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

Case 1:05-cv-00738-TCW Document 36-9 Filed 11/22/2006 Page 1 of 24 DALE PARKER, CPA 10/18/2006
63

1 claims?
2

MR. KARTER:

See, the problem with your question

3 is, Coltec is a case that has direct bearing on this case

4 as it stands now, and it should come as no surprise that
5 the Coltec decision, in this room and in many other rooms

6 for contingent liability cases, has been discussed between

7 counsel and client; and it's not clear to me whether
8 you're trying to link up whether that was the impetus for
Because you can ask 10 that question, but to say was it discussed in the context
9

filing these refund claims or not.

11 of is simply asking in the course of an attorney-client

12 conversation that involved these refund claims, did you
13

also talk about the Coltec case.

I don't even know tha t

14 he can answer that, because Coltec has been talked about

15 throughout this case.
16 BY MR. BASSIN:
17
18
Q.

Well, let's try it a different way.

In the context of obtaining advice regarding

19 whether Allied should file corrected refund claims, did
20 Allied and its counsel discuss Coltec and its

21 implications?
22

MR. KARTER:

Well, once again, now, is your

23 question whether the discussion of Coltec was material to
24 filing refund claims or simply whether it was discussed in
25 that part icular conversation?
ARIZONA REPORTING SERVICE, INC.

www.az-reporting.com
265

(602) 274-9944

Phoenix, AZ

Case 1:05-cv-00738-TCW Document 36-9 DALE PARKER, CPA

Filed 11/22/2006

10/18/2006

Page 2 of 24
64

1

MR. BASSIN:

Whe ther it was di scus sed in that

2 particular conversation.
3

MR. KARTER:

You can answer that, if you

4 remember.
5

THE WITNESS:

I don't remember whether we were

6 discussing Coltec at the same time that counsel identified
7 the problem wi th BFI, Inc.

8 BY MR. BASSIN:
9

Q.

No, but I think you're misunderstanding my

10 question.
11

When you were deciding what to do, having

12 discovered the problem, did you also discuss the
13 implications of Coltec as part of obtaining that advice?
14

MR. KARTER:

I think that sounds to me like the

When you say "when 16 you were deciding what to do," he's testified that there

15

same question he just responded to.

17 was a conversation where counsel became aware that a

18 company that had filed refund claims no longer existed,

19 and at that point in time, that's what he's testified as
20 to what the conversation was.
21

Now, when you say "when you were deciding what

22 to do," that involves a span of time.
23
24

MR. BASSIN: MR. KARTER:

Well, okay.

So you're going to have to, again,

25 focus your question so he can determine whether he can
ARIZONA REPORTING SERVICE, INC.

www.az-reporting.com
266

(602) 274-9944

Phoenix, AZ

Case 1:05-cv-00738-TCW Document 36-9 DALE PARKER, CPA

Filed 11/22/2006

10/18/2006

Page 3 of 24
65

1 answer it or not.

2 BY MR. BASSIN:
3

Q.

Was there a span of time between the first

4 indication that there was a problem with the refund claims

5 because of the conversion of BFI, Inc. into BFI, LLC and
6 the time when the plaintiff decided to file new refund

7 claims?
8

MR. KARTER:

So your question now is from the

9 time that it was first discovered, did they decide to file 10 refund claims right then and there, or did some time

11 elapse between the decision to file?
12
13 14

MR. BASSIN: MR. KARTER:
THE WITNESS:

Absolutely.
Okay.

You can answer that.

We decided to file refund claims

15 then, because we were concerned about the fact that the

16 refund claims that we had filed were defective.
17 BY MR. BASSIN:
18
Q.

In the same conversation, that same day that you

19 first discovered that BFI, Inc.
20

MR. KARTER:

If you remember.

21 BY MR. BASSIN:
22 23 24
Q.

- - had converted to BFI, LLC?

A.
Q.

Help me again with your question.

