Free Status Report - District Court of Federal Claims - federal

Case 1:98-cv-00533-CFL

Document 135

Filed 07/26/2007

Page 1 of 4

IN THE UNITED STATES COURT OF FEDERAL CLAIMS No. 98-533 T, et al. (Judge Lettow) __________ FENTON GINGERICH, et al., Plaintiffs v. UNITED STATES, Defendant

__________ DEFENDANT'S COMPUTATIONS OF THE AMOUNT OF JUDGMENT __________

Pursuant to the Court's June 22, 2007, Order, the parties were to submit their computations of the amount of judgment to be entered in accordance with the Court's decision, Gingerich, et al. v. United States, 2007 WL 1805164. Plaintiffs contend that they are entitled to a refund of all amounts of tax, interest, tax motivated interest and penalties assessed related to the issues that were the subject of the Court's opinion. Defendant does not dispute the accuracy of plaintiffs' numbers, but contends that the judgment amounts should not include the amounts assessed pursuant to 26 U.S.C. 6621(c) (tax motivated interest).1

Section 6221(c) was repealed for tax years ending after December 31, 1989. Omnibus Budget Reconciliation Act of 1989, P.L. 101-239, § 7721(b). 1

1

Case 1:98-cv-00533-CFL

Document 135

Filed 07/26/2007

Page 2 of 4

The tax motivated interest provided for in § 6221(c) was not a partnership item that could be settled by an exchange of letters between counsel, as was acknowledged at the trial by Mr. Redding. Weiner v. United States, 389 F.3d 152, 161-62 (5th Cir. 2004)(Redding Tr. 950, l. 8-13, 951, l. 16-20.) In the closing agreements executed by each of the plaintiffs they "concede[d] the applicability of the increased rate of interest established under Section 6621(c)." (Px. 151 at 256.) The tax motivated interest was assessed within one year of the execution of the closing agreements, and, therefore, was timely. And, also in accordance with § 6211(a), 6221(c)(2), and 6253(c), the assessment of the tax motivated interest was valid even if the assessment of the underlying tax deficiency was not timely. As a result, defendant submits that the amount of refund to be included in the judgment for each plaintiff is the net amount shown below:

Plaintiff Gingerich

Year 1983 1984 1985 1986 1984 1985 1983 1984 1985 1986

Plaintiffs' claim2 $19,318.89 $37,621.66 $22,768.63 $21,841.21 $56,820.71 $1,304.78 $10,629.71 $36,492.38 $26,135.48 $11,418.13

TMI3 $4,713.00 $8,759.00 $4,652.00 $4,003.00 $8,716.00 - 0$3,051.00 $5,904.00 $3,547.00 $1,525.00

Net $14,605.89 $28,862.66 $18,116.63 $17,838.21 $47,564.71 $1,304.78 $7,578.71 $22,511.62 $22,588.48 $9,893.13

Karl

Kim

"Plaintiffs' claim" amounts include assessed tax, assessed interest, and the tax motivated interest. Those are the amounts set out in the plaintiffs' submission regarding the amount of judgment to be entered in this case. TMI refers to the amount of § 6621(c) tax motivated interest assessed for each plaintiff for each tax year indicated. 2
3

2

Case 1:98-cv-00533-CFL

Document 135

Filed 07/26/2007

Page 3 of 4

Liebovich, Albert

1983 1984 1985 1985 1986 1983 1984 1985 1986 1983 1984 1985 1986 1983 1984 1985 1986 1983 1984 1985 1986 1983 1984 1985 1986

$7,305.34 $9,527.21 $9,580.72 $6,590.66 $1,930.73 $5,907.74 $6,825.40 $2,777.35 $6,277.99 $7,637.39 $9,092.40 $6,629.21 $1,986.26 $4,579.40 $6,062.91 $2,802.72 $5,427.72 $1,544.78 $3,149.36 $9,297.90 $2,488.45 $19,464.44 $24.026.95 $27,597.94 $19,246.36

$2,378.00 $1,506.00 $1,478.00 $1,463.00 - 0$874.00 $1,097.00 $572.00 $766.00 $1,152.00 $1,495.00 $936.00 $278.00 $673.00 $961.00 $382.00 $687.00 $287.00 $506.00 $1,281.00 $308.00 $3,176.00 $3,772.00 $1,677.00 $1,042.00 $1,488.00 $5,914.00 $3,840.00 $2,414.00 $2,257.00 $2,439.00 $2,143.00

$4,927.34 $8,021.17 $8,102.72 $5,127.66 $1,930.73 $5,033.14 $5,728.40 $2,205.35 $5,511.99 $6,485.39 $7,597.40 $5,693.21 $1,708.26 $3,906.40 $5,101.91 $2,420.72 $4,740.72 $1,257.78 $2,643.36 $8,016.00 $2,180.45 $16,288.44 $20,254.95 $25,920.94 $18,204.36 $7,438.60 $31,052.30 $23,757.94 $16,832.36 $13,562.26 $13,367.15 $13,838.74

Liebovich, Carl

Liebovich, Gregory

Liebovich, Joe

Liebovich, Larry

Liebovich, Samuel

Rosol

Scruggs

1983 $8,926.60 1984 $36,966.30 1985 $27,597.94 1986 $19,246.36 1983 $15,819.26 1984 $15,806.15 1985 $15,981.74

Yoon

3

Case 1:98-cv-00533-CFL

Document 135

Filed 07/26/2007

Page 4 of 4

Respectfully submitted,

s/Benjamin C. King, Jr. BENJAMIN C. KING, JR. 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) 307-6506 RICHARD T. MORRISON Acting Assistant Attorney General DAVID GUSTAFSON Chief, Court of Federal Claims Section MARY M. ABATE Assistant Chief

s/Mary M. Abate Of Counsel July 26, 2007

2637508.1

4