Werner

This suit seeks to recover an overpayment of taxes which was applied by the Internal Revenue Service in payment of assessments made against plaintiff Arnold J. Werner arising from failure of a corporation, of which Mr. Werner is an officer, to pay Federal employment taxes withheld from its employees. Prior to commencement of this suit, the United States filed suit against plaintiffs in the United States District Court for the Eastern District of Wisconsin for the collection of the alleged outstanding liability on the assessment. This case comes before the court on defendant’s motion for summary judgment. Upon consideration thereof, together with the opposition thereto, without oral argument, the court concludes that plaintiffs’ claim in this court is barred on the ground of comity, jurisdiction of the issues between the parties having been first established in the said United States district court action (See Tecon Engineers, Inc. v. United States, 170 Ct. Cl. 389, 343 F. 2d *1016943 (1965), cert. denied, 382 U.S. 976 (1966)). On October 27, 1972, by order, the court granted defendant’s motion and dismissed plaintiffs’ petition without prejudice.