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At the trial session, respondent's counsel orally moved the
Court to dismiss this case for lack of prosecution and find
petitioner liable for the deficiencies and additions to tax as
determined in the notice of deficiency. Respondent also sought
to have a penalty awarded to the United States pursuant to
section 6673(a)1 on the ground that petitioner's position in
instituting this proceeding is frivolous or groundless.
Motion To Withdraw
We first consider petitioner's motion to withdraw her
petition in this case. It is well settled that the filing of a
timely petition in response to a timely notice of deficiency
invests this Court with jurisdiction to finally resolve the
parties’ controversy. Estate of Ming v. Commissioner, 62 T.C.
519, 521 (1974). Additionally, under section 7459(d), if we
dismiss a case for any reason other than lack of jurisdiction,
this Court may enter an order finding the deficiency to be the
amount determined in the notice of deficiency or in some other
appropriate amount. Sec. 7459; see also Rule 123(d).
Consequently, Ms. Hirsh’s petition may not be withdrawn without
prejudice. Graham v. Commissioner, 76 T.C. 853, 858 (1981);
1 All section references are to the Internal Revenue Code in
effect for the taxable years at issue, and Rule references are to
this Court's Rules of Practice and Procedure.
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Last modified: May 25, 2011