Free Status Report - District Court of Federal Claims - federal

Case 1:05-cv-00223-CFL

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS No. 05-223 T (Judge Charles F. Lettow)

CURTIS L. IVEY and DORIS W. IVEY, Plaintiffs v. THE UNITED STATES, Defendant.

JOINT STATUS REPORT and PROPOSAL FOR FUTURE PROCEEDINGS

Pursuant to the Court's Orders dated April 19, 2005, and August 24, 2006, the parties provide the following status report and a proposed schedule for future proceedings in this case. I. JOINT STATUS REPORT 1. This case was suspended from April 19, 2005, to May 22, 2007, pending final

decisions in Robert J. Isler and Susan L. Isler v. United States, Fed. Cl. No. 01-344 T, and Jeffrey T. Scuteri v. United States, Fed. Cl. No. 01-358 T. The stay in this case automatically terminated yesterday, May 22, 2007. Pursuant to the Court's Order [Doc. #13], the parties propose a schedule for future proceedings below. With respect to this case and/or Charles M. Schnepp and Harriett A. Schnepp v. United States, Fed. Cl. No. 04-1709 T, Walter S. Roberts and Patricia J. Roberts v. United States, Fed. Cl. No. 05-564 T, Lawrence R. McCann and Cecil McCann v. United States, Fed. Cl. No. 06216 T, Jerome C. Jewell v. United States, Fed. Cl. No. 06-228 T, or James H. Epps and Arbelia

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Epps v. United States, Fed. Cl. No. 06-615 T, this status report also provides updates on: Ronald C. Prati and Mary G. Prati v. United States, Fed. Cl. No. 02-60 T; Kenneth C. Keener v. United States, Fed. Cl. No. 03-2028 T; William P. Smith, Jr. and Anne D. Smith v. United States, Fed. Cl. No. 04-907 T; Donald L. Dismore and Bettye G. Dismore v. United States, Fed. Cl. No. 041787 T; and John F. and Pamela F. Hinck v. United States, Fed. Cl. No. 03-865 T. 2. On October 8, 2004, the Court heard oral argument in Isler, Scuteri, and Prati.

The United States filed an additional motion for partial dismissal in Isler on December 12, 2005, in Scuteri on February 3, 2006, and in Prati on June 2, 2006. Plaintiffs filed their responses in Isler and Scuteri on July 17, 2006, and their response in Prati on July 18, 2006. The United States filed its replies on August 28, 2006. On September 29, 2006, defendant filed an additional/alternative ground in support of its motion for partial dismissal in all three cases. Plaintiffs filed their responses on November 13, 2006, and the United States filed its replies on November 30, 2006. The Court held oral argument on all pending motions on May 1, 2007. 3. Pursuant to an opinion issued February 3, 2005, this Court dismissed the

complaint in Hinck. On May 4, 2006, the Federal Circuit affirmed this Court's dismissal of the complaint. See Hinck v. United States, 446 F.3d 1307 (Fed. Cir. 2006). The Federal Circuit held that 26 U.S.C. § 6404(h) grants exclusive subject matter jurisdiction to the Tax Court to review the IRS's denials of interest abatement, and therefore the Court of Federal Claims lacks subject matter jurisdiction to do the same. Under the Federal Circuit's decision, the Court lacks subject matter jurisdiction over the interest abatement claims in Lawrence R. McCann and Cecil McCann v. United States, Fed. Cl. No. 06-216 T, and James H. Epps and Arbelia Epps v. United States, Fed. Cl. No. 06-615 T.

