- 16 - 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.Page: Previous 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 NextLast modified: November 10, 2007