Free Status Report - District Court of Federal Claims - federal

Case 1:07-cv-00739-ECH

Document 14

Filed 07/15/2008

Page 1 of 2

IN THE UNITED STATES COURT OF FEDERAL CLAIMS ___________________________________ No. 07-739 T (Judge Emily C. Hewitt) INTERSPORT FASHIONS WEST, INC., Plaintiff v. THE UNITED STATES, Defendant __________________ STATUS REPORT AND NOTICE OF INTENT TO FILE MOTION TO DISMISS IN PART __________________

The United States is providing this status report to give notice to the Court of its intent to file a motion to dismiss in part the complaint for lack of subject-matter jurisdiction. Plaintiff's complaint seeks the refund of income taxes with respect to tax periods ended September 30, 2001 and September 30, 2002. Because plaintiff has not paid the full amount of tax assessed with respect to the period ended September 30, 2001, the Court lacks jurisdiction to entertain plaintiff's claim with respect to that period under the full payment doctrine of Flora v. United States, 362 U.S. 145 (1960), which requires assessed taxes to be fully paid before the filing of a refund suit.1 The United States' motion will not pertain to plaintiff's claim with

We note that this jurisdictional defect was previously overlooked, as reflected in both our response to the complaint and in the parties' joint preliminary status report. As full payment of the tax is a jurisdictional prerequisite, however, see, e.g., Rocovich v. United States, 933 F.2d 991, 993 (Fed. Cir. 1991), it cannot be waived by action of the parties.

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Case 1:07-cv-00739-ECH

Document 14

Filed 07/15/2008

Page 2 of 2

respect to the tax period ended September 30, 2002. The United States anticipates it will file its motion not later than July 22, 2008. Respectfully submitted, s/ Jacob Christensen JACOB E. CHRISTENSEN 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 Voice: (202) 307-0878 Fax: (202) 514-9440 Email: [email protected] NATHAN J. HOCHMAN Assistant Attorney General DAVID GUSTAFSON Chief, Court of Federal Claims Section STEVEN I. FRAHM Assistant Chief s/ Steven Frahm Of Counsel

July 15, 2008

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