Petitioners John W. Roberts ("Roberts") and Cheryl W. Roberts appeal from a decision of the United States Tax Court finding them liable for certain deficiencies in and additions to tax as determined by the Commissioner. The Commissioner has filed a motion to dismiss this appeal for lack of jurisdiction on the ground that the petitioners' notice of appeal was untimely. We hold that sections 362(a)(1), 362(a)(8), and 108 of the Bankruptcy Code neither stayed nor sufficiently extended the petitioners' time to appeal the Tax Court's decision. Accordingly, we find that their notice of appeal was untimely and grant the Commissioner's motion.

This case stems from an Internal Revenue Service ("IRS") investigation into the petitioners' individual and business finances for the tax years 1979-1984. In part, the business aspect of the investigation concerned two corporations: Alcovy Wood Products, Inc. ("AWP"), of which Roberts was president and a 50 percent shareholder, and Alcovy Properties, Inc. ("API"), which was wholly owned by Roberts. One result of the investigation was a twelve-count indictment against Roberts for the crimes of attempted tax evasion and willfully filing false tax returns. See 26 U.S.C. §§ 7201, 7206(1) (1994). Roberts pled guilty to one count of each crime in January 1989.

A second result was the Commissioner's issuance of notices of deficiency to AWP, API, and the petitioners in August 1990. In the petitioners' notice, which pertained to their joint tax returns for the years 1979-1984, the Commissioner determined that they were liable for deficiencies and for accuracy-related additions to tax under 26 U.S.C. § 6661; a substantial portion of this liability was attributable to Roberts' unauthorized use of AWP funds for his personal benefit. This notice also stated that Roberts was liable for fraud penalties under 26 U.S.C. § 6653(b)(1) for the years 1982-84.1 AWP, API, and the petitioners each filed a timely petition with the Tax Court on October 29, 1990, requesting a redetermination of the deficiencies and penalties. See 26 U.S.C. § 6213 (1994). The cases were consolidated for trial.

The Tax Court entered decisions for the Commissioner in the three consolidated cases on March 23, 1993. See Roberts v. Commissioner, 65 T.C.M. (CCH) 2121 (1993). Unbeknownst to the court and the Commissioner, however, the petitioners had filed a voluntary petition for relief under Chapter 11 of the Bankruptcy Code (11 U.S.C.) on March 1, 1993. The Commissioner did not discover the existence of the bankruptcy petition until July 13, 1993. On July 15, the Commissioner filed a motion under Tax Court Rule 162 to vacate the Tax Court's decision in the petitioners' case on the ground that it had been entered in violation of the automatic stay provision of the Bankruptcy Code. See 11 U.S.C. § 362(a)(8) (1994). On July 19, the court vacated its decision and noted that further proceedings in the case automatically were stayed. The Commissioner then sought and received an order from the Bankruptcy Court that lifted the automatic stay. This order, entered on September 29, 1993, lifted the stay "for the limited purpose of proceeding with the case filed by the debtors in the Tax Court, [and modified the stay] to permit the assessment, but not collection, of any liability determined by the Tax Court." After receiving notice of this order from the Commissioner, the Tax Court reentered its decision on October 27, 1993.

The Bankruptcy Court dismissed the petitioners' bankruptcy petition on November 10, 1993, but they filed another Chapter 11 petition on December 30, 1993. On March 7, 1994, AWP, API, and the petitioners filed notices of appeal to this court from the decisions of the Tax Court. In an unpublished opinion filed on December 28, 1995, a panel of this court dismissed those appeals. See Roberts v. Commissioner, No. 94-8283 (11th Cir. Dec. 28, 1995) (per curiam). With regard to the petitioners' appeal,2 the panel stated:

Under the [Commissioner's] characterization of this case, we lack jurisdiction because the notice of appeal was not timely filed. Under [the Robertses'] characterization of the case, we lack jurisdiction because the notice of appeal was ineffective due to the automatic stay related to bankruptcy. We agree that it is clear that, at this time, we lack jurisdiction; thus, we dismiss this appeal. We specifically decline to decide whether a notice of appeal filed after the automatic stay is lifted would be timely filed for the parties in bankruptcy.

In an effort to remedy this lack of jurisdiction, the petitioners filed a motion in the Bankruptcy Court to lift the automatic stay. The court granted their motion on April 22, 1996. The court's order stated: "to the extent that the automatic stay provisions of 11 U.S.C. § 362 apply to the Debtors pursuing an appeal of a final decision from the United States Tax Court, said stay is lifted." On May 3, 1996, the petitioners filed a second notice of appeal to this court from the decision of the Tax Court in their case. It is this notice of appeal that is presently before us.

In considering the Commissioner's motion to dismiss the petitioners' appeal for lack of jurisdiction, we begin with the proposition that courts of appeals have exclusive jurisdiction to review decisions of the Tax Court pursuant to section 7482 of the Internal Revenue Code (26 U.S.C.). In order to obtain appellate review, however, a party to a decision of the Tax Court must file "a notice of appeal with the clerk of the Tax Court within 90 days after the decision of the Tax Court is entered." 26 U.S.C. § 7483 (1994). With certain exceptions not relevant here, the decision of the Tax Court becomes final if no notice of appeal is filed within this 90-day period.3 See 26 U.S.C. § 7481(a)(1) (1994). In this case, the Tax Court reentered its decision on October 27, 1993, and the petitioners filed the present notice of appeal on May 3, 1996. Unless the 90-day period for filing a notice of appeal was either stayed or sufficiently extended, therefore, the petitioners' appeal was untimely and we must dismiss it for lack of jurisdiction. The Commissioner contends that sections 362(a)(1), 362(a)(8), and 108 of the Bankruptcy Code neