Daniel C. Greer and Winnie L. Greer - Page 16
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Defendant claims in its motion that this Court is
without subject matter jurisdiction over plaintiff’s tax
refund action as dictated by applicable tax statutes.
Although the Court does not concede to the absence of
subject matter jurisdiction under 28 U.S.C. § 1346, it
feels it is appropriate to dismiss the action without
prejudice, subject to the plaintiff’s right to refile
pending the outcome of related tax court litigation, now
awaiting resolution in excess of six years.
IT IS THEREFORE ORDERED AND ADJUDGED:
(1) that defendant’s motion to dismiss is
(2) that the plaintiff’s complaint is
DISMISSED without prejudice,
(3) that the defendant repay the plaintiff
the amount of tax deficiency paid by the plaintiff as a
prerequisite to the filing of this action, plus
(4) that plaintiff’s motion for summary
judgement is OVERRULED as MOOT.
(Emphasis in the original.)
The District Court subsequently overruled the plaintiff’s motion
to set aside the Order and defendant’s motion to alter or amend
the Order. Petitioners were repaid the $189,769, plus interest,
in early June 1995, after plaintiff’s counsel brought defendant’s
failure to repay to Judge Wilhoit’s attention.
F. The Present Case
After respondent issued notices of deficiency to petitioners
for 1979 through 1982, petitioners timely filed a petition in this
Court in December 2003, contesting the additions to tax and other
items since conceded by petitioners.
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Last modified: November 10, 2007