Richard T. and Margie Wagner - Page 3




                                         -3-                                          
               The parties agree that the Court may dismiss this case                 
          pursuant to petitioners’ request.3  We distinguish this dismissal           
          from our jurisprudence that holds that taxpayers may not withdraw           
          a petition under section 6213 to redetermine a deficiency.  That            
          jurisprudence stems from the seminal case of Estate of Ming v.              
          Commissioner, 62 T.C. 519 (1974).                                           
               In Estate of Ming, the taxpayers moved the Court to allow              
          them to withdraw their petition for a redetermination of their              
          1964, 1965, and 1966 Federal income taxes.  Presumably, they made           
          their motion so that they could refile their lawsuit in District            
          Court.  We denied the motion.  We noted that, whenever this Court           
          dismisses a case on a ground other than lack of jurisdiction, we            
          are generally required by section 7459(d)4 to enter a decision              
          finding that the deficiency in tax is the amount determined in              
          the notice of deficiency.  Id. at 522.  We observed that entering           
          such a decision would serve to preclude the taxpayers from                  
          litigating the case on its merits in District Court.  Id. at                

          3 Respondent does not object to dismissal without prejudice                 
          to petitioners’ filing a refund suit in District Court but takes            
          the position that the dismissal should be with prejudice to their           
          refiling a petition under sec. 6320(c) in our own Court based on            
          the same claim as their existing petition.                                  
          4 Sec. 7459(d) provides in relevant part:                                   
                    SEC. 7459(d).  Effect of Decision Dismissing                      
               Petition.--If a petition for a redetermination of a                    
               deficiency has been filed by the taxpayer, a decision                  
               of the Tax Court dismissing the proceeding shall be                    
               considered as its decision that the deficiency is the                  
               amount determined by the Secretary.  * * *                             




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