In Uncategorized on 04/28/2022 at 07:17

Just about a year ago I asked the question “For This We Needed a Full-Dress T. C.?” 6/17/21. I was talking about voluntary dismissal of petitions other than in deficiency cases, where Section 7459(d) mandates entry of decision in favor of Respondent in the amount specified in the SNOD.

But Ch J Maurice B (“Mighty Mo”) Foley’s proposed revisions to the Tax Court Rules of Practice and Procedure show no sign that Judge Gale’s proposed Rule regarding voluntary dismissals reached Ch J Mighty Mo.

So today I most respectfully suggest that we do need more than a full-dress T. C. every time a petitioner wants to drop a non-deficiency case. A trudge through the FRCP and analogous case law is wasteful. As there is at present no Rule 59, might it not be well to renumber present Rule 58 Miscellaneous as Rule 59, and insert at Rule 58 the following.

58. Voluntary Dismissal.

(a) Petitioner may move to dismiss the petition by so moving before Respondent serves an answer or a motion for summary judgment. At any time, Petitioner, any Intervenor, and Respondent may file a stipulation of dismissal signed by all parties who have appeared. Absent such stipulation, a case may be voluntarily dismissed only by court order. Any such dismissal should generally be granted unless any Intervenor or Respondent will suffer clear legal prejudice, other than the mere prospect of a subsequent petition, as a result. If an order granting a voluntary dismissal is issued, the dismissal is deemed to be without prejudice and the lawsuit is treated as if it had never been filed.

(b) Any order in a deficiency proceeding made pursuant to the provisions this Rule 58 shall comply with the provisions of IRC 7459(d).

Ch. Clk. Servoss, please copy.


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