Richard T. and Margie Wagner - Page 5




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          collection action.  Section 6320 was added to the Code as part of           
          the Internal Revenue Service Restructuring and Reform Act of                
          1998, Pub. L. 105-206, sec. 3401, 112 Stat. 685, 746, and that              
          act made no amendment to section 7459(d), which finds its roots             
          in section 906(c) of the Revenue Act of 1926, ch. 27, 44 Stat.              
          107.  Nor do we know of any provision in the Code that would                
          require us, upon a dismissal of a collection action filed under             
          section 6320(c), to enter a decision for the Commissioner                   
          consistent with the underlying notice of determination.  Whereas            
          the relevant legislative history supported our holding in Dorl v.           
          Commissioner, supra, we are unaware of any legislative history              
          that would support a holding contrary to that which we reach                
          herein.                                                                     
               Our granting of petitioners’ motion is supported by rule               
          41(a)(2),5 which we consult given the absence in our Rules of a             

          5 In relevant part, rule 41 provides:                                       
               Rule 41.  Dismissal of Actions                                         
                    (a) Voluntary Dismissal: Effect Thereof.                          
                         (1) By Plaintiff; by Stipulation.  * * *                     
                    an action may be dismissed by the plaintiff                       
                    without order of court (i) by filing a notice                     
                    of dismissal at any time before service by                        
                    the adverse party of an answer or of a motion                     
                    for summary judgment, whichever first occurs,                     
                    or (ii) by filing a stipulation of dismissal                      
                    signed by all parties who have appeared in                        
                    the action.  Unless otherwise stated in the                       
                    notice of dismissal or stipulation, the                           
                    dismissal is without prejudice, except that a                     
                                                             (continued...)           




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