Free Order on Motion to Strike - District Court of Federal Claims - federal

Case 1:05-cv-00231-EJD

Document 185

Filed 07/16/2008

Page 1 of 2

In the United States Court of Federal Claims
No. 05-231 T (Filed: July 16, 2008) ************************************* JZ BUCKINGHAM INVESTMENTS LLC, * * Plaintiff, * * v. * * THE UNITED STATES, * * Defendant. * * ************************************* ORDER On July 10, 2008, Defendant filed a document titled "Notice of Relevant Law Review Article," to which was attached a paper by Professors Karen C. Burke and Grason M.P. McCouch of the University of San Diego Law School. The paper is titled "Cobra Strikes Back: Anatomy of a Tax Shelter," and is available online at the Social Science Research Network website, http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1148371.1 On the same day Defendant filed the paper, Plaintiff filed a motion to strike Defendant's Notice of Relevant Law Review Article. Plaintiff argues that the paper submitted by Defendant is irrelevant in that "it offers only the personal and unqualified opinions of its authors ­ nothing of precedential value to this Court," and is improper in that "it is the equivalent of opinion testimony by the Government, which is not only unforgivably tardy (more than one year after the exchange of expert reports), but also impermissible as testimony on legal issues." The Court does not find the paper submitted by Defendant to be relevant or helpful. Much of the paper merely sets forth the authors' personal views on the intended purpose, legal

The website lists this paper as part of a "Working Paper Series," and suggests a citation for this paper as "San Diego Legal Studies Paper No. 08-23." There is no indication that this paper was actually published in a law review. The Court is thus left to guess at what this paper actually is and whether it is even in a final form, calling into question why Defendant's counsel thought it proper to file this paper on the record.

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Case 1:05-cv-00231-EJD

Document 185

Filed 07/16/2008

Page 2 of 2

interpretation, and resulting effect of various sections of the Internal Revenue Code and Treasury Regulations, including Treasury Regulation 1.752-6. Additionally, the paper contains a rather lengthy characterization of facts and events pertaining to this case, including the actions and statements of the IRS and COBRA promoters, even though it is quite doubtful that the authors have any personal knowledge of such events.2 Because the paper is not authority, consists primarily of legal argument and/or analysis on an issue to be decided by this Court, and contains seemingly unsubstantiated statements concerning disputed facts relevant to the present case, Plaintiff's motion to strike Defendant's Notice of Relevant Law Review Article is GRANTED.

s/ Edward J. Damich EDWARD J. DAMICH Chief Judge

Largely, the paper cites newspaper articles and various reports to substantiate the factual characterizations. 2

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