Free Motion for Permanent Injunction - District Court of Federal Claims - federal

Case 1:05-cv-00955-LAS

Document 13

Filed 01/13/2006

Page 1 of 5

IN THE UNITED STATES COURT OF FEDERAL CLAIMS ) ) ) ) Plaintiff, ) ) ) ) ) ) THE UNITED STATES OF AMERICA ) ) ) ) Defendant. ) ) ) ____________________________________) UNICO SERVICES INC. f/k/a Unico Replacement Parts, Inc.

Case No. 1:05-cv-00955-LAS

MOTION TO ENJOIN COLLECTION PROCEEDINGS COMES NOW Plaintiff Unico Services Inc. f/k/a Unico Replacement Parts, Inc. ("Plaintiff"), pursuant to Rule 7 of the Rules of the United States Court of Federal Claims, and respectfully moves this Court for a Motion to Enjoin Collection Proceedings against Defendant the United States of America ("Defendant") pursuant to Section 6331(i)(4) of the Internal Revenue Code (the "IRC"). In support of this Motion, Plaintiff states as follows: 1. Plaintiff is a corporation with a business located in Benicia, California and mailing Plaintiff's employee identification number is 95-

address of P.O. Box 887, 94510-0887. 2885601. 2. 3.

Defendant is the United States of America. On August 30, 2005 Plaintiff filed a lawsuit in part for the recovery of (i) monies

illegally exacted from Plaintiff in violation of the Due Process Clause of the United States

Case 1:05-cv-00955-LAS

Document 13

Filed 01/13/2006

Page 2 of 5

Constitution; and (ii) monies illegally seized from Plaintiff in violation of the Takings Clause of the United States Constitution and in part for refund of Federal employment taxes, founded upon the Internal Revenue Code, erroneously assessed and collected by Defendant. 4. The recovery of monies and refund of taxes, penalties, and interest relates to the Federal

employment tax returns of Plaintiff, Forms 941, for the tax periods ended June 30, 2000, September 31, 2000, December 31, 2000, and September 30, 2001. Such tax returns were timely filed by Plaintiff with the Internal Revenue Service. 5. By coercive collection actions including liens, levies, and other collection actions,

Defendant caused Plaintiff to involuntarily pay the full amount of tax erroneously alleged by Defendant for the tax periods ended June 30, 2000, September 31, 2000, December 31, 2000, and September 30, 2001. 6. Pursuant to Section 6331(i) of the Internal Revenue Code (the "IRC") no collection

activities are allowed with respect to the property or rights to property of Plaintiff with respect to any divisible tax during the pendency of proceedings brought by Plaintiff in this Court for recovery of any portion of such divisible tax if Plaintiff would be collaterally estopped from contesting such unpaid tax by reason of such proceedings. Employment tax is divisible tax within the meaning of Section 6331(i)(2). 7. On or about January 5, 2006, Defendant sent a letter to Plaintiff advising Plaintiff that it

intends to proceed with collection action involving tax periods of June 30, 2001, December 31, 2001, June 30, 2005 and September 30, 2005. A copy of the letter is attached to this Motion as Exhibit A. 8. If Defendant is allowed to proceed with collection action, Plaintiff will be collaterally

estopped from contesting such unpaid tax by reason of this collection action. The collection

2

Case 1:05-cv-00955-LAS

Document 13

Filed 01/13/2006

Page 3 of 5

actions, contemplated by Defendant, are in violation of Section 6331(i) and therefore, must be enjoined. 8. This Court has authority to enjoin a levy or collection proceeding pursuant to Section

6331(i)(4). 9. To file this Motion Plaintiff has incurred legal costs. Plaintiff is entitled to claim attorney

fees and expenses pursuant to the Equal Access to Justice Act in the event Plaintiff is the prevailing party on this Motion. WHEREFORE, Plaintiff respectfully prays that this Court order and decree that until hearing and thereafter until further order of this Court that: A. Defendant be enjoined and restrained from collection activities for the

taxable periods at issue as set forth in Plaintiff's Motion and Complaint; B. The Court's order shall remain in full force and effect until such time as

this Court specifically orders otherwise; C. Plaintiff is reimbursed its reasonable attorney fees and expense incurred in

pursuing this Motion in the amount to be determined by the Court and for such other further relief as the Court deems just and proper under the circumstances.

RESPECTFULLY SUBMITTED,

3

Case 1:05-cv-00955-LAS

Document 13

Filed 01/13/2006

Page 4 of 5

Date: January 13, 2006

s/Robert J. Stientjes By Robert J. Stientjes Gasaway & Stientjes, LLP 41 S. Old Orchard Ave., Ste. B Saint Louis, Missouri 63119 (314) 961-3812 telephone (314) 918-7120 facsimile Attorney for Plaintiff

Certificate of Service This is to certify that a copy of the foregoing Motion to Enjoin Collection Proceedings was served on counsel for Defendant by mailing the same on January 13, 2006 in a postage paid envelope wrapper addressed as follows: Jennifer Philpott Wilson U. S. Department of Justice 555 4th Street, N.W. Washington, DC 20044

Date: January 13, 2006

_

By:

s/ Robert J. Stientjes Counsel for Plaintiff Gasaway & Stientjes LLP Robert J. Stientjes 41 S. Old Orchard Ave., Ste. B Saint Louis, Missouri 63119 Telephone: (314) 961-3812 Facsimile: (314) 918-7120

4

Case 1:05-cv-00955-LAS

Document 13

Filed 01/13/2006

Page 5 of 5

5