Free Motion for Partial Summary Judgment - District Court of Federal Claims - federal

Case 1:06-cv-00245-EJD

Document 47

Filed 03/07/2008

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS Nos. 06-245T, 06-246T, and 06-247T (Consolidated) MURFAM FARMS, LLC, § By and Through Wendell H. Murphy Jr., § a Partner Other Than Tax Matters Partner, § § PSM FARMS, LLC, § By and Through Stratton K. Murphy, § a Partner Other Than Tax Matters Partner, § § MURPHY PORK PARTNERS, LLC, § By and Through Wendell H. Murphy, Jr., § a Partner Other Than Tax Matters Partner, § § Plaintiffs, § § v. § § UNITED STATES OF AMERICA, § § Defendant. § PLAINTIFFS' MOTION FOR PARTIAL SUMMARY JUDGMENT AS TO THE VALIDITY OF TREASURY REGULATION § 1.752-6 Pursuant to Rule 56 of the Rules of the Court of Federal Claims ("RCFC"), plaintiffs MURFAM Farms, LLC, PSM Farms, LLC, and Murphy Pork Partners, LLC, (collectively, "Plaintiffs"), hereby move for summary judgment in the above-captioned action. In support of this motion, Plaintiffs submit the accompanying Proposed Findings of Uncontroverted Fact pursuant to RCFC 56(h)(1), an Appendix of attached exhibits, and a Memorandum of Law in Support of their Motion. As these materials demonstrate, there is no genuine issue of material fact, and Plaintiffs are entitled to judgment as a matter of law. Specifically, Plaintiffs are entitled to an order that Treasury Regulation 1.752-6 is invalid because (1) the Regulation's retroactive date fails to

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comply with the requirements for retroactive regulations under I.R.C. § 7805, (2) the Regulation is invalid under the two-prong test established in Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984), as it fails to carry out Congressional intent in a reasonable manner, and (3) the Regulation is invalid because the Treasury failed to follow, without good cause, the notice and comment requirements under the Administrative Procedure Act, 5 U.S.C. § 553 (1966). A finding on any one of these grounds is sufficient to invalidate the Regulation, and thus should compel this Court to grant Plaintiffs' Motion. WHEREFORE, Plaintiffs respectfully request that their Motion be granted, and that the Court enter judgment in their favor. Respectfully submitted, By: s/Joel N. Crouch __ Joel N. Crouch State Bar No. 05144220 M. Todd Welty State Bar No. 00788642

MEADOWS, COLLIER, REED, COUSINS & BLAU, L.L.P. 901 Main Street, Suite 3700 Dallas, TX 75202 (214) 744-3700 Telephone (214) 747-3732 Facsimile [email protected] [email protected] ATTORNEYS FOR PLAINTIFFS

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CERTIFICATE OF CONFERENCE On this the 7th day of March, 2008, counsel for contacted counsel Plaintiff for the United States, David Steiner, regarding the relief sought in this Motion. Counsel for the United States stated that they opposed the granting of this Motion.

s/Anthony P. Daddino

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CERTIFICATE OF SERVICE I hereby certify that on March 7, 2008, a copy of the foregoing Motion for Partial Summary Judgment was served upon counsel listed below via electronic means. Dennis M. Donohue, Esq. United States Department of Justice Tax Division P.O. Box 26 Ben Franklin Station Washington DC 20044 (202) 616-3366

s/Joel N. Crouch Joel N. Crouch

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