   LANA JOAN DAVIDSON, PETITIONER v. COMMISSIONER                     OF
            INTERNAL REVENUE, RESPONDENT
          Docket No. 10606–13.                Filed April 2, 2015.

         P petitioned the Court under I.R.C. sec. 6015(e)(1) to review
      R’s final determination denying P relief from joint liability
      under I.R.C. sec. 6015. This type of action is known as a
      ‘‘stand alone’’ case because the only issue is whether the tax-
      payer is entitled to relief from joint liability. P now moves the
      Court to allow her to withdraw the petition and to dismiss the
      case. Held: The Court has discretion to allow P to withdraw
      the petition because the petition did not invoke the Court’s
      jurisdiction to redetermine a deficiency or otherwise implicate
      a provision such as I.R.C. sec. 7459(d) that requires the Court
      to enter a decision upon the dismissal of a case. Wagner v.
      Commissioner, 118 T.C. 330 (2002), followed. Vetrano v.
      Commissioner, 116 T.C. 272 (2001), is distinguished because
      the petition in that case invoked the Court’s jurisdiction
      under I.R.C. sec. 6213 to redetermine a deficiency and
      required that the Court enter a decision. Held, further, the
      Court will order the petition withdrawn and the case dis-
      missed.

  Lana Joan Davidson, pro se.
  Bradley C. Plovan, for respondent.

                                 OPINION

   RUWE, Judge: The petition in this case was filed in
response to a final determination denying petitioner relief
from joint and several liability under section 6015 1 (section
6015 relief ). Petitioner submitted to the Internal Revenue
Service (IRS) a Form 8857, Request for Innocent Spouse
Relief, seeking relief from joint and several income tax liabil-
ities for 2007 and 2008 pursuant to section 6015. On Feb-
ruary 22, 2013, the IRS issued a final determination denying
petitioner’s request for section 6015 relief. Petitioner timely
filed a petition in this Court in response to the final deter-
mination. At the time the petition was filed, petitioner
resided in Maryland.
   Section 6015(e) allows a spouse who has requested relief to
petition the Commissioner’s denial of relief. Such cases are
  1 Unless otherwise indicated, all section references are to the Internal

Revenue Code in effect at all relevant times, and all Rule references are
to the Tax Court Rules of Practice and Procedure.

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274          144 UNITED STATES TAX COURT REPORTS                      (273)


referred to as ‘‘stand alone’’ cases, in that they are inde-
pendent of any deficiency proceeding. Fernandez v. Commis-
sioner, 114 T.C. 324, 329 (2000).
  On January 22, 2015, after respondent had filed his
answer, petitioner filed a motion to dismiss, requesting that
she be permitted to voluntarily withdraw her petition.
Respondent does not object to the motion. Because a question
has arisen as to our authority to dismiss without entering a
decision, we must decide whether to grant petitioner’s
motion.
  Historically, most cases coming before this Court have
involved petitions to redetermine ‘‘deficiencies’’ pursuant to
section 6213. Generally, a deficiency occurs when the correct
tax liability exceeds that reported on the taxpayer’s return.
See sec. 6211(a). When our jurisdiction to redetermine a defi-
ciency is invoked section 7459(d) provides:
     SEC. 7459(d). EFFECT OF DECISION DISMISSING PETITION.—If a peti-
  tion for a redetermination of a deficiency has been filed by the taxpayer,
  a decision of the Tax Court dismissing the proceeding shall be considered
  as its decision that the deficiency is the amount determined by the Sec-
  retary. An order specifying such amount shall be entered in the records
  of the Tax Court unless the Tax Court cannot determine such amount
  from the record in the proceeding, or unless the dismissal is for lack of
  jurisdiction.

