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Tech v. United States

United States District Court, M.D. Pennsylvania

March 26, 2013

BRIAN TECH, on behalf of himself and all others similarly situated, Plaintiff,
v.
THE UNITED STATES OF AMERICA, Defendant

For Brian Tech, on behalf of himself and all others similarly situated, Plaintiff: Christopher Weld, Jr., Edward F. Foye, LEAD ATTORNEYS, Todd & Weld LLP, Boston, MA; Henry D. Levine, Stephen J. Rosen, LEAD ATTORNEYS, Levine, Blaszak, Block and Boothby, LLC, Washington, DC; Jonathan W. Cuneo, LEAD ATTORNEY, Cuneo, Gilbert & DaDuca, LLP, Washington, DC; Kevin T. Peters, LEAD ATTORNEY, Todd and Weld LLP, Boston, MA Lee S. Cohen, Robert E. Kelly, Jr., LEAD ATTORNEYS, Kelly, Parker & Cohen, LLP, Harrisburg, PA; Martin E. Restituyo, LEAD ATTORNEY, Wolf Haldenstein Adler Freeman & Herz LLP, New York, NY; Nicholas E. Chimicles, LEAD ATTORNEY, Benjamin F. Johns, Chimicles & Tikellis LLP, Haverford, PA; Robert Cynkar, LEAD ATTORNEY, Cuneo Gilbert & Laduca, LLP, Washington, DC; William H. Anderson, LEAD ATTORNEY, Cuneo Gilbert & LaDuca, LLP, Washington, DC.

For United States Of America, Defendant: Christopher J. Williamson, Joseph E. Hunsader, U.S. Dept of Justice, Tax Division, Washington, DC; Geoffrey J. Klimas, Department of Justice, Tax Division, Washington, DC.

For T-Mobile USA, Inc., Miscellaneous Party: Paul G. Gagne, Kleinbard Bell & Brecker, Philadelphia, PA; Steven J. Engelmyer, Kleinbard Bell & Brecker, LLP, Philadelphia, PA; Zachary Tomlinson, Davis Wright Tremaine LLP, Seattle, WA.

For Verizon Communications, Inc., Miscellaneous Party: Richard L. Bazelon, Bazelon, Less & Feldman, P.C., Philadelphia, PA.

For AT& T Inc., Amicus: Nolan G. Shenai, Thorp Reed & Armstrong LLC, Philadelphia, PA; Vincent M. Roskovensky, Thorp Reed & Armstrong LLP, Pittsburgh, PA.

OPINION

Page 803

Hon. John E. Jones III.

MEMORANDUM

Before the Court are the cross-Motions for Summary Judgment (Docs. 145 and 210) of the parties to this matter, Plaintiff Brian Tech (" Plaintiff" or " Tech" ) and the United States of America. The cross-Motions have been fully briefed by the parties and are therefore ripe for our review. For the reasons that follow, we shall grant summary judgment in favor of the United

Page 804

States of America on Tech's procedural due process claim and close this case.

I. FACTS

For many years, the Internal Revenue Service (" IRS" ) imposed a 3% Federal Excise Tax (" FET" ) on long distance telephone service pursuant to 26 U.S.C. § 4252. Section 4252 had authorized a tax upon long-distance telephone service that is billed according to distance and elapsed time of the call. Over time, telephone companies changed their billing methods; by 2003, they no longer billed their long-distance customers' calls according to distance and elapsed time. This led various telephone customers to sue the United States, alleging that the three percent excise tax no longer applied. By early 2006, five Courts of Appeal agreed that the excise tax was no longer lawful for long-distance carriers that did not bill their long-distance customers' calls according to distance and elapsed time.

On May 25, 2006, the IRS conceded that the tax was no longer lawful for long-distance carriers that did not bill their long-distance customers' calls according to distance and elapsed time, and issued Notice 2006-50. Notice 2006-50 instructed those ...


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