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

Case 1:05-cv-00773-EJD

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Filed 07/13/2006

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS No. 05-773 T and No. 06-169 T (CONSOLIDATED) (Chief Judge Damich) ___________________________________ DAVID SUNSHINE and KELLY T. HICKEL, Plaintiffs v.

THE UNITED STATES, Defendant __________ UNITED STATES' PROPOSED FINDINGS OF UNCONTROVERTED FACT __________ The United submits the following proposed findings of uncontroverted fact with respect to relevant matters not covered by plaintiffs' proposed findings, pursuant to RCFC 56(h)(2): 1. Plaintiff Kelly Hickel was the Chief Executive Officer of Interstate Sweeping, Ltd. ("Interstate") before 1999, and at least through July, 1999. See Exhibit 1, Affidavit of Kelly T. Hickel; Exhibit 3, Kelly Hickel deposition transcript excerpts (at 75:4-79:19).1

All of the exhibits referenced in the United States' Proposed Findings of Uncontroverted Fact are included in the Appendix attached to the United States' Brief in -1-

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2.

Plaintiff David Sunshine was the President of Interstate prior to and throughout the bankruptcy proceeding. See Exhibit 2, Affidavit of David Sunshine; Exhibit 4, David Sunshine deposition transcript excerpts (at 41:742:21).

3.

At some point during the Interstate Chapter 11 bankruptcy proceeding, Sweepco, LLC ("Sweepco") became a co-proponent of the bankruptcy Plan of Reorganization. See Exhibit 5, First Amended Disclosure Statement (at Section III.B.).

4.

After the Plan of Reorganization was confirmed, Reorganized Interstate received notices of default from the Internal Revenue Service regarding the monthly installment payments required by the Plan of Reorganization on February 27, 2001, September 21, 2001, and October 29, 2001. See Exhibits 6, 7, and 8.

5.

On February 21, 2000, Interstate submitted Quarterly Employment Tax Returns for the second, third, and fourth quarters of 1999, indicating that the full amount required for the payroll tax deposition had not been paid for each quarter. See Exhibits 9, 10, and 11.

6.

Plaintiff David Sunshine's signature appears on Interstate's Quarterly Employment Tax Returns for the second, third, and fourth quarters of 1999.

Opposition to Plaintiffs' Motion for Summary Judgment. -2-

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See Exhibits 9, 10, and 11.

7.

A signature card for Interstate's debtor-in-possession operating account shows that plaintiffs had check signing authority as of February 12, 1999. See Exhibit 12.

8.

A second signature card for Interstate's debtor-in-possession operating account shows that plaintiff David Sunshine, Larry Nelson, and James Mogen had check signing authority as of December 3, 1997. See Exhibit 13.

9.

During the last three quarters of 1999, Interstate made payments from its operating account to creditors. See Exhibit 14.2

10.

Interstate made payroll tax depositions in February, March, April, and September, 1999. See Exhibit 15.

11.

Plaintiff David Sunshine's signature appears on all of the operating account checks and payroll tax deposit checks included in Exhibits 14 and 15.

The canceled checks included in Exhibit 14 are selected in order to be illustrative for the sake of convenience. The exhibit does not include all of the canceled checks that the United States has obtained for Interstate's operating account, which number in the hundreds, but the United States will present the complete set of checks as an exhibit at trial. -3-

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Respectfully submitted, s/Jennifer P. Wilson JENNIFER P. WILSON Attorney of Record U.S. Department of Justice Tax Division Court of Federal Claims Section Post Office Box 26 Ben Franklin Post Office Washington, D.C. 20044 (202) 307-6495 Fax (202) 514-9440 EILEEN J. O'CONNOR Assistant Attorney General DAVID GUSTAFSON Chief, Court of Federal Claims Section ROBERT J. HIGGINS Reviewer s/Robert J. Higgins Of Counsel July 13, 2006

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