T.C. Memo. 2009-73



                       UNITED STATES TAX COURT



                STEVEN J. STANWYCK, Petitioner,
                AND JOAN STANWYCK, Intervenor v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 533-07L.               Filed March 31, 2009.



     Steven J. Stanwyck, pro se.

     John O. Kent, for intervenor.

     Michael W. Tan, for respondent.



                         MEMORANDUM OPINION


     VASQUEZ, Judge:    Petitioner seeks review of respondent’s

denial of section 60151 relief and review of respondent’s


     1
        Unless otherwise indicated, all section references are to
the Internal Revenue Code, and all Rule references are to the Tax
                                                   (continued...)
                               - 2 -

rejection of other claims petitioner raised with respect to a

notice of intent to levy and a notice of the filing of a lien.

At the time he filed his petition, petitioner resided in

California.

     Joan Stanwyck (intervenor) intervened on April 12, 2007,

after receiving a notice of filing of petition and right to

intervene from respondent filed February 27, 2007.   Petitioner

and intervenor were married and filed joint income tax returns

for 1991, 1997, and 1998; petitioner requested section 6015

relief from joint and several liability for those years.

Petitioner and intervenor are now divorced.

     On October 12, 2007, petitioner filed a petition pursuant to

chapter 11 of the U.S. Bankruptcy Code in the U.S. Bankruptcy

Court for the Central District of California.   Pursuant to 11

U.S.C. section 362(a)(8) (2006), this proceeding has been stayed

as to petitioner.   In the Court’s order to show cause dated

October 29, 2007, we directed the parties to show why the

proceedings should not be stayed as to intervenor.

     Both intervenor and respondent argue that there is only one

proceeding before this Court, the proceeding of petitioner.

Further, intervenor is allowed by statute to intervene in this

proceeding.   Because this proceeding is stayed, intervenor’s



     1
      (...continued)
Court Rules of Practice and Procedure.
                                 - 3 -

rights to intervene are stayed.    On the other hand, petitioner

argues that a bankruptcy stay “applies to a person and not to an

entire proceeding.”

                              OPINION

I.   Section 6015 Relief and Intervention by NonRequesting Spouse

      Spouses who file joint returns are jointly and severally

liable for the entire tax liability, which may be collected from

either spouse.   See sec. 6013(d)(3).    However, section 6015

provides that, notwithstanding section 6013(d)(3), a joint filer

may elect to seek relief from joint and several tax liability.

      Congress vested this Court with jurisdiction to review a

taxpayer’s claim for relief from joint and several liability

under specified circumstances.     Maier v. Commissioner, 

, 270 (2002), affd. 

(2d. Cir. 2004); see also

King v. Commissioner, 

, 121-122 (2000); Corson v.

Commissioner, 

, 363-364 (2000).     Claims for spousal

relief can be raised in several different types of proceedings

including petitions filed under section 6015(e), 6320, 6330, or

6213.   Drake v. Commissioner, 

(2004); King v.

Commissioner, supra at 121-122.

      Petitioner requested such relief after receiving a Final

Notice--Notice of Intent to Levy and Notice of Your Right to a

Hearing and Notice of Federal Tax Lien Filing and Your Right to a

Hearing.   Petitioner was denied relief pursuant to section 6015
                                - 4 -

on December 8, 2006, and petitioned this Court on January 5,

2007.

     For cases involving requests for spousal relief, section

6015(e)(4)2 directs this Court to establish rules to provide

notice to the nonrequesting spouse and an opportunity to become a

party to the proceeding.    Pursuant to Rule 325 and King,

intervenor was notified of petitioner’s petition seeking relief

from joint and several liability and of her right to intervene in

petitioner’s case.    By intervening, intervenor became a party.

See Tipton v. Commissioner, 

, 217 (2006).       An

intervening party is not granted rights or immunities superior to

those of the other parties, may not enlarge the issues or alter

the nature of the proceeding, and must abide by the Court’s

Rules.

issues petitioner raised

including whether petitioner is entitled to relief from his joint

tax liability.    Intervenor’s liability is not at issue.    See

Kovitch v. Commissioner, 

, 111 (2007).




