Attorney-at-Law

WITHOUT PREJUDICE = EXTREME PREJUDICE

In Uncategorized on 07/06/2016 at 15:28

That’s Judge Buch’s lesson for John A. Sullivan, Docket No. 5095-16SL, filed 7/6/16.

As you can see, this is a lien or levy case, so when John A. asks Judge Buch to dismiss his petition, there should be little to detain the blogger. A quick cite to Wagner, 118 T. C. 330 (2002), a brisk “you got it. Have a nice day” to petitioner, and the parties go their merry way.

But John A. has a new twist, so Judge Buch has some ‘splainin’ to do.

“In his motion, petitioner asks the Court to ‘dismiss this action without prejudice.’ Black’s Law Dictionary defines a dismissal without prejudice as ‘[a] dismissal that does not bar the plaintiff from refiling the lawsuit within the applicable limitations period.’ Black’s Law Dictionary 537 (9th ed. 2009). It defines a case that is dismissed without prejudice as one that is ‘removed from the court’s docket in such a way that the plaintiff may refile the same suit on the same claim.’ Id.” Order, at p. 1.

That might fly in atmospheres less rarefied than as found at 400 Second Street, NW.

Judge Buch: “A dismissal in this case would mean that the IRS may proceed with its proposed collection actions. However, because the period within which to file a petition from the IRS’s determination has long since lapsed (see I.R.C. sec. 6330(d)(1)), petitioner would not be able to refile the same suit on the same claim. And the limitation of one hearing per period would appear to preclude a new determination and petition giving rise to our jurisdiction. See I.R.C. secs. 6320(b)(2) and 6330(b)(2). As a result, once the Court dismisses this case, that dismissal will be final, subject only to a motion to vacate, which must be filed within 30 days of when this Order is entered. See Tax Court Rule 162.” Order, at pp. 1-2.

But John A., after having been catechized by Judge Buch, wants to go ahead, even though he’s not getting what he says he wanted.

Accordingly, John A.’s petition is tossed.

Remember, dismissing a Tax Court petition otherwise than for want of jurisdiction or for mootness means IRS wins. So dismissal without prejudice means dismissal with extreme prejudice.

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