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E. District Court Case
In December 1992, after this Court had denied the partners’
motion for summary judgment, petitioners had mailed in one package
to respondent’s IRS Service Center in Cincinnati, Ohio, Forms
1040X, Amended U.S. Individual Income Tax Return, for 1982 and the
carryback years 1979 through 1981. One set of Forms 1040X
reported additional tax and interest and included a check in the
amount of $189,769. A second set of Forms 1040X bore the legend
“PROTECTIVE CLAIM” and sought refunds of the entire amount paid in
the check. In August 1993, Mr. Greer filed a complaint in the
United States District Court for the Eastern District of Kentucky,
naming the United States as a defendant. Mr. Greer’s complaint
was designated civil case No. 93-CV-194-HRW in the District Court
and was assigned to District Court Judge Henry Wilhoit. Mr.
Greer’s complaint sought the refund of the $189,769, plus
interest, and alleged as one of the jurisdictional grounds section
6226. The United States in seeking to dismiss Mr. Greer’s
complaint asserted that no assessment of the $189,769 was
permitted under section 6225(a)(2).
On September 21, 1994, the District Court entered the
following order (the Order):
This matter is before the Court on defendant’s
motion to dismiss plaintiff’s complaint based on lack of
subject matter jurisdiction. Defendant’s motion to
dismiss, although subsequent in time to plaintiff’s
motion for partial summary judgment, logically precedes
a summary judgment motion on the merits.
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