It follows that in deficiency cases brought pursuant to section
6213 a taxpayer may not withdraw a petition in order to
avoid a decision. Estate of Ming v. Commissioner, 62 T.C. 519
(1974).
   Over the years Congress has expanded our jurisdiction
over controversies that do not require us to redetermine defi-
ciencies. One such area involves our jurisdiction to review
the propriety of collection actions pursuant to sections 6330
and 6320. In Wagner v. Commissioner, 118 T.C. 330 (2002),
we distinguished Estate of Ming and held that the taxpayers
could withdraw their petition to challenge the propriety of a
lien filed by the IRS because there was no deficiency involved
and therefore section 7459(d) had no application. Because
there was no Tax Court Rule that controlled, we looked to
the Federal Rules of Civil Procedure (FRCP) for guidance. 2
   2 Our Rule 53 provides that a ‘‘case may be dismissed for cause upon mo-

tion of a party or upon the Court’s initiative.’’ However, there is no Tax
(273)                 DAVIDSON v. COMMISSIONER                           275


See Rule 1(b), (d); Wagner v. Commissioner, 118 T.C. at 332–
333.
   FRCP 41(a) sets forth rules for the voluntary dismissal of
a civil ‘‘action’’. 3 FRCP 41 allows a plaintiff to dismiss a civil
action without a court order where the plaintiff files: (1) a
notice of dismissal before the opposing party serves either an
answer or a motion for summary judgment or (2) a stipula-
tion of dismissal signed by all parties who have appeared.
See Fed. R. Civ. P. 41(a)(1)(A). In all other instances, the rule
allows a plaintiff to voluntarily dismiss a civil action only
through a court order, which in turn may contain terms that
the court considers proper for granting the voluntary dis-
Court Rule that specifically addresses a petitioner’s request to dismiss by
voluntarily withdrawing a petition. Rule 123(b) provides, in pertinent part:
‘‘For failure of a petitioner properly to prosecute or to comply with these
Rules or any order of the Court or for other cause which the Court deems
sufficient, the Court may dismiss a case at any time and enter a decision
against the petitioner.’’ Rule 123(d) requires that a decision entered pursu-
ant to a dismissal on a ground other than lack of jurisdiction operates as
an adjudication on the merits of the taxpayer’s case.
   3 Fed. R. Civ. P. 41(a) provides in relevant part:

  (a) Voluntary Dismissal.
  (1) By the Plaintiff.
  (A) Without a Court Order. * * * the plaintiff may dismiss an action
  without a court order by filing:
  (i) a notice of dismissal before the opposing party serves either an an-
  swer or a motion for summary judgment; or
  (ii) a stipulation of dismissal signed by all parties who have appeared.
  (B) Effect. Unless the notice or stipulation states otherwise, the dis-
  missal is without prejudice. But if the plaintiff previously dismissed any
  federal- or state-court action based on or including the same claim, a no-
  tice of dismissal operates as an adjudication on the merits.
  (2) By Court Order; Effect. Except as provided in Rule 41(a)(1), an action
  may be dismissed at the plaintiff ’s request only by court order, on terms
  that the court considers proper. * * * Unless the order states otherwise,
  a dismissal under this paragraph (2) is without prejudice.

See Black’s Law Dictionary 537 (9th ed. 2009) (defining the term ‘‘dis-
missed without prejudice’’ in the context of a case to mean that the case
is ‘‘removed from the court’s docket in such a way that the plaintiff may
refile the same suit on the same claim’’); see also id. (defining the term
‘‘dismissal without prejudice’’ to mean ‘‘A dismissal that does not bar the
plaintiff from refiling the lawsuit within the applicable limitations pe-
riod’’).
276        144 UNITED STATES TAX COURT REPORTS            (273)