Did you decide to file new refund claims in the

25 same conversation, as part of the same conversation
ARIZONA REPORTING SERVICE, INC.

(602) 274-9944

www.az-reporting.com
267

Phoenix, AZ

Case 1:05-cv-00738-TCW Document 36-9 DALE PARKER, CPA

Filed 11/22/2006

Page 4 of 24
66

lO/18/2006

1 occurring on the same day that you discovered that BFI,

2 Inc. had already converted into BFI, LLC?
3

MR. KARTER:

Decide right then and there to file

4 refund claims?
5

MR. BASSIN:

Right.

6 BY MR. BASSIN:

7 Q. Or was there some passage of time?
8

A.

No, we decided right there and then, because the

9 concern was, we had refund claims that weren't valid.
10
Q.

You immediately knew that when the conversion

11 was discovered, that you had to file new refund claims

12 immediately?
13

A.

Counsel advised that we didn't have valid refund

14 claims, so of course.
15
Q.

Did counsel do any research between discovering

16 that there had been a conversion and advising you that the

17 re fund claims were inval id?
18

MR. KARTER:

I mean you're asking him what

19 20

another party did.

Whether he knows or not

MR. BASSIN:

Well, I gather what he's saying is

21 that as soon as it became clear to both of you that BFI,

22 Inc. had converted to BFI, LLC prior to the filing of 23 refund claims by BFI, Inc., you immediately knew that

24 there was a problem; that the refund claims might not be

25 valid.
ARIZONA REPORTING SERVICE, INC.
(602) 274-9944

www.az-reporting.com
268

Phoenix, AZ

Case 1:05-cv-00738-TCW Document 36-9 DALE PARKER, CPA

Filed 11/22/2006

lO/18/2006

Page 5 of 24
67

1

MR. KARTER:

Well, that's a different question

2 than the one you asked before.
3

You can answer that question.

That's different

4 than asking whether we decided at that exact moment to

5 file refund claims.
6

THE WITNESS:

Was advised that the refund claims

7 were defective.

8 BY MR. BASSIN:
9

Q.

immediately, within minutes after -I don't know if it's minutes or --

10

A.
Q.

11
12 13

Days?
No, it was in that initial conversation that we
Again, the concern was, we didn't

A.

decided to do that.
was a big concern.
Q.

14 have valid refund claims out there; and in my role, that
15 16

We had to correct that problem.

And you and counsel were able to determine that

17 there weren't valid refund claims almost immediately after

18 you put together the two facts that there had been a
19 conversion and the refund claims were filed in the name of

20 the old entity?

21 A. State it again.
22
Q.

You and counsel were able to determine almost

23 immediately that the refund claims might not be valid

24 because - - excuse me, when you learned - - let me start

25 again.
ARIZONA REPORTING SERVICE, INC.
(602) 274-9944

www.az-reporting.com

269

Phoenix, AZ

Case 1:05-cv-00738-TCW Document 36-9 DALE PARKER, CPA

Filed 11/22/2006

Page 6 of 24
68

10/18/2006

1 You and counsel were able to determine almost
2 immediately that the refund claims might not be valid __
3

MR. KARTER:

Well, Stu, first of all, let him

4

speak for himself.

He can't testify for what was in

5 counsel's mind unless it was expressed in a conversation;

6 and if it's limited to the scope of this paragraph, I'll
7

let him talk about it.

He can only testify as to what he

8 knew, okay.
9

MR. BASSIN:
THE WITNESS:

Okay.
When I was told that the refund

10

11 claims might not be valid, we had to correct it, we had to

12 take action.
13 BY MR. BASSIN:
14
Q.

And my question is, was there any time lag

15 between the time that you realized that BFI - _ you and

16 counsel realized that BFI, Inc. had converted into BFI,

17 LLC and the realization that the refund claims might not

18 be valid?
19 20
A.
Q.

