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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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