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Paragon Tax Group, LLC v. Broadview Networks Holdings Inc.

January 20, 2012

PARAGON TAX GROUP, LLC,
PLAINTIFF,
v.
BROADVIEW NETWORKS HOLDINGS INC., INFOHIGHWAY COMMUNICATIONS CORP., ATX COMMUNICATIONS, INC., AND CORRCOMM ATX, INC., DEFENDANTS.



The opinion of the court was delivered by: Robert F. Kelly, Sr. J.

MEMORANDUM

Presently before the Court is Plaintiff Paragon Tax Group, LLC's ("Plaintiff") Motion for Summary Judgment. Also pending before the Court is a Motion for Summary Judgment filed by Broadview Networks Holdings Inc. ("Broadview"), Infohighway Communications Corp., ATX Communications, Inc. and Corrcomm ATX, Inc. (collectively, "Defendants"). For the reasons set forth below, Paragon's Motion for Summary Judgment will be granted in part and denied in part. Likewise, Defendants' Motion for Summary Judgment will be granted in part and denied in part.

I. FACTS

The instant action is a straightforward breach of contract case.*fn1 Plaintiff is a seven employee company located in Pennsylvania that is primarily in the business of providing companies Sales and Use Tax and Gross Receipts Tax audit defense and refund reviews. (Pl.'s Mem. Law Support Mot. Summ. J. at 2.) Defendants, Broadview and some of its subsidiaries, are Delaware corporations with their headquarters located in New York. (Defs.' Answ. ¶¶ 8-11.) In the Fall of November 2008, Plaintiff offered to provide certain tax related services to Broadview and some of its subsidiaries. (Pl.'s Mem. Law Support Mot. Summ. J. at 3.) Broadview agreed to Plaintiff's offer of its services. (Id.) Plaintiff authored a contract, and Broadview's CFO, Corey Rinker ("Rinker"), reviewed it forwarding it to his General Counsel, Charles Hunter, for additional review. (Id.) Broadview requested various changes, i.e., the deletion of an automatic renewal clause, the addition of subsidiaries and the modification of the signature box to reflect anticipated execution of the agreement by Rinker, and those changes were accepted by Plaintiff and incorporated into the contract. (Id.) Rinker executed the contract on behalf of Broadview, and Todd Turk ("Turk"), Plaintiff's National Tax Manager, executed the contract on behalf of Plaintiff. (Id. at 4.) The executed contract ("Contract") is at issue in this case.

The Contract sets forth the parties, the definition of "Tax Period" and "Refund," the scope of services to be rendered, the fee for the services, the Fee Schedule, Confidentiality and Successor clauses, the Term of the Contract, and an Agreement in Entirety clause. (Id. at 4.) The Contract defines the term "Refund" as:

"Refund" shall mean all amounts (tax, interest and penalties) recovered through the refund claim process. It shall also include refund(s) and /or reductions of: sales and use taxes, gross receipts tax, bad debt, interest (or imputed interest, if applicable) and penalties which have been either paid and/or been given notice of liability by a taxing authority as a result of an audit, and amounts which credited against another tax liability of the Client.

(Id., Ex. E (Contract)).

The "Scope of Services" section of the Complaint provides, in relevant part, as follows: "[Plaintiff] shall examine [Defendants'] records relating to sales and use taxes, gross receipts, and bad debt for the Tax periods and, where applicable, apply for "Refunds" for [Defendants].

* Sales & Use and Bad Debt Refund review

* Gross Receipts Tax Refund Review/Audit Defense In connection with these services, [Plaintiff] will:

***

b. Prepare file and process the petition for Refund or Reductions of Assessment. ***

(Id., Ex. E (Contract)).

The "Fee Section" of the Contract states: Fee: In consideration for performance of the services rendered to [Defendants]:

* [Plaintiff] shall be entitled to receive a Contingent Fee based solely on recovered amounts or reductions of assessments.

* [Plaintiff] shall not be entitled to receive a Contingent Fee in the event that no assessment is reduced or refund is received by [Defendants].

* All amounts due to [Plaintiff] as a result of this Agreement shall be invoiced after a Refund has been received by [Defendants] or a credit has been applied to any obligations of [Defendants]. All amounts due to [Plaintiff] shall be due within ten (10) days of receipt of this invoice. (Id., Ex. E (Contract)).

The "Fee Schedule" of the Contract provides: Contingency Fee Contingency Fee Schedule Cumulative Refund Amount Recovered 30% Gross Receipts Tax Refund All refunds recovered

Review/Audit Defense 30% Sales & Use Tax and Bad Debt All refunds recovered

Refund Review 30% Sales & Use Tax Audit Defense All refunds and/or reductions of assessment *All appeals to the administrative levels and the tax courts of the respective states in which Refund petitions are filed shall be undertaken only upon the mutual ...


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