Cena et al v. United States Of America

Filing 55

STIPULATION AND ORDER re 54 . Further Case Management Conference set for 12/5/2008 10:30 AM. Signed by Judge Jeremy Fogel on 10/16/08. (dlm, COURT STAFF) (Filed on 10/23/2008)

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JOSEPH P. RUSSONIELLO (CSBN 44332) United States Attorney THOMAS MOORE (ASBN 4305-O78T) Assistant United States Attorney Chief, Tax Division DAVID L. DENIER (CSBN 95024) Assistant United States Attorney 9th Floor Federal Building 450 Golden Gate Avenue, Box 36055 San Francisco, California 94102 Telephone: [phone] Fax: [phone] Attorneys for the United States of America

8 UNITED STATES DISTRICT COURT FOR THE 9 NORTHERN DISTRICT OF CALIFORNIA 10 SAN JOSE DIVISION 11 12 13 v. 14 UNITED STATES OF AMERICA 15 Defendant. 16 17 18 19 20 21 22 23 24 25 26 27 28 JOSEPH T. CENA and DAWN N. HASEGAWA, Plaintiffs, ) ) ) ) ) ) ) ) ) ) No. C-06-03339-JF STIPULATION AND ORDER

IT IS HEREBY STIPULATED AND AGREED by and between plaintiffs Joseph T. Cena and Dawn N. Hasegawa and defendant United of States of America, through their undersigned attorneys, as follows: 1. On May 19, 2006, plaintiffs filed a complaint seeking a tax refund in the amount

of $85,478 with respect to their 2001 federal income tax return. 2. In a Joint Case Management Statement filed on November 9, 2006, the parties

agreed that there were no factual issues in dispute and that the sole legal issue in dispute was whether the capital loss limitations of I.R.C. §§ 1211 and 1212 apply for purposes of calculating alternative minimum taxable income. The parties informed the Court that the same issue was presented to this Court in Paul Norman v. United States, Docket No. 05-02059-RMW. In that case, an Order Denying Plaintiff's Motion for Summary Judgment and Granting Defendant's Motion for Summary Judgment was entered July 19, 2006. A timely Notice of Appeal was filed

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September 18, 2006. The case was docketed before the Ninth Circuit as Paul Norman v. United States, Docket No. 06-16741. 3. The parties filed cross-motions for summary judgment which were scheduled to

be heard on April 6, 2007. 4. Because the parties agreed that the decision by the Ninth Circuit in Paul Norman

v. United States, Docket No. 06-16741 (9th Cir.), may be determinative of the issues raised in the cross-motions, this Court continued the hearing on the cross-motions. 5. The Norman case was argued and submitted to the Ninth Circuit panel on June 3,

2008. In an unpublished Memorandum Opinion filed July 29, 2008, affirming the district court, the Ninth Circuit held that Norman's "AMT capital losses are deductible only directly against AMT income, and that deduction is capped at $3,000 in excess of AMT capital gains pursuant to § 1211(b)." A copy of the Memorandum Opinion is attached hereto as Exhibit A. 6. After a further Case Management Conference on September 26, 2008, the Court

reinstated the cross-motions for summary judgment and directed counsel to set the case for oral argument. The parties were permitted to file additional letter briefs not to exceed five pages. 7. The parties hereby now stipulate and agree that the Ninth Circuit's Memorandum

Opinion in Paul Norman v. United States, Docket No. 06-16741 (9th Cir.), controls the issues raised in the cross-motions and agree to be bound by the Ninth Circuit's reasoning and holding in that case. 8. Plaintiffs, however, contend that the holding in Norman results in a small refund

due to them. The government will consider the plaintiffs' contention. The parties agree that plaintiffs will submit to the government a calculation of the refund to which they believe they are entitled on or before October 24, 2008. The government then will have an IRS agent review plaintiff's calculation to determine whether it agrees. If the parties are in agreement, the case will be settled. If the parties disagree, the Court will be required to resolve the dispute. 9. The parties suggest that the case be set for a further Case Management

Conference on November 28, 2008, to report on the status of the plaintiffs' refund calculation. ///
Stipulation And Order ( N o . C-06-03339-JF)

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Stipulation And Order ( N o . C-06-03339-JF)

Dated: October 8, 2008

/s/ Brian G. Isaacson BRIAN G. ISAACSON Isaacson & Wilson, P.S. Attorney for Plaintiffs JOSEPH P. RUSSONIELLO United States Attorney

Dated: October 9, 2008

/s/ David L. Denier DAVID L. DENIER Assistant United States Attorney Tax Division Attorneys for United States of America

ORDER Pursuant to the Stipulation of the parties and for good cause shown, the Court hereby vacates its order to set the case for oral argument on the cross-motions for summary judgment December 5, and schedules the case for a further case management conference on ---------------- 2008, at November 28, 10:30 a.m. The parties are directed to file a joint case management statement by November 21, 2008. ORDERED this 16th day of October, 2008, at San Jose, California.

JEREMY FOGEL United States District judge

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