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                     
              SUSTAINED,                                                              
                        (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                         
              interest,                                                               
                        (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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