Repeat the question.
Was there any time lag between the time that you

21 realized - - well, that you and counsel realized that BFI,

22 Inc. had converted into BFI, LLC and you realized that the

23 refund claims might not be valid?
24

MR. KARTER:

Wait.

Hang on.

Again, you've got
. When you and

25

to be more precise with your questions.
ARIZONA REPORTING SERVICE, INC.

www.az-reporting.com
270

(602) 274-9944

Phoenix, AZ

Case 1:05-cv-00738-TCW Document 36-9 DALE PARKER, CPA

Filed 11/22/2006

Page 7 of 24

10/18/2006
69

1
2 3

counsel realized. ii

He's testified earlier that obviously
So you

he was the one who had recommended a conversion.

What's in this 4 paragraph reflects counsel's discovery in August of 2006

can't group the two of us together.

5 of something it had previously been unaware of, okay.

6 So you'll have to parse the questions. I'll do
7 my best to try to make sense out of them, but you have to
8 be more careful in articulating the precise question.

9 BY MR. BASSIN:
10
Q.

Let's continue to work through this, okay.

11 Let's see if I can get the chronology first.

12 The first thing that happens is that counsel
13 asks you where's BFI, Inc. on this organizational chart?
14

MR. KARTER:

Is that a question?

15 BY MR. BASSIN:
16
Q.

Is that the first thing that happened, roughly

17 speaking?
18
A.
Q.

Roughly speaking.

And then the next thing that happens _ _ that 20 happened was, you indicated that BFI, Inc. had converted
19

21 into BFI, LLC?

22 A. Roughly speaking.
23 24
Q.

Okay.

What happened next?

A.

We were advised, I was advised, that those

25 refund claims might not be valid.
ARIZONA REPORTING SERVICE, INC.

www.az-reporting.com
271

(602) 274-9944

Phoenix, AZ

Case 1:05-cv-00738-TCW Document 36-9 DALE PARKER, CPA

Filed 11/22/2006

Page 8 of 24
70

10/18/2006

1

Q.

And how much time lag was there between your

2 receiving that advice and the time that you indicated that

3 BFI, Inc. had converted into BFI, LLC?
4 5 6 7

A.
Q.

Same conversation.
Minu tes?

A.
Q.

Yeah.
Were there any follow-up conversations on the

8 subj ect of whether the original refund claims might be

9 valid?
10
A.

I'm sure there were subsequent discussions with

11

counsel.

Again, I was advised that they might not be

12 valid, so I'm sure counsel went back and confirmed that.
13

MR. BASSIN:

14 (A recess was taken.)
15 BY MR. BASSIN:
16
17 18
Q.

Let's take about two minutes here.

Let's go back on the record.
Looking at Exhibits 9 through 14, we see that

How long was it 19 between the conversation where you decided that new refund

the new claims were filed August 22.

20 claims had to be filed and the time that those refund
21 claims were submitted?
22
23 24
A.
Q.

As for how many days, is that your question?

Yeah.
MR. KARTER:

Just to be sure that his testimony

25 is being characterized correctly, and you can check your
ARIZONA REPORTING SERVICE, INC.

www.az-reporting.com
272

(602) 274-9944

Phoenix, AZ

Case 1:05-cv-00738-TCW Document 36-9 DALE PARKER, CPA

Filed 11/22/2006

10/18/2006

Page 9 of 24

71

1 Livenote, but what he testified to, as I recall, was that

2 concerns were raised at that meeting and then counsel went

3 back to confirm his concerns.

4 So the question you just asked now is that when
5 you decided, implying that the decision was made right at

6 that moment.
7
8

MR. BASSIN: MR. KARTER:

Oh, okay.

So just state your question again,

9 and I'LL try not to interrupt you, but I want to make sure

10 we don't mischaracterize his testimony.
11

MR. BASSIN:

And I misunderstood something

12 there.
13 BY MR. BASSIN:
14
Q.

Are there three events that - - let's see if we

15 can try to put dates on these things.
16

Do you know when you had that first conversation

17 with counsel about there's a potential problem with the

18 original refund claims?
19
A.
Q.