missal. See Fed. R. Civ. P. 41(a)(2). Dismissal of an action
pursuant to FRCP 41(a)(2) is at the court’s discretion. See
GO Computer, Inc. v. Microsoft Corp., 508 F.3d 170, 177 (4th
Cir. 2007); Hargis v. Foster, 312 F.3d 404, 412 (9th Cir.
2002); see also Cone v. W. Va. Pulp & Paper Co., 330 U.S.
212, 217 (1947). Unless a court orders otherwise, the
granting of a motion to dismiss pursuant to FRCP 41(a)(2) is
without prejudice. Settles v. Commissioner, 138 T.C. 372, 375
(2012). A dismissal without prejudice under FRCP 41(a)(2) is
generally treated as if the lawsuit had never been filed. See
Humphreys v. United States, 272 F.2d 411, 412 (9th Cir.
1959); Wagner v. Commissioner, 118 T.C. at 333–334 (and
cases cited thereat); see also Dove v. CODESCO, 569 F.2d
807, 809 n.3 (4th Cir. 1978).
   In deciding whether to grant a motion to dismiss under
FRCP 41(a)(2), a court must exercise its broad equitable
discretion to ‘‘weigh the relevant equities and do justice
between the parties in each case’’. McCants v. Ford Motor
Co., 781 F.2d 855, 857 (11th Cir. 1986); see also Wagner v.
Commissioner, 118 T.C. at 333. ‘‘The crucial question to be
determined is, [w]ould the defendant lose any substantial
right by the dismissal.’’ Durham v. Fla. E. Coast Ry. Co., 385
F.2d 366, 368 (5th Cir. 1967).
   In Vetrano v. Commissioner, 116 T.C. 272, 280 (2001), we
held that the Court had no authority to grant the taxpayer’s
request for leave to withdraw her election under section 6015
‘‘without prejudice’’. However, we think that Vetrano is
distinguishable from the instant case.
   The taxpayer in Vetrano invoked the Court’s jurisdiction to
review her claim for section 6015 relief by raising that
matter as an affirmative defense in a case based on a peti-
tion for redetermination of a deficiency timely filed under
section 6213. That is one of three ways in which the Court
may acquire jurisdiction to review a claim for section 6015
relief. See Van Arsdalen v. Commissioner, 123 T.C. 135, 137–
138 (2004). A second way is where a taxpayer timely
requests section 6015 relief in a petition for review of a lien
or levy action. See id. The third way is where a taxpayer
timely files a ‘‘stand alone’’ petition requesting section 6015
relief and invokes the Court’s jurisdiction under section
6015(e)(1). See id. In this third instance, the Commissioner
must have issued a final determination denying the tax-
(273)                 DAVIDSON v. COMMISSIONER                               277


payer’s claim for section 6015 relief or have failed to rule on
the taxpayer’s claim within six months of its filing. See sec.
6015(e)(1)(A)(i). A stand alone petition must be filed no later
than the close of the 90th day after the Commissioner issued
a final determination. See sec. 6015(e)(1)(A)(ii). In contrast
with the petition filed in Vetrano, the petition filed in the
instant case was a stand alone petition that invoked the
Court’s jurisdiction only under section 6015(e)(1). 4
   In Vetrano there was a trial after which the Court decided
that the taxpayer and her husband were liable for the defi-
ciency and for the fraud penalty but reserved judgment on
whether the taxpayer was entitled to any of her requested
relief from joint liability. See Vetrano v. Commissioner, 116
T.C. at 273–274. The Court ordered the parties to advise the
Court whether any further action was required to decide that
issue. See id. at 275. The taxpayer responded to the order by
asking for permission to withdraw her request for section
6015 relief without prejudice. See id. at 275–276. The Court
concluded that it could not grant the request because
granting the motion would improperly disregard a congres-
sional mandate set forth in section 6015(g)(2). See id. at 280.
Section 6015(g)(2) generally provides that, with a single
exception, a court’s final decision as to a taxable year is
conclusive with respect to an individual’s later claim for sec-
tion 6015 relief. The exception is that the final decision fails
to be conclusive as to the later claim for relief to the extent
that the later claim for relief was not an issue in the prior
proceeding unless the individual participated meaningfully in
the prior proceeding. 5 Accord Harbin v. Commissioner, 137
T.C. 93, 97–98 (2011).
  4 While a dismissal without prejudice in the context of Fed. R. Civ. P.

