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Case 1:06-cv-00305-MBH Document 21-2 Filed 04/03/2007 Page 1 of 5

No. 06-305 T

(Judge Marian Blank Horn)

IN THE UNITED STATES COURT OF FEDERAL CLAIMS



CONSOLIDATED EDISON COMPANY
OF NEW YORK, INC. & SUBSIDIARIES

v.

THE UNITED STATES,

Plaintiff

Defendant



DECLARATION OF DAVID N. GEIER



I, David N. Geier, pursuant to 28 U.S.C. § 1746, declare and state to the best of my

knowledge as follows:

1. I am employed as a trial attorney with the United States Department of Justice, Tax

Division in Washington, D.C. I am assigned responsibility for representing the interests of the

United States in the above-captioned case. I am familiar with the documents produced by the

Internal Revenue Service from its administrative files pertinent to the above captioned case, and

the portions produced to Plaintiff by the United States in discovery. I am also responsible for

and familiar with the documents produced by Plaintiff during discovery in the above captioned

matter. I make this declaration in support of the United States’ First and Second Motions to

Compel.



Case 1:06-cv-00305-MBH Document 21-2 Filed 04/03/2007 Page 2 of 5

Discovery Responses

2.

Attached hereto as Exhibit A-1 is a true and correct copy of the initial Privilege

Log Produced by Plaintiff in response to discovery requests by the Government.

3.

Attached hereto as Exhibit A-2 is a true and correct copy of the Privilege Log

produced by Plaintiff on or about December 13, 2006.

4.

Attached hereto as Exhibit A-3 is a true and correct copy of the Plaintiff’s

Response to the United States’ Interrogatories, produced by Plaintiff on or about November 2,

2006.

5.

Attached hereto as Exhibit A-4 is a true and correct copy of the Plaintiff’s

Response to the United States’ Request for Production of Documents, produced by Plaintiff on

or about November 2, 2006.

Correspondence

6.

Attached hereto as Exhibit B-1 is a true and correct copy of a letter dated

November 16, 2006, addressed to Thomas Durham, counsel for Plaintiff.

7.

Attached hereto as Exhibit B-2 is a true and correct copy of a letter dated

December 1, 2006, addressed to David Geier, counsel for the Government.

8.

Attached hereto as Exhibit B-3 is a true and correct copy of a letter dated

December 12, 2006, addressed to Thomas Durham, counsel for Plaintiff.

9.

Attached hereto as Exhibit B-4 is a true and correct copy of a letter dated

December 14, 2006, addressed to David Geier, counsel for the Government.

10.

Attached hereto as Exhibit B-5 is a true and correct copy of a letter dated

December 19, 2006, addressed to Plaintiff’s counsel.

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Case 1:06-cv-00305-MBH Document 21-2 Filed 04/03/2007 Page 3 of 5

11.

Attached hereto as Exhibit B-6 is a true and correct copy of a letter dated

December 20, 2006, addressed to Plaintiff’s counsel.

12.

Attached hereto as Exhibit B-7 is a true and correct copy of a letter dated

December 21, 2006, addressed to Joseph Sergi, counsel for the Government.

Documents Produced in Discovery

13.

Attached hereto as Exhibit C-1 is a true and correct copy of an internal Con

Edison memorandum dated November 20, 1997, produced to the IRS during the audit stage of

the matter currently before this Court.

14.

Attached hereto as Exhibit C-2 is a true and correct copy of an internal Con

Edison memorandum dated November 21, 1997, produced to the IRS during the audit stage of

the matter currently before this Court, and included within the portions of the IRS administrative

file produced to Plaintiff during discovery.

15.

Attached hereto as Exhibit C-3 is a true and correct copy of the relevant excerpts

from Volume 1 of the “EZH Briefing Memo”, entitled “Risk Analysis”, produced to the IRS

during the audit stage of the matter currently before this Court, and included within the portions

of the IRS administrative file produced to Plaintiff during discovery.

16.

Attached hereto as Exhibit C-4 is a true and correct copy of a document titled

“Leasing White Paper,” produced in the course of discovery, containing all redactions requested

by Plaintiff.

17.

Attached hereto as Exhibit C-5 is a true and correct copy of an email dated

February 9, 1998, attaching a document titled ENECO White Paper 4, produced in the course of

discovery, containing all redactions requested by Plaintiff.

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Case 1:06-cv-00305-MBH Document 21-2 Filed 04/03/2007 Page 4 of 5

18.

Attached hereto as Exhibit C-6 is a true and correct copy of an internal Con

Edison email dated December 12, 1997, produced to the IRS during the audit stage of the matter

currently before this Court, and included within the portions of the IRS administrative file

produced to Plaintiff during discovery.

19.

Attached hereto as Exhibit C-7 is a true and correct copy of a document titled

“Leasing White Paper (ENECO 4),” produced in the course of discovery, containing all

redactions requested by Plaintiff.

20.

Attached hereto as Exhibit C-8 is a true and correct copy of an internal Con

Edison email string dated December 12, 1997, produced in the course of discovery, containing

all redactions requested by Plaintiff.

21.

Attached hereto as Exhibit C-9 is a true and correct copy of a letter titled “EZH

RoCa 3 Facility Lease,” marked “DRAFT” produced in the course of discovery.

22.

Attached hereto as Exhibit C-10 is a true and correct copy of a Shearman &

Sterling internal memoranda dated December 4, 1997, titled “EZH RoCa 3Tax Characterization

of German Lease”, produced in the course of discovery.

23.

Attached hereto as Exhibit C-11 is a true and correct copy of a fax cover sheet

dated December 10, 1997, addressed to James Dewey at Pricewaterhouse, attaching a draft legal

opinion, produced in the course of discovery.

24.

Attached hereto as Exhibit C-12 is a true and correct copy of a draft memorandum

from Pricewaterhouse titled “Consolidated Edison Development Leveraged Lease”, produced in

the course of discovery.

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Case 1:06-cv-00305-MBH Document 21-2 Filed 04/03/2007 Page 5 of 5

25.

Attached hereto as Exhibit C-13 is a true and correct copy of the relevant excerpt

from a document discussing various aspects of the LILO Transaction and communications

between the IRS and Plaintiff during the audit phase of the instant transaction, and included

within the portions of the IRS administrative file produced to Plaintiff during discovery.

26.

Attached hereto as Exhibit C-14 is a true and correct copy of the relevant pages

from a spreadsheet discussing various projects under consideration by Con Edison Development,

Inc., produced in the course of discovery.

27.

Attached hereto as Exhibit C-15 is a true and correct copy of the response of

Plaintiff, dated April 9, 2002, to an Information Document Request made by the IRS, and

included within the portions of the IRS administrative file produced to Plaintiff during discovery.

28.

Attached hereto as Exhibit C-16 is a true and accurate copy of a document

entitled “Leasing Overview 11-7-97”, produced in the course of discovery.

Cases

29.

Attached hereto as Exhibit D-1 is a true and accurate copy of the Opinion issued

by the Court of Federal Claims on March 6, 2001 in Precision Pine & Timber, Inc. v. United

States, No. 98-720 C.

I declare under the penalty of perjury that the foregoing is true and correct.

Executed this 3rd day of April, 2007 in Washington D.C.



s/ David N. Geier
DAVID N. GEIER
Trial Attorney, Tax Division
U.S. Department of Justice

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