Gragg et al v. United States of America et al
Filing
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ORDER DENYING CROSS-MOTIONS FOR SUMMARY JUDGMENT AND SETTING BRIEFING SCHEDULE FOR PARTIES TO REFILE CROSS-MOTIONS by Judge Yvonne Gonzalez Rogers denying 15 Motion for Summary Judgment. (fs, COURT STAFF) (Filed on 4/4/2013)
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UNITED STATES DISTRICT COURT
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NORTHERN DISTRICT OF CALIFORNIA
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CHARLES GRAGG et al.,
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Plaintiff(s),
United States District Court
Northern District of California
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vs.
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ORDER DENYING CROSS-MOTIONS FOR
SUMMARY JUDGMENT AND SETTING
BRIEFING SCHEDULE FOR PARTIES TO
REFILE CROSS-MOTIONS
UNITED STATES OF AMERICA et al.,
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Case No.: 12-CV-03813 YGR
Defendant(s).
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Plaintiffs Charles and Delores Gragg filed this taxpayer suit to recover a refund for taxes
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assessed for disallowed losses attributed to rental real estate activity for tax years 2006 and 2007. In
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their complaint, Plaintiffs allege that under 26 U.S.C. § 469 Ms. Gragg is a real estate professional
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and her real estate rental losses should not have been disallowed as passive activity losses.
The parties have filed cross-motions for summary judgment asking the Court to decide a
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legal issue—whether the rental activities of a real estate professional are subject to the material
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participation requirements of 26 U.S.C. § 469(c)(1) and/or 26 C.F.R. § 1.469-5T.
Having carefully considered the papers submitted, the pleadings, and the oral argument of
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Defendant’s counsel,1 the Court finds that there are insufficient facts in the record to determine
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whether any party is entitled to a judgment as a matter of law. The Court does not wish to issue an
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advisory opinion on the legal issue presented devoid of the context of the undisputed facts of this
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case. Further, the Court requires additional briefing regarding analogous situations and the larger
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context of the application of this principle to tax return activities generally.
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Counsel for Plaintiffs did not appear at the April 2, 2013 hearing.
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Therefore, the Court DENIES both motions WITH LEAVE TO REFILE and SETS the following
briefing schedule:
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Event
Date
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Defendant to file Motion for Summary Judgment
April 26, 2013
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Plaintiffs to file Opposition/Cross-Motion for Summary Judgment
May 10, 2013
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Defendant to file Opposition to Cross-Motion/Reply
May 17, 2013
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Plaintiffs to file Reply
May 24, 2013
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Hearing on Cross-Motions for Summary Judgment
June 11, 2013
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A prefiling conference is not required but otherwise the parties are expected to comply with
the Court’s procedures for filing motions for summary judgment set forth in paragraph 9 of the
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United States District Court
Northern District of California
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Court’s Standing Order in Civil Cases.
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This Order Terminates Docket Numbers 15 & 19.
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IT IS SO ORDERED.
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Date: April 4, 2013
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YVONNE GONZALEZ ROGERS
UNITED STATES DISTRICT COURT JUDGE
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