Gragg et al v. United States of America et al

Filing 22

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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1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 8 9 CHARLES GRAGG et al., 10 Plaintiff(s), United States District Court Northern District of California 11 vs. 12 ORDER DENYING CROSS-MOTIONS FOR SUMMARY JUDGMENT AND SETTING BRIEFING SCHEDULE FOR PARTIES TO REFILE CROSS-MOTIONS UNITED STATES OF AMERICA et al., 13 Case No.: 12-CV-03813 YGR Defendant(s). 14 Plaintiffs Charles and Delores Gragg filed this taxpayer suit to recover a refund for taxes 15 16 assessed for disallowed losses attributed to rental real estate activity for tax years 2006 and 2007. In 17 their complaint, Plaintiffs allege that under 26 U.S.C. § 469 Ms. Gragg is a real estate professional 18 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 19 20 legal issue—whether the rental activities of a real estate professional are subject to the material 21 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 22 23 Defendant’s counsel,1 the Court finds that there are insufficient facts in the record to determine 24 whether any party is entitled to a judgment as a matter of law. The Court does not wish to issue an 25 advisory opinion on the legal issue presented devoid of the context of the undisputed facts of this 26 case. Further, the Court requires additional briefing regarding analogous situations and the larger 27 context of the application of this principle to tax return activities generally. 28 1 Counsel for Plaintiffs did not appear at the April 2, 2013 hearing. 1 2 Therefore, the Court DENIES both motions WITH LEAVE TO REFILE and SETS the following briefing schedule: 3 Event Date 4 Defendant to file Motion for Summary Judgment April 26, 2013 5 Plaintiffs to file Opposition/Cross-Motion for Summary Judgment May 10, 2013 6 Defendant to file Opposition to Cross-Motion/Reply May 17, 2013 7 Plaintiffs to file Reply May 24, 2013 8 Hearing on Cross-Motions for Summary Judgment June 11, 2013 9 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 11 United States District Court Northern District of California 10 Court’s Standing Order in Civil Cases. 12 This Order Terminates Docket Numbers 15 & 19. 13 IT IS SO ORDERED. 14 15 Date: April 4, 2013 _______________________________________ YVONNE GONZALEZ ROGERS UNITED STATES DISTRICT COURT JUDGE 16 17 18 19 20 21 22 23 24 25 26 27 28 2

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