Opinion
16891-21
06-03-2022
JENNIFER WAGNER, Petitioner, v. COMMISSIONER OF INTERNAL REVENUE, Respondent
ORDER
Tamara W. Ashford Judge.
This case is currently calendared for trial at the Session of the Court commencing on June 13, 2022, in Tampa, Florida. On May 13, 2022, respondent filed a Motion to Dismiss for Lack of Jurisdiction on the ground that petitioner's petition was not filed within the time prescribed by I.R.C. §§ 6213(a) or 7502 with respect to the notice of deficiency issued for the 2013 taxable year, and no other determination that would confer jurisdiction upon the Court has been issued to petitioner for 2013. By Order served on the parties on May 16, 2022, the Court ordered petitioner to file a written response to respondent's motion no later than May 31, 2022. On June 1, 2022, petitioner filed a two-page document titled "Motion for Voluntary Dismissal Without Prejudice." Therein, petitioner does not address the assertions in respondent's motion that the Court lacks jurisdiction over this case because her petition was not filed within 90 days of the issuance of the notice of deficiency to her for 2013 pursuant to I.R.C. §§ 6213(a) or 7502; according to respondent, the petition was filed on January 2, 2021, which date is 1, 754 days after the issuance of the notice of deficiency. Instead, citing Internal Revenue Manual 35.8.1.3.1 (Aug. 15, 2019) (we note that petitioner incorrectly refers to this as part of the Internal Revenue Code) and Fed.R.Civ.P. 41(a)(2), petitioner requests that the Court dismiss this case without prejudice because "this Court does not have to make a decision regarding the deficiency and the Commissioner will not suffer any prejudice."
Petitioner's filing, however, in addition to not addressing the timeliness of her petition, does not address the import of this Court's opinion in Estate of Ming v. Commissioner, 62 T.C. 519 (1974), on this case. In Estate of Ming, the taxpayers moved this Court to allow them to withdraw their petition without prejudice in a deficiency proceeding, presumably so that they could refile their lawsuit in District Court and present the issues to a jury. We held that, in the light of I.R.C. § 7459(d), a taxpayer who petitions the Court under I.R.C. § 6213 for redetermination of a deficiency may not withdraw his petition in order to avoid the entry of a decision. Estate of Ming, 62 T.C. at 522-23. Accordingly, we denied the taxpayers' motion to withdraw their petition without prejudice.
In the instant deficiency case, it would be helpful for the Court to hear from petitioner regarding the aforementioned two issues that have not been addressed in her motion. Upon due consideration, it is hereby
ORDERED that petitioner shall, on or before July 5, 2022, file a supplement to her Motion for Voluntary Dismissal Without Prejudice, filed June 1, 2022, addressing (1) the import of Estate of Ming on this case and (2) the timeliness of her petition and how it affects the Court's jurisdiction over this case. It is further
ORDERED that respondent may, on or before August 4, 2022, file a reply to petitioner's supplemental filing. It is further
ORDERED that this case is stricken for trial from the June 13, 2022, Tampa, Florida Trial Session of the Court. It is further
ORDERED that jurisdiction of this case is retained by this Division of the Court. It is further
ORDERED that respondent's Motion to Dismiss for Lack of Jurisdiction, filed May 13, 2022, is taken under advisement.