Opinion
CIVIL CASE NO. 03-00033
October 8, 2003
DOOLEY LANNEN ROBERTS FOWLER LLP, Tamuning, Guam, for Plaintiff Zurich Insurance (Guam), Inc.
KEVIN J. FOWLER, DOOLEY LANNEN ROBERTS FOWLER LLP, for Plaintiff
ERIC A. HEISEL, OFFICE OF THE ATTORNEY GENERAL CIVIL LITIGATION UNIT, Assistant Attorney General, for Defendant
KEVIN J. FOWLER, DOOLEY LANNEN ROBERTS FOWLER LLP, for Plaintiff Zurich Insurance (Guam), Inc.
STIPULATION AND ORDER
The above-captioned parties, through counsel, hereby stipulate that Plaintiff, Zurich Insurance (Guam), Inc., may file an Amended Complaint in the form of Exhibit A attached hereto.
APPROVED AND SO ORDERED.
AMENDED COMPLAINT
Plaintiff, Zurich Insurance (Guam), Inc. ("Zurich"), for its complaint against Defendant, government of Guam, hereby alleges as follows:1. This is a complaint to recover tax rebates under the Guam Territorial Income Tax. This court has exclusive jurisdiction over the subject matter of this action pursuant to 48 U.S.C. § 1424 and 48 U.S.C. § 1421i(h)(1).
2. This action arises under the provisions of 48 U.S.C. § 1421i(h)(1), 28 U.S.C. § 1346(a)(1) and also 26 U.S.C. § 7422.
3. Zurich, Employer Identification Number 98-0065418, is a Guam corporation lawfully organized and operating the business of insurance pursuant to the laws of Guam, with its principal office at 414 W. Soledad Ave, Suite 900, Hag?at?na, Guam 96910.
EXHIBIT A 4. Defendant is the government of Guam.
5. Venue properly lies in this district pursuant to 48 U.S.C. § 1421i(h).COUNT I
6. On January 1, 1998, the Governor of Guam, upon the recommendation of the Guam Economic Development Authority, issued Qualifying Certificate No. 216 to Zurich.
7. Pursuant to the provisions of 12 G.C.A. § 58128.4, Zurich is entitled under its Qualifying Certificate to a 100% rebate of all income tax paid on all income received from insurance underwriting either inside or outside of Guam.
8. On May 31, 2001, Zurich timely filed its income tax return, Form 1120, for tax year 2000 with the Department of Revenue and Taxation, government of Guam.
9. On October 11, 2002, Edward Untalan, Administrator for the Guam Economic Development Authority, issued its Certificate of Compliance certifying that Zurich was in compliance with the terms and conditions of Qualifying Certificate No. 216 for the fiscal year of January 1, 2000 to December 31, 2000.
10. Zurich paid all taxes due under the Guam Territorial Income Tax with respect to tax year 2000, in the amount of $708,444.00, and has never received from the Department of Revenue and Taxation, government of Guam, a statutory Notice of Deficiency.
11. Zurich's 2000 tax return, Form 1120, disclosed an entitlement to a rebate under Zurich's Qualifying Certificate in the amount of $708,444.00 and constituted Zurich's claim for a tax rebate, filed under penalty of perjury, according to the provisions of law in that regard and the regulations of the Secretary of the Treasury, as required by 26 U.S.C § 7422(a).
12. The Department of Revenue and Taxation, government of Guam, has not paid the tax rebate due Zurich for tax year 2000 nor has it delivered to Zurich by registered or certified mail its Notice of Disallowance thereon.
13. Zurich has exhausted all administrative remedies required of it to secure payment of its tax rebate for tax year 2000.
14. Zurich has been damaged by the failure of the Department of Revenue and Taxation, government of Guam, to pay the rebate for tax year 2000 in the amount thereof together with applicable interest, attorney's fees and costs according to law and proof.
COUNT II
15. Zurich re-alleges and incorporates herein by reference all allegations of Paragraphs 1 through 14 of this Complaint as set forth above.
16. Upon the filing of its tax return for tax year 2000, Zurich demanded in writing that the Department of Revenue and Taxation, government of Guam, pay to Zurich its rebate for tax year 2000 in the amount of $708,444.00.
17. On November 27, 2001, George V. Cruz, Director and Tax Commissioner for the Department of Revenue and Taxation, government of Guam, acknowledged Zurich's claim for a tax rebate in the amount of $708,444.00 for tax year 2000, and agreed to the payment of that amount.
18. On November 27, 2001, George V. Cruz, Director and Tax Commissioner for the Department of Revenue and Taxation, government of Guam, issued a Memorandum to Clifford Guzman, Acting Director, Department of Administration, government of Guam, directing him to pay to Zurich its tax rebate of $708,444.00.
19. Prior to the commencement of this action, Defendant acknowledged in writing the existence of the debt herein sued on. An account was stated in writing between Zurich and Defendant and on such statement a balance of $708,444.00 is due which Defendant agreed to pay to Zurich.
20. Although Zurich has demanded payment, no part of the agreed balance has been paid and there is now due, owing and unpaid from Defendant to Zurich the sum of $708,444.00, together with applicable interest, attorney's fees and costs according to law and proof.
WHEREFORE, Zurich prays for judgment as follows:
1. For the sum of $708,444.00 together with applicable interest according to proof;
2. For costs of suit;
3. For attorneys' fees according to proof; and
4. For such other and further relief as the Court may deem appropriate.