In Uncategorized on 03/29/2023 at 19:17

Kenneth S. Ingber & Karol H. Ingber, Docket No. 20904-22L, filed 3/29/23 (last Palindrome Day this year) had me scratching my head. Judge Mark V Holmes was waking the echoes of my blogpost “Without Prejudice?” 7/20/16.

Ken & Karol want to dismiss their petition from a NOD, and IRS says OK.

Judge Holmes dismisses, but states “without prejudice.”

As I said in my above-cited blogpost “If in fact there was jurisdiction based on a timely petition at that time, and if the one-hearing-per-tax-year rules of Section 6330(c)(4)(A) apply, then any new petition…must be time-barred, no?”

Well, yes and no.

Yes, Ken & Karol can’t go back to Tax Court; even with post-Boechler equitable tolling, they only get one hearing per tax year.

But perhaps like Richard T. Wagner and Margie Wagner, 118 T. C. 330, filed 4/15/2002, the lead case on motions for dismissal from lien/levy cases, they don’t want to be in Tax Court. The late Judge Laro dismissed Richard’s and Margie’s petition without prejudice to their right to go to USDC to fight over their NOL carryforward.

As Ken & Karol are represented by counsel, I must conclude there is a strategic retreat here.

So dismissal of a lien/levy petition is without prejudice both to petitioner and IRS. Judge Laro noted in Wagner that FRCP 41(a)(2) allowed dismissal unless there was prejudice (other than the prospect of another proceeding) to the other side (IRS); here, there isn’t. IRS can proceed with collection as soon as the petition is dismissed, unless Ken & Karol post bond or pay up and seek refund in USDC. And no prejudice to petitioner going to try their luck there; no issue or claim preclusion from Tax Court.

Takeaway- After 56 (count ’em, 56, and I have) years of practicing law, I should know by now that you have to read the cases.


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