Movants argue that once the taxpayer chooses to sue in the Tax Court, his alternative right to sue in the district court is precluded. Ellis v. Commissioner, 14 T.C. 484, 486 (1950); Elbert v. Johnson, 69 F. Supp. 59, 60 (S.D.N.Y. 1946), aff'd, 164 F.2d 421 (2d Cir. 1947); accord, Cook v. United States, 108 F.2d 804, 805 (5th Cir. 1940), cert. den. 310 U.S. 636, 60 S.Ct. 1079, 84 L.Ed. 1406 (1940). There is no doubt that once the taxpayer's tax liability has been determined by either court, it cannot be relitigated for the same taxable year, but there is nothing in any of the above cited cases which speaks to the question of a Government initiated action on the issue of tax liability.
Generally, the courts have upheld the Government's right to counterclaim under circumstances analogous to those presented here. Camp v. United States, 4 Cir., 44 F.2d 126; Ohio Steel Foundry Co. v. United States, Ct.Cl., 38 F.2d 144; Ellis v. Commissioner, 14 T.C. 484.
the Tax Court was set up by the Congress as a tribunal possessed of special competence in tax matters, and, as such, should not forbear to decide issues properly before it. (James H. S. Ellis, 14 T.C. 484, 487 (1950).) In cases of concurrent jurisdiction the court which first reaches the case for trial may then proceed to a final decision without interruption and the doctrine of res adjudicata will apply to the result.
the Tax Court was set up by the Congress as a tribunal possessed of special competence in tax matters, and, as such, should not forbear to decide issues properly before it. [ James H. S. Ellis, 14 T.C. 484, 487 (1950).] In cases of concurrent jurisdiction the court which first reaches the case for trial may then proceed to a final decision without interruption and the doctrine of res adjudicata will apply to the result.
These statutes, we think, make it clear that once this Court has obtained jurisdiction over the income tax liability of a decedent's estate because of the timely filing of a petition by the duly appointed executor or administrator from a proper notice of deficiency by respondent, no action of respondent can place in any other court such jurisdiction to redetermine such liability for the same years while the case is pending in this Court as to oust the jurisdiction of this Court should decision first be made by such other court. Cf. Elbert v. Johnson, 164 F.2d 421 (C.A. 2, 1947), holding that the provisions of section 322(c) of the Internal Revenue Code of 1939 ousts the District Court of jurisdiction to grant recovery of any part of the tax paid for a year which had been placed in issue in a proper petition filed with the Tax Court, and James H. S. Ellis, 14 T.C. 484 (1950). See also Estate of Samuel Want, 29 T.C. 1223, 1239 (1958), modified in part, reversed in part as to other issues 280 F.2d 777 (C.A. 2, 1960), holding a decision of a South Carolina court not to be res judicata as to gift and estate taxes where because of a case pending in this Court with respect to such taxes respondent refused to file a claim in the South Carolina State court upon being directed to do so under pain of being barred and foreclosed of all right and claim against the funds of the estate, but expressing no opinion as to whether the State court erred in its conclusion that it had jurisdiction to decide the validity and extent of the deficiencies in Federal gift and estate taxes already at issue in proper proceedings pending in this Court, and Ross Bowman, 17 T.C. 681, 685 (1951).
Subsequently, when the petitioner was adjudicated a bankrupt, we were not ousted from jurisdiction, but our jurisdiction became concurrent with that of the bankruptcy court. Plains Buying and Selling Association, 5 B.T.A. 1147; M. R. Hoffman, 7 B.T.A. 303; Robert T. Cunningham, 20 B.T.A. 428; Missouri Pacific R.R. Co., 30 B.T.A. 587. Where we and another court have concurrent jurisdiction over a cause involving the correct tax liability of a taxpayer, the applicable rule is that the court which reaches the cause on its calendar first may proceed to the trial for decision of the matter without further delay. James H. S. Ellis, 14 T.C. 484. Here the bankruptcy court reached the cause on its calendar first and proceeded to trial and adjudication, among others, of the only questions presented in the instant proceeding, namely, the liability of petitioner, as transferee of the assets of Startz, as transferee of the assets of Clarkson for unpaid income taxes of Clarkson for 1944 and 1945, and the extent of such liability.
Jurisdiction of the U.S. Tax Court is concurrent with that of other courts. Holtz v. CIR, 256 F.2d 865, 866 (9th Cir 1958); In re Fotochrome, Inc., 346 F. Supp. 958, 961 (ED N Y 1972); Ellis v. CIR, 14 T.C. 484 (1950). "Broadly speaking, the [U.S.] Tax Court has jurisdiction to redetermine tax deficiencies found by the Commissioner of Internal Revenue. . . ." 47B CJS Internal Revenue ยง 1093 (1982).