     2
         Sec. 6015(e)(4) provides as follows:

     SEC. 6015(e).   Petition for Review by Tax Court.--

          (4) Notice to other spouse.–-The Tax Court shall
     establish rules which provide the individual filing a joint
     return but not making the election under subsection (b) or
     (c) or the request for equitable relief under subsection (f)
     with adequate notice and an opportunity to become a party to
     a proceeding under either subsection.
                                - 5 -

II.   The Automatic Stay in Bankruptcy Cases

      A bankruptcy filing generally triggers an automatic stay of

Tax Court proceedings concerning the debtor.    Id.3       At the time

petitioner filed for bankruptcy (October 12, 2007), 11 U.S.C.

section 362(a) provided in relevant part:

      § 362.   Automatic stay

           (a) Except as provided in subsection (b) of this
      section, a petition filed under section 301, 302, or
      303 of this title, or an application filed under
      section 5(a)(3) of the Securities Investor Protection
      Act of 1970, operates as a stay, applicable to all
      entities, of--

           *        *       *      *        *          *         *

           (8) the commencement or continuation of a
      proceeding before the United States Tax Court
      concerning a corporate debtor’s tax liability for a
      taxable period the bankruptcy court may determine or
      concerning the tax liability of a debtor who is an
      individual for a taxable period ending before the date
      of the order for relief under this title.

The automatic stay generally operates to temporarily bar actions

against or concerning the debtor or bankruptcy estate.



      3
        As applicable in Kovitch v. Commissioner, 

(2007), 11 U.S.C. sec. 362(a)(8) read: “(8) the commencement or
continuation of a proceeding before the United States Tax Court
concerning the debtor.” The Bankruptcy Abuse Prevention and
Consumer Protection Act of 2005, Pub. L. 109-8, sec. 709, 119
Stat. 127, amended 11 U.S.C. sec. 362(a)(8) to its current
version, effective in cases commenced on or after Oct. 17, 2005

Stat. 216. The amended version removed the
phrase “the debtor” and replaced it with the phrase “a corporate
debtor’s tax liability for a taxable period the bankruptcy court
may determine or concerning the tax liability of a debtor who is
an individual for a taxable period ending before the date of the
order for relief under this title”.
                                - 6 -

Allison v. Commissioner, 

, 545 (1991).     In a chapter

11 bankruptcy an automatic stay is generally lifted at the

earliest of the closing of the case, the dismissal of the case,

or the grant or denial of a discharge.   11 U.S.C. sec. 362(c)(2).

     This Court has jurisdiction to determine whether the

automatic stay under 11 U.S.C. section 362(a)(8) prevents us from

proceeding.   See Moody v. Commissioner, 

, 658 (1990).

This Court has previously construed the phrase “concerning the

debtor” that appeared in the prior version of 11 U.S.C. section

362(a)(8).4   We have not yet construed the phrase “concerning the

tax liability of a debtor who is an individual” that appears in

the current version of 11 U.S.C. section 362(a)(8).    However the

current version of 11 U.S.C. section 362(a)(8) and the prior

version construed in Kovitch are very similar insofar as relevant

here.    Both focus on the tax liability of the debtor in

bankruptcy.    Our prior cases construing the previous version of


     4
        In Kovitch v. Commissioner, supra at 112, we stated as
follows:

          We have construed the phrase ‘concerning the debtor’ in
     11 U.S.C. section 362(a)(8) narrowly to mean that the
     automatic stay should not apply unless the Tax Court
     proceeding possibly would affect the tax liability of the
     debtor in bankruptcy. People Place Auto Hand Carwash, LLC
     v. Commissioner, 

, 363 (2006); 1983 W. Reserve
     Oil & Gas Co. v. Commissioner, 

(1990), affd.
     without published opinion 

(9th Cir. 1993).
     Thus, we must decide whether the current proceeding
     involving petitioner’s request for section 6015 spousal
     relief affects Mr. Kovitch’s tax liability for purposes of
     applying the automatic stay. [Fn. ref. omitted.]
                                - 7 -

11 U.S.C. section 362(a)(8) are relevant to our determination in

this case.    In Kovitch we had to decide whether the taxpayer’s

case involving her request for section 6015 relief affected the

tax liability of her ex-husband who had filed a notice of

intervention and shortly thereafter filed for bankruptcy.   Here,

rather than intervenor being a debtor in bankruptcy, petitioner

is a debtor in bankruptcy.   Petitioner’s tax liability is in

issue.

     The plain language of section 6015(e)(4) supports

respondent’s and intervenor’s argument that there is only one

proceeding.   See

become a party to a

proceeding under either such subsection.”).   A new proceeding is

not created when there is an intervention; rather, the intervenor

simply becomes a party to the existing proceeding.

be relieved of liability for the

tax liabilities at issue and whether petitioner’s other claims

have merit are the concerns of this proceeding.   Intervenor seeks

to participate in the proceeding and offer information related to

whether petitioner should be awarded relief pursuant to section

6015.

     The automatic stay of 11 U.S.C. section 362(a)(8) must stay

this proceeding also as to intervenor.   As we stated in Tipton v.

:    “The intervening party is
                                 - 8 -

not granted rights or immunities superior to those of the other

parties”.

     Accordingly, the automatic stay of 11 U.S.C. section

362(a)(8) applies to intervenor.

     To reflect the foregoing,


                                              An appropriate order will

                                         be issued.