The first week, ten days of August.

20

And we know that the refund claims were filed

21 Augus t 2 2nd.
22
23
24

A.
Q.

Correct.
Wha t happened in between?

A. Q.

wi th regard to?
With regard to whether -- what to do with the

25

ARIZONA REPORTING SERVICE, INC.

www.az-reporting.com
273

(602) 274-9944

Phoenix, AZ

Case 1:05-cv-00738-TCW Document 36-9 Filed 11/22/2006 Page 10 of 24 DALE PARKER, CPA 10/18/2006
72

1 new knowledge that there was a potential problem with the

2 original refund claims.

3 A. Counsel confirmed that there was a problem with
4 the original refund claims, and we proceeded to correct

5 them.
6

Q.

So there's another conversation that takes place

7 in that period?
8

A.

A confirmation of the concern that was initially

9 raised in that first part of August meeting.
10 11
Q. A.
Q.

Oral or written?
I just remember it being oral.

l2

And the advice that you were given was - - what

13 advice were you given regarding the likelihood that the
14 original refund claims would be found to be invalid?
15

MR. KARTER:

Are you asking him to assign a

16 percentage when you say "what advice were you given"?

l7
18 19

MR. BASSIN:

Yes.
If you were given advice to that

MR. KARTER:

effect. Because you're assuming that he was told the 20 claims have a certain likelihood of being invalid or what.
21 If you can answer the question.
22

THE WITNESS:

I don't remember being told a

23 percentage or anything like that.
24 BY MR. BASSIN:

25 Q. Were you told that there was a possibility that
ARIZONA REPORTING SERVICE, INC.
(602) 274-9944

www.az-reporting.com
274

Phoenix, AZ

Case 1:05-cv-00738-TCW Document 36-9 Filed 11/22/2006 Page 11 of 24 DALE PARKER, CPA 10/18/2006
73

1 those refund claims might be considered valid?
2 3

MR. KARTER: MR. BASSIN:
THE WITNESS:

Valid or invalid?

Valid.
All I remember is that there was

4

5 concern that the refund claims were invalid, so we took

6 action.
7 BY MR. BASSIN:

8 Q. And was there any discussion of the precedential
9 implication of Coltec during this period between when
10 you - - early August, when you found the potential problem,

11 and August 22nd, when you filed the refund claim?
12

MR. KARTER:

If your question - - if you're

13 asking the question with regard to whether that bore on
l4 the decision to file the claims, then that's within the

15 context of Paragraph 5.
16

MR. BASSIN: MR. KARTER:

Okay.
If you're asking about discussions

l7

18 regarding Coltec in general, then that would be beyond the

19 scope of Paragraph 5.
20 BY MR. BASSIN:
21
Q.

Was there any discussion of the precedential

22 implication of Coltec during the period from early August, 23 when you found the potential problem, and August 22nd,

24 when you filed the refund claims, which bore on the
25 analysis of whether or not to file new refund claims?
ARIZONA REPORTING SERVICE, INC.

(602) 274-9944

www.az-reporting.com
275

Phoenix, AZ

Case 1:05-cv-00738-TCW Document 36-9 Filed 11/22/2006 Page 12 of 24 DALE PARKER, CPA 10/18/2006
74
1 2

MR. KARTER:
THE WITNESS:

That question you can answer.

The refund claims would have been

3 filed with or without Coltec's being in the picture, if

4 you will.
5 BY MR. BASSIN:
6

Q.

But my question was different than that.

7 Was there any discussion of the precedential
8 implication of Col tec during the period from early August

9 through August 22 which bore on your analysis of whether

10 or not to file new refund claims?
11
A.

No.

We filed the refund claims because we were

12 concerned they were invalid, the ones that we had

13 previously filed.
l4
Q.

And there was no discussion of Coltec' s

15 precedential implications during the period when you were 16 deciding whether or not to file new refund claims?
17

MR. KARTER:

Wai t a second.

