Free Errata - District Court of California - California

Case 4:07-cv-04826-CW

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Filed 02/21/2008

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JOSEPH P. RUSSONIELLO (Cal Bar. 44332) United States Attorney THOMAS MOORE (ASB 4305-078T) Assistant U.S. Attorney Chief, Tax Division G. PATRICK JENNINGS ADAIR F. BOROUGHS Trial Attorneys, Tax Division U.S. Department of Justice P.O. Box 683, Ben Franklin Station Washington, D.C. 20044-0683 Telephone: (202) 307-6648 Facsimile: (202) 307-0054 E-mail: [email protected] THOMAS M. ROHALL (Wash. St. Bar No. 12201) Special Trial Counsel, Tax Division U.S. Department of Justice 4330 Watt Ave., Suite 470 Stop No. SA 2801 Sacramento, CA 95821-7012 Tel No. (916) 974-5700 Fax No. (916) 974-5732 Attorneys for United States of America IN THE UNITED STATES DISTRICT COURT

16 FOR THE NORTHERN DISTRICT OF CALIFORNIA 17 OAKLAND DIVISION 18 19 20 21 22 23 24 25 26 27 28 vs UNITED STATES OF AMERICA, Defendant. In re: DEAN GORDON POTTER, Debtor. UNICO SERVICES INC., Plaintiff, ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) Case No. C-07-4826-CW

Case No. C-08-00800-CW

STIPULATION AND REQUEST FOR ORDER CONSOLIDATING CASES

Case 4:07-cv-04826-CW

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Filed 02/21/2008

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The United States of America, on behalf of its agency, the Internal Revenue Service (the United States or the Service), by and through its undersigned attorneys, the Plaintiff, Unico Services Inc. (Unico) and the debtor, Dean Gordon Potter (debtor), by and through their undersigned attorneys hereby stipulate to the following: RECITALS (1). The debtor filed his chapter 11 petition with the United States Bankruptcy Court on December 12, 2006. (2). On April 9, 2007, debtor filed an adversary proceeding seeking a tax refund. Potter v. United States, Adv. No. 07-04066-LT (Bankr. N.D. Cal.) The adversary proceeding seeks a refund of individual income tax in the amount of $358,054 for the taxable year ending December 31, 1998. The adversary proceeding relates to an Employee Leasing Arrangement which involved Potter and Unico Services, Inc. ("Leasing Arrangement"). (3). On May 29, 2007, Unico filed a complaint seeking a refund of employment taxes in the United States District Court for the Eastern District of California. Unico Services Inc. v. United States, case no. 2:07-CV-01009-MCE-KJM (E.D. Cal.). The claims in the Unico case also arise out of the Leasing Arrangement. (4). On September 7, 2007, the United States filed a Motion to Withdraw the Reference and to Transfer Venue to The Eastern District of California with the United States Bankruptcy Court for the Northern District of California. (5). Pursuant to Bankruptcy Local Rule 5011-2(a) the United States Motion was transmitted to the District Court for decision. The District Court granted the withdrawal of the reference and denied the transfer of venue, without prejudice. (6). On December 21, 2007, the United States filed a Motion to Transfer Venue with the United States District Court for the Eastern District of California. The Motion sought to transfer venue as to the Unico refund case to the Northern District. The District Court for the Eastern District of California, the Honorable Morrison C. England, Jr. Presiding, granted the United States Motion to Transfer Venue holding that "the interest of justice will be better served if this case and the Potter Federal Tax Disputes are resolved in one forum." -2-

Case 4:07-cv-04826-CW

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Filed 02/21/2008

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(7). On February 6, 2008, the United States filed a Notice of Related Case pursuant to Civil Local Rule 3-13 identifying the transferred Unico refund suit as a related case. On February 12, 2008, this Court entered its Order entitled "Related Case Order" finding that the debtor's case is related to the Unico refund suit. STIPULATION (8). The parties stipulate that for purposes of Rule 42(a) of the Federal Rules of Civil Procedure there are common issues of law and fact present in both cases, such that consolidation of the two cases is warranted for all purposes, including but not limited to discovery, pre-trial, trial, post-trial, and appeal. (9). The parties request that the Court enter an Order consolidating these cases pursuant to Rule 42(a) of the Federal Rules of Civil Procedure. A proposed Order is submitted herewith. Dated: February 20, 2008 JOSEPH P. RUSSONIELLO United States Attorney THOMAS MOORE Assistant U.S. Attorney Chief, Tax Division By: /s/ G. Patrick Jennings G. PATRICK JENNINGS Trial Attorneys, Tax Division United States Department of Justice P.O. Box 683, Ben Franklin Station Washington, D.C. 20044-0683 (202) 307-6648 Attorneys for the United States Dated: February 19, 2008 /s/ John Gigounas JOHN GIGOUNAS Law Offices of John Gigounas 100 Pine Street, Suite 750 San Francisco, CA 94111-5207 (415) 391-4900 Attorneys for Debtor and Unico

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