41(a) applies to a dismissal of an entire case, Vetrano was a deficiency case
in which the taxpayer also claimed sec. 6015 relief and sought dismissal
only for her claims under sec. 6015 in order to preserve her right to elect
relief under sec. 6015(b) or (c) at a later time.
  5 Sec. 6015(g)(2) provides:

     (2) RES JUDICATA.—In the case of any election under subsection (b) or
  (c) or of any request for equitable relief under subsection (f ), if a decision
  of a court in any prior proceeding for the same taxable year has become
  final, such decision shall become conclusive except with respect to the
  qualification of the individual for relief which was not an issue in such
  proceeding. The exception contained in the preceding sentence shall not
                                                  Continued
278           144 UNITED STATES TAX COURT REPORTS                       (273)


   The Court’s holding in Vetrano does not apply here. The
Vetrano taxpayers’ invocation of the Court’s jurisdiction to
redetermine a deficiency is significantly different from peti-
tioner’s invocation of the Court’s jurisdiction under section
6015(e)(1) in a stand alone petition where the only issue is
whether the taxpayer is entitled to relief from a tax liability
otherwise owed. Because the petition in Vetrano invoked our
jurisdiction to redetermine a deficiency, section 7459(d)
required that we enter a decision as to the deficiency. Pursu-
ant to section 6015(g)(2), the decision as to the deficiency
would have been conclusive of a section 6015 claim made in
a future lawsuit. Thus, we had no authority in Vetrano to
order that the taxpayer could withdraw her claim for section
6015 relief without prejudice.
   Here, by contrast, petitioner did not file a petition to
redetermine a deficiency. Petitioner invoked the Court’s
jurisdiction under section 6015(e)(1) to review respondent’s
final determination denying her section 6015 relief. That was
the only issue in this ‘‘stand alone’’ section 6015 case. Con-
gress has not required the Court to enter a decision upon the
dismissal of a case such as this. Dismissal of this case
through withdrawal of the petition has the same result as if
the case was never brought. See Humphreys v. United States,
272 F.2d at 412; Wagner v. Commissioner, 118 T.C. at 333–
334; see also Dove v. CODESCO, 569 F.2d at 809 n.3. This
also means that section 6015(g)(2) will not apply in any later
case that petitioner may commence as to section 6015 relief.
Section 6015(g)(2) is operative only if there is a ‘‘prior pro-
ceeding’’. Dismissal of this case pursuant to the principles of
FRCP 41(a)(2) will serve to treat this case as never having
been a ‘‘proceeding’’. 6
  apply if the court determines that the individual participated meaning-
  fully in such prior proceeding.
  6 We note, however, that it appears petitioner will be precluded from fur-

ther challenging in this Court her entitlement to sec. 6015 relief for 2007
and 2008. In this vein, it appears that petitioner would be outside of the
90-day window for filing another stand alone petition challenging the final
determination. See sec. 6015(e)(1)(A). It also appears that petitioner will be
precluded from requesting any such relief as part of a lien or levy pro-
ceeding. See sec. 301.6320–1(e)(2), Proced. & Admin. Regs. (‘‘A taxpayer
may raise any appropriate spousal defenses at a CDP hearing unless the
Commissioner has already made a final determination as to spousal de-
fenses in a statutory notice of deficiency or final determination letter.’’).
(273)            DAVIDSON v. COMMISSIONER                 279


  We hold that we have authority to dismiss a ‘‘stand alone’’
section 6015 case and, in the absence of any objection by
respondent, we consider it appropriate to allow petitioner to
withdraw her petition pursuant to the principles found in
FRCP 41(a)(2). Accordingly, in the exercise of the Court’s
discretion we will grant petitioner’s motion to allow her to
withdraw her stand alone petition and we will dismiss the
case.
  In accordance with the foregoing,
                  An appropriate order of dismissal will be
                entered granting petitioner’s motion to dis-
                miss.

                       f