Okay, now --

18 BY MR. BASSIN:

19 Q. In the context of whether to file refund claims,
20 new refund claims.
21
22

MR. KARTER:

Okay.

Now you can answer.

THE WITNESS:

We filed the refund claims because

23 we were concerned that the existing ones were invalid.
24 BY MR. BASSIN:
25
Q.

But that's not my question.

ARIZONA REPORTING SERVICE, INC.

(602) 274-9944

www.az-reporting.com
276

Phoenix, AZ

Case 1:05-cv-00738-TCW Document 36-9 Filed 11/22/2006 Page 13 of 24 DALE PARKER, CPA 10/18/2006
75
1

Is it your testimony that there was no

2 discussion of Coltec' s precedential implications during

3 the period when you were deciding whether or not to file

4 the refund claims, in the context of whether or not to

5 file new refund claims?
6

MR. KARTER:

Do you understand what the question

7 is?
8

Let me try to state it for you, and if you want

9 to correct it
10

MR. BASSIN:

Please do.
Were there any discussions about

11

MR. KARTER:

12 the effect of Coltec that bore on the decision whether or

13 not to file these refund claims?

14 Is that what you were trying to say?
15 16

MR. BASSIN: THE WITNESS:

Yes.
No.
The refund claims would have

17 been filed, as I said.
18 BY

MR. BASSIN:

19 Q. And nobody discussed the implication of
20 Coltec
21

MR. KARTER:

You keep asking the same question

22 and he keeps answering it.
23

MR. BASSIN:

No, he keeps saying - - he's

24 answering a slightly different question, which is, we

25 would have done it anyway; and what I'm asking is __
ARIZONA REPORTING SERVICE, INC.
(602) 274-9944

www.az-reporting.com
277

Phoenix, AZ

Case 1:05-cv-00738-TCW Document 36-9 Filed 11/22/2006 Page 14 of 24 DALE PARKER, CPA 10/18/2006
76
1 2
3 4 5 6

MR. MR.
MR.

KARTER:

But he also answered -- - did you discuss it at all.

BASSIN:
KARTER:

wi th regard to whether the refund

claims would be filed?
MR. MR.

BASSIN:
KARTER:

That's correct.
Okay. I think he's answered that

7 question three times.

8 But you can answer it again.
9

THE WITNESS:

We filed the refund claims because

10 we were concerned that the existing ones
11

MR. KARTER:

I think maybe you can give him the

12 answer that he's expecting if you just respond yes or no,

13 because he asked you whether there was a discussion that
14 related to the decision to file the claims or not, and I

15 think the answer can be responded to as a yes or no

16 answer, and I think that's what he's looking for.
17
18

MR. BASSIN:
THE WITNESS:

Right.
The answer would be no, we didn't

19 file the claims because of Coltec.

20 BY MR. BASSIN:

21 Q. Did you consider Coltec at all in the context of
22 deciding whether or not to file new refund claims?
23

MR. KARTER:

Do you mean, when you say "did you

24 consider," do you mean did he consider himself or did he

25 discuss it with counsel?
ARIZONA REPORTING SERVICE, INC.

(602) 274-9944

www.az-reporting.com
278

Phoenix, AZ

Case 1:05-cv-00738-TCW Document 36-9 Filed 11/22/2006 Page 15 of 24 DALE PARKER, CPA 10/18/2006
77

1 BY MR. BASSIN:
2

Q.

Well, no, did -- well, did Allied -- or did BFI

3 consider Coltec at all when it was deciding whether or not

4 to file new refund claims?
5

MR. KARTER:

So you're asking him about his own

6 considerations?
7
8 9

MR. BASSIN: MR. KARTER:
MR. BASSIN: THE WITNESS:

Right.
Not what he discussed with counsel?

10

Correct. Repeat the question.

11 BY MR. BASSIN:

12 Q. Did BFI consider __
13

MR. KARTER:

BFI.

