Sanford , 199 Ct. Cl. 1009 ( 1972 )

Plaintiff seeks damages suffered as the result of alleged wrongdoing by the Internal Revenue Service, i.e. an unlawful adjustment by the Commissioner of Internal Revenue to plaintiff’s 1968 tax liability and violation of plaintiff’s Fifth Amendment rights by deducting the adjustment from plaintiff’s 1971 income tax refund; in his motion for summary judgment plaintiff also seeks recovery of his alleged overpaid 1968 tax. On February 9, 1972 plaintiff petitioned the United States Tax Court for redetermination of his tax deficiencies for 1968 and 1969. This case comes before the court on defendant’s motion to dismiss the petition, plaintiff’s motion for summary judgment and plaintiff’s motion for leave to file motion to remove the case without prejudice to the United States District Court in Camden, New Jersey. Upon consideration thereof, together with responses in opposition thereto, without oral argument, pursuant to the provisions of section 6512 of the Internal Revenue Code of 1954 and 28 U.S.C. § 1500, the court concludes that this court lacks jurisdiction to determine plaintiff’s claims and that on the basis of the decisions in Broadway Open Air Theatre v. United States, 208 F. 2d 257 (C.A. 4, 1953), and United States v. Banner, 226 F. Supp. 904 (N.D.N.Y., 1963), this case should not be transferred to the United States District Court. On October 20, 1972, by order, the court denied plaintiff’s motion to transfer, granted defendant’s motion to dismiss, and dismissed the petition.