Opinion
3784-24L
09-24-2024
FRANK W. SCIACCA & KAREN SCIACCA, Petitioners v. COMMISSIONER OF INTERNAL REVENUE, Respondent
ORDER OF DISMISSAL
Ronald L. Buch Judge.
This case is calendared for trial during the December 9, 2024, Cleveland, Ohio trial session. On September 19, 2024, petitioners filed a Motion to Dismiss in which they state that the Commissioner does not object to the granting of the motion. In Wagner v. Commissioner, 118 T.C. 330 (2002), the Court held that a lien or levy case may be dismissed upon motion by the petitioner. Accordingly, the Court will grant the motion.
In this instance, however, a further bit of explanation is also necessary. In their motion, petitioners ask 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. This does not describe the effect a dismissal would have in this case. 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. § 6330(d)(1)), petitioners may be unable 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. §§ 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. But because petitioners moved for dismissal, and we have informed them of this remedy if a dismissal is not what they truly seek, it is
ORDERED that petitioner's Motion to Dismiss, filed September 19, 2024, is granted, and this case is dismissed.