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Plaintiffs' counsel, however, petitioned for Supreme Court review of the Hinck decision, and, on January 12, 2007, the Supreme Court granted certiorari to review the Federal Circuit's decision. The Supreme Court heard oral argument on April 23, 2007. Accordingly, the parties propose that the Court wait until final appellate action, before dismissing the interest abatement claims in McCann and Epps. 4. Keener and Smith were consolidated on August 11, 2005, for briefing of

dispositive motions, and the United States filed a motion for partial dismissal in Keener and Smith on November 4, 2005. On February 21 and 22, 2006, plaintiffs filed their response and a partial motion for summary judgment. On May 5, 2006, defendant filed a response to plaintiffs' summary judgment motion, and, on May 10, 2006, a reply to plaintiffs' response. On August 14, 2006, defendant filed an additional and alternative ground in support of its motion for partial dismissal, plaintiffs filed their response on September 23, 2006, and defendant filed its reply on October 17, 2006. On November 16, 2006, the Court held oral argument on defendant's motion to dismiss. On April 18, 2007, Judge Allegra issued an opinion in Keener and Smith, granting defendant's partial motion to dismiss for lack of jurisdiction taxpayer's period of limitations and tax motivated interest claims. Under the decision, the Court lacks subject matter jurisdiction over the period of limitations and tax motivated interest claims in McCann and Epps. Plaintiffs' attorneys intend to move for reconsideration before this Court and appeal the decision to the Federal Circuit. Accordingly, the parties propose the Court wait until final appellate action, before dismissing the period of limitation and tax motivated interest claims in McCann and Epps.

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5.

In Dismore, the United States filed a motion to dismiss one of plaintiffs' two

claims on January 6, 2006. Plaintiffs filed their response on March 7, 2006, and the United States filed its reply on March 28, 2006. Oral argument was held on the motion on June 9, 2006. The parties submitted post-oral argument supplemental briefs on July 14, 2006. Plaintiffs filed a motion to amend their complaint on July 14, 2006, which the Court granted, thereby mooting the briefing and argument. On December 1, 2006, discovery on plaintiffs' remaining claim was stayed and a summary judgment briefing scheduled entered. Defendant filed its motion for summary judgment on March 30, 2007. 6. II. The parties will file the next status report on or before August 21, 2007.

JOINT PROPOSAL FOR FUTURE PROCEEDINGS As noted above, this case was suspended from April 19, 2005 to May 22, 2007, pending

final decisions in Robert J. Isler and Susan L. Isler v. United States, Fed. Cl. No. 01-344 T, and Jeffrey T. Scuteri v. United States, Fed. Cl. No. 01-358 T, and the stay automatically terminated yesterday. When the stay commenced, plaintiffs had filed their complaint, but defendant had not answered or otherwise responded to it. Accordingly, the parties propose that, on or before July 23, 2007, defendant answer or otherwise respond to plaintiffs' complaint, and that proceedings thereafter be in accord with the procedures set forth in the Rules of the Court of Federal Claims. For the purpose of conserving the resources of the parties and the Court, defendant states that it has asked plaintiffs' attorney of record to consider in a timely manner whether the Court in this particular case lacks jurisdiction, because plaintiffs did not file suit within two years of the IRS disallowing their refund claim, and, if plaintiffs' attorney of record concludes that such

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defect exists, to file a voluntary notice of dismissal pursuant to RCFC 41(a)(1)(i). Defendant's attorneys have authorized plaintiffs' attorney to sign this joint status report and proposal for future proceedings on their behalf. Respectfully submitted, 5/23/07 Date s/Teresa Jean Womack TERESA JEAN WOMACK Redding & Associates, P.C. P.O. Box 924328 Houston, Texas 77292-4328 (713) 965-9244 (713) 621-5227 (fax) Attorney for Plaintiffs 5/23/07 Date s/Bart D. Jeffress by s/Teresa Jean Womack BART D. JEFFRESS 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) 307-6496 (202) 514-9440 (fax) EILEEN J. O'CONNOR Assistant Attorney General DAVID GUSTAFSON Chief, Court of Federal Claims Section STEVEN I. FRAHM Assistant Chief, Court of Federal Claims Section 5/23/07 Date s/David Gustafson by s/Teresa Jean Womack Of Counsel Attorneys for Defendant