed to Mr. Stientjes on August 23,2005. A notice of
proposed disallowance of refund claim dated August 24, 2005 regarding Plaintiff, Unico

Services Inc. was sent to Mr. Stientjes on August 24,2005.
I I. With the exception of communications described in this Declaration, there
were no communications between Mr. Stientjes and myself from August 18, 2005 until
after the August 3 1,2005 fiing date of

the above-captioned consolidated cases.

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12. I had an earlier conversation with Mr. Stientjes on July 18,2005 at 3:20 p.m.
On that day, Mr. Stientjes called me to follow up on a fax he had previously sent to me

regarding Mr. Potter's refund claim. Mr. Stientjes requested that the IRS immediately
issue the statutory notification of claim disallowance and stated that he did not want the

IRS to take six months to resolve the refund claim. He wanted to fie a refund suit to
suspend collection action and to challenge the employee leasing issue. We also talked
about him providing books and records of Unico and Potter for years under audit. Mr.

Stientjes stated repeatedly that he would not produce books and records ofUnico and
Potter for years under audit until the IRS complies with his request to issue the

notification of claims disallowance. I told him that withholding the books and records of
Unico and Potter was not right. He said that both sides would benefit if

the IRS were to

immediately issue the notification of claim disallowance. I told him that I would have to
review our internal procedures to see what needs to be done as I thought the IRS

Memphis office may handle the issuance of the notification of claim disallowance. I then
said that I would get back to him.
13. On July 21, 2005 at 12:58 p.m., Mr. Stientjes left me a voice message. He

stated that he had not heard back from me regarding Mr. Potter's refund claim

disallowance and that he wil assume that I decided not to issue the notification of claim
disallowance as it has been one month since the refund claim was sent to us. Mr. Stientjes said that he would have to take other steps accordingly, that ifhe was wrong
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about this, I should let him know because it had been a month and he would have to take
other steps.
14. On July 22,2005 at 4:25 p.m., I spoke with Mr. Stientjes regarding Mr.

Potter's refund claim. Mr. Stientjes told me that he wanted to fie a refund suit to litigate
the employee leasing issue and suspend collection action. I told Mr. Stientjes that I have
to first abate the tax that we agreed to abate based on the audit reconsideration in order to
reduce the amount of

tax shown on our computer system. I explained that this process

wil make our records match the tax as adjusted on the amended return and that the

abatement is done by the Memphis Campus. Once the abatement is processed, the case is
then sent to another unit in the Bay Area to issue the notification of claim disallowance.

This way the notification of claim disallowance wil match the amount on the amended
return and to our computer systems.
I declare, under penalty of

perjury, in accordance with 28 U.S.C. § 1746, that the

foregoing is true and correct.
Executed on June l , 2006, in San Francisco, California.

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Robert J. Gee

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Page 1 of 1

Gee Robert J
From: Rob Stientjes (rjstientjeS(ggasawaytaxlaw.com)
Sent: Sunday, August 21,20052:11 PM

To: robert.gee(girs.gov
Subject: Copies of amended returns
Importance: High

Attachments: Unico Services.f843.refund.june30.2000.doc; Unico
Services.f843.refund.december31.2000.doc; Unico

Services. f843. refu nd. september30 .2000. doc

Robert J. Stientjes Gasaway & Stientjes LLP 41 S. Old Orchard Ave., Ste. B St. Louis, MO 63119

314.961.3812 phone
314.705.2771 cell 314.918.7120 fax rjstientjes(ggasawaytaxlaw. com

EXHIBit A
6/8/2006

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Page 1 of 1

Gee Robert J
From: Rob Stientjes (rjstientjes(ggasawaytaxlaw.com)
Sent: Sunday, August 21,20052:57 PM

To: robert.gee(girs.gov
Subject: Questions about amended return
In response to your fax sent to me on Wednesday night, I reviewed the Form 1040X that we filed for D. Gordon

Potter for 1998.
I see the error now that you are questioning. Line 22 should read $358,054. It appears that I inadvertently failed to subtract the Total Tax on Line 10 from line 20.
If you have additional questions, please contact me on my cell phone as i will be out of the office on Monday and most of Tuesday.
Robert J. Stientjes Gasaway & Stientjes LLP 41 S. Old Orchard Ave., Ste. B St. Louis, MO 63119

314.961.3812 phone
314.705.2771 cell 314.918.7120 fax rjstientjes(ggasawaytaxlaw. com

EXHIBII 13
6/7/2006