What do you mean by BFI?

BFI

14

is a corporation.

I mean we're talking about individuals

15

here.
Q.

Corporations don't consider.
Okay.
Well, did you consider Col tec when you

16 BY MR. BASSIN:
17

18 were deciding whether or not to file corrected refund
19 claims?
20 21

MR. KARTER:
THE WITNESS:

You personally.

No.

22 BY MR. BASSIN:
23 24 25
Q.

Didn't even cross your mind?

A.
Q.

With regard to the decision of whether to file?

Yeah.
(602) 274-9944

ARIZONA REPORTING SERVICE, INC.

www.az-reporting.com
279

Phoenix, AZ

Case 1:05-cv-00738-TCW Document 36-9 Filed 11/22/2006 Page 16 of 24 DALE PARKER, CPA 10/18/2006
78
1
2

A.
Q.

No.

Okay.

Can you explain why plaintiff filed a set

3 of refund claims in the name of BFI, LLC?
4

A.

As I understood it, it was a protective measure

5 in case BFI, LLC was determined to be the proper one to

6 have filed them.
7

Q.

And why was a set filed in the name of BFI Waste

8 Systems?
9

A.
Q.

Of North America?

10 11

Yeah.
Because we had submitted the designation

A.

12 statement in BFI North America's name.

l3
14

Q.

I think one last topic here.

Mr. Parker, did you review the complaint in this

15 case before it was filed?
16
A.
Q.

I didn't read it page by page, no.

l7
18

Were you provided a copy?

A.
Q. A.
Q.

Yes.
Were you asked for comments?
As I recall, yes.

19 20 21

Were any of the comments that you had given not

22 incorporated in the final draft?
23 24 25
A.

No.
MR. BASSIN: MR. KARTER:
I'm done.

No questions.
(602) 274-9944

ARIZONA REPORTING SERVICE, INC.

www.az-reporting.com
280

Phoenix, AZ

Case 1:05-cv-00738-TCW Document 36-9 Filed 11/22/2006 Page 17 of 24 DALE PARKER, CPA 10/18/2006
79
1

THE WITNESS:

I do want to correct one

2 statement.
3 BY MR. BASSIN:

4 Q. Please.
5 A. You had phrased the question did Coltec cross my

6 mind. Why don't you restate that question for me.
7 Q. Did Col tec cross your mind when you were
8 considering whether or not to file new refund claims?

9 A. Let me correct my response and saying it crossed
10 my mind, but we would have filed the refund claims anyway.
11
12
13
Q.

Now, in what way did it cross your mind?
MR. KARTER:

If you can recall.

THE WITNESS:

I'm thinking.
I'm just cleaning up.

14 BY MR. BASSIN:
15
Q.

Go ahead, take your time.

16

A.

It crossed my mind from the standpoint of

17 whether that would make the complaint that we had filed in

18 the Federal Court of Claims invalid. 19 Did anything else cross your mind with regard to Q.
20 Coltec?
21
A.

The fact that there had been an unfavorable

22 decision in Coltec?
23 24
Q.

Yeah.

A.

Yes.

But, again, we would have filed those

25 refund claims regardless.
ARIZONA REPORTING SERVICE, INC.
(602) 274-9944

www.az-reporting.com
281

Phoenix, AZ

Case 1:05-cv-00738-TCW Document 36-9 DALE PARKER, CPA

Filed 11/22/2006

Page 18 of 24
80

10/18/2006

1

Q.

Did you take the knowledge that there was an

2 unfavorable decision in Coltec and the fact that there was

3 a refund sui t pending in the Federal Court - - the Court of
4 Federal Claims any further in your mind to decide whether
5

there was any significance

let me strike.

Let me start

6 again.
7

MR. KARTER:

I'm glad we're waiving relevancy

8 objections.
9 BY MR. BASSIN:

10 Q. Did you draw any further significance from the
11 fact that there was a complaint pending in the Court of 12 Federal Claims and that there was the taxpayer unfavorable

13 decision in Coltec?
14

A.
Q.

Say it again, please.

