-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. * * *Page: Previous 1 2 3 4 5 6 7 8 Next
Last modified: May 25, 2011