Free Motion to Dismiss - Rule 41(a) - District Court of Federal Claims - federal

Case 1:05-cv-01028-MBH

Document 45

Filed 09/12/2006

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS

ESTATE OF RANKIN M. SMITH, SR., SUNTRUST BANK, TAYLOR W. SMITH, and RANKIN M. SMITH, JR., Co-Executors,

) ) ) ) ) Plaintiff, ) ) v. ) ) UNITED STATES OF AMERICA, ) ) Defendant. ) ____________________________________)

Case No. 05-1028 T Judge Marian Blank Horn

PLAINTIFF'S MOTION TO DISMISS ITS COMPLAINT WITHOUT PREJUDICE Plaintiff, the Estate of Rankin M. Smith, Sr. (the "Estate"), by and through undersigned counsel, hereby moves the Court pursuant to CFCR 41(a)(2) to dismiss its complaint without prejudice for good cause set forth below. 1. In the current refund suit, the government has taken the position that, in order for the Court to have jurisdiction over the claims for refund at issue, the Estate must dismiss its refund suit, pay the balance shown on the Internal Revenue Service ("IRS") transcript of account for the Estate (the "Transcript"), currently $4,276,648.61, and then refile its suit. The Estate believes that the balance shown on the Transcript is the result of the IRS failing to allow the mandatory credit for additional state death taxes paid by the Estate as a result of the IRS's increase to the taxable estate in its Notice of Deficiency and the deductions for interest payments made by the Estate pursuant to its election under section 6166 of the Internal Revenue Code (the "Code"). 2. On September 6, 2006, the Estate filed Plaintiff's Report to the Court (Docket. #43) in which the Estate addressed recent developments in discussions among the Estate's counsel,

Case 1:05-cv-01028-MBH

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Filed 09/12/2006

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government counsel, and the IRS regarding this jurisdictional issue. As detailed in Plaintiff's Report, the government has identified an IRS administrative procedure by which the IRS, upon dismissal of the complaint, will reconsider the amount of the state death tax credit due to the Estate for additional state death taxes paid as a result of the IRS's increase to the taxable estate in its Notice of Deficiency and the deductions for interest payments made by the Estate pursuant to its election under section 6166 of the Code. 3. In order to obtain reconsideration of these issues through the administrative procedure identified by the IRS, and based on the understandings and representations set forth in Plaintiff's Report, the Estate has agreed to dismiss its complaint without prejudice. As further set forth in Plaintiff's Report, it is contemplated that the Estate will refile its refund suit following reconsideration of these issues by the IRS. 4. Defendant, in its Status Reports filed herein on September 5, 2006, stated that "[t]he Estate should voluntarily dismiss its suit." See also, Defendant's Status Report, filed herein on August 29, 2006. 5. The Court previously stated that, if the Estate dismissed its complaint without prejudice, the Court would waive the case filing fee for the refiling of the Estate's refund suit, and, upon refiling, the case would be returned to Judge Marian Blank Horn for further proceedings.

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Case 1:05-cv-01028-MBH

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WHEREFORE the Estate prays that this Court enter an Order dismissing the Estate's complaint without prejudice, directing the Clerk to waive the filing fee for the Estate to refile its case, and directing assignment of such refiled case to Judge Horn.

Respectfully submitted,

s/ Judith Mather Judith A. Mather (Attorney of Record) Tel: (202) 776-2714 Fax: (202) 776-4714 Email: [email protected] DOW LOHNES PLLC 1200 New Hampshire Ave., N.W., Ste. 800 Washington, D.C. 20036 Alex. L. Bertoldo (Of Counsel) Tel: (202) 776-2045 Fax: (202) 776-4045 Email: [email protected] DOW LOHNES PLLC 1200 New Hampshire Ave., N.W., Ste. 800 Washington, D.C. 20036 COUNSEL FOR THE PLAINTIFF

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Case 1:05-cv-01028-MBH

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CERTIFICATE OF SERVICE I hereby certify that I have caused a copy of the foregoing Plaintiff's Motion to Dismiss Its Complaint Without Prejudice to be filed with the ECF System of the United States Court of Federal Claims this 12th day of September 2006, with Notice of Electronic Filing to be made on all case participants who are ECF filing users in compliance with the service requirements of RCFC 5 and the proof of service requirements of RCFC 5.1, as provided in United States Court of Federal Claims General Order No. 42A. I am not aware of any case participants who are not ECF filing users of this Court. s/ Judith Mather Judith A. Mather (Attorney of Record) Tel: (202) 776-2714 Fax: (202) 776-4714 Email: [email protected] DOW LOHNES PLLC 1200 New Hampshire Ave., N.W., Ste. 800 Washington, D.C. 20036

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