15

Did you draw any further significance from the

16 fact that there was a complaint pending in the Court of
17

Federal Claims and that there was the unfavorable

the

18 taxpayer unfavorable decision in Coltec?
19
A.

Any further significance, I don't know what you

20 mean.
21
22
Q.

In your thought process.

A.

I've testified that it was in my thought

23 process, and then I've testified we would have filed the
24

refund claims regardless.

I don't know what else I can

25 say.
ARIZONA REPORTING SERVICE, INC.
(602) 274-9944

www.az-reporting.com
282

Phoenix, AZ

Case 1:05-cv-00738-TCW Document 36-9 Filed 11/22/2006 Page 19 of 24 DALE PARKER, CPA 10/18/2006

81
1

Q.

Did you consider, as part of this thought

2 process, that it might be a good thing not to be in the

3 Court of Federal -- not to have the ERMI litigation
4 prosecuted in the Court of Federal Claims, in light of
5 Col tec?
6 7

A.
Q.

Of course.
Did you connect the fact that potentially

8 invalid claims might be a vehicle to have the ERMI
9 litigation prosecuted outside the Court of Federal Claims?
10
A.
Q.

Yes.
Did you discuss that with counsel the

11

12 possibility that potentially invalid claims might be a
13 vehicle to have the ERMI litigation prosecuted outside the

l4 Court of Federal Claims?
15
A.

Isn't that beyond the scope?
MR. KARTER:

l6
17 know.
18

You can answer the question if you

THE WITNESS:

Yes.

19 BY MR. BASSIN:

20 Q. What advice did counsel give you?
21 22

MR. KARTER: MR. BASSIN:

Obj ection.

Are you going to instruct not to

23 answer there?
24 25

MR. KARTER: MR. BASSIN:

Yes.

Nothing further.
(602) 274-9944

ARIZONA REPORTING SERVICE, INC.

www.az-reporting.com
283

Phoenix, AZ

Case 1:05-cv-00738-TCW Document 36-9 Filed 11/22/2006 Page 20 of 24 DALE PARKER, CPA lO/l8/2006
82
1
2

MR. KARTER:

We i re going to reserve reviewing

and signing the deposition.
MR. BASSIN:

Elaine's we'll pass on

3 signature.
4 5

One last thing on the record.

We

have a response due to the Court on November 3 rd.

If

6 there are going to be any significant changes in
7 Mr. Parker's testimony, we need to know about it before

8 that.
9

MR. KARTER:

Sure.

What do we have -- well,

10 let's figure out when he's going to have the transcript.

II I mean he's got to have a chance to review it.

12 Can we go off the record so she can advise us as
13 to when the transcript will be available?
14 15

MR. BASSIN:

Okay.

(The deposition concluded at 12:41 p.m.)

16
17
18

19 20 21
22 23 24

DALE PARKER, CPA

25

ARIZONA REPORTING SERVICE, INC.

(602) 274-9944

www.az-reporting.com
284

Phoenix, AZ

Case 1:05-cv-00738-TCW Document 36-9 Filed 11/22/2006 Page 21 of 24 DALE PARKER, CPA 10/18/2006
83

1 STATE OF ARIZONA
2 COUNTY OF MARICOPA
3

ss.

4

BE IT KNOWN that the foregoing deposition was

5 taken before me, JODY L. LENSCHOW, Certified Reporter
6 No. 50192 for the State of Arizona, and by virtue thereof 7 authorized to administer an oath; that the witness before

8 testifying was duly sworn by me; that the questions
9 propounded by counsel and the answers of the witness
10 thereto were taken down by me in shorthand and thereafter

11 transcribed under my direction; that a review of the
12 transcript by the witness was requested; that the
13 foregoing pages contain a full, true, and accurate
14 transcript of all proceedings and testimony had, all to

15 the best of my skill and ability.
16

I FURTHER CERTIFY that I am not related to nor

17 employed by any of the parties hereto and have no interest
18 in the outcome thereof.
19

DATED at Phoenix, Arizona, this 30th day of

20 October, 2006.
21
22 23 24 25

/~ c?~/ld~
~ . DY £. LE HOW, RMR, CRR
Certified Reporter Certificate No. 50192
ARIZONA REPORTING SERVICE, INC.
(602) 274-9944

www.az-reporting.com
285

Phoenix, AZ

Case 1:05-cv-00738-TCW

Document 36-9

Filed 11/22/2006

Page 22 of 24

CERTIFICATE

I hereby cerifY that the trscript of

my deposition is a tre and accurate record of

the

testiony given by me, subject to the additions or corrections set forth on the attched Errta
Sheet. Pusut to Federa Rile 30(e), the reasons for substantive changes to the trancript are

noted.

Name

cAS2 )lf
f (¡ 15/06

Date

23295.2

286

Case 1:05-cv-00738-TCW

Document 36-9

Filed 11/22/2006

Page 23 of 24

DALE PARR
ERRTA

SHEET

I wish to make the following changes or corrections to my deposition:
Pa!!e
10 12
13 13
13

Line
15

Descriotion

Change "Tray" to "Trey"

9

Change "Jeff Sta" to "Geoff Stayer"
Change "Terr" to "Teri"

4
5

Change "An" to "Ane"
Change "Terr" to "Ten"

14
5

14

Change "An" to "Ane"
Change "they" to "there"
In response to counsel's request that we produce the

29

17

44

3-18

Form 3610, attchment to Exhbit 29, a copy of such form is attched.
Change "to fie refud claims then" to "to have counsel research

65

14-15

the validity of the refud claims"

REASON: Testimony at pp. 65-69 reflected some conMi(Jn. . regarding this line of questions. The testimony on these pages should be corrected as necessary in order to reflect that, àt the. time counsel first discovered the conversion of BFL Inc. into I3FI LLC, counsel adised us that there was a potential issue regarding.
the validity of our refimd claims and, as a result, we decided
immediately to have counsel research this issue. This corrected

testimony is consistent with the testimony on pp. 70-72.

,.,..,

- 1 -

:'rii9S2

287

Fotn3610 lRt:ií.Marc1986)

. .'._,

De~rtent of the Tresury - Internl Revenue Service Paae 1 of 43 Symols Audit Statement. AP;FW:HOU:DM:SJC '. .... . Naméof T¡;xpayer SSN or ErN Date Prepared Browlng.Fers Industies, Inc.
.

KInd of Tax

74-1673682

04106/05

Income
DEFICIENCY (OVERASESSMENT)

Docket Number

Tax Period Ended
IRC
TAX (1 014,022) 19 079,286
:3 519,979

. (Increase or decrease in Tax and Penalli~

Case 1:05-cv-00738-TCW

9/30/199
None

9/30/1997 9/30/1998 7/31/1999

SECTION 6662 -

None
.,

Document 36-9

(Xl Interest for 199609,199709 & 199809 will be cOmputed undersecüons 6611(f) & 6601

(Year)

(d) of the Internal Revenue Code.

( X 1 Interest for 9130/96 is subject to the General Agreement on Tariff & Trade.

(X J Inteest for 9130/97 wil be computed under Rev. Rul. 99.40 (Sequa). See.form 2220 for 9/30/98.

Filed 11/22/2006

¡Xi Interest

for

9/30/96 & 9/30/97 is subjec to the provisions of IRC Secton 6621(c). The applicable date wil

be determined based upon the Revenue Agent Report dated 9/0312002.

Page 24 of 24

tv

Dl8kld:

00 00

.BFlApAI.ST.x BFlFT96, BFIFC9-2,BFIFT98, BFlAppeiC' .,........_,-..... -"', - .
Fc3810(A; 3-)

". '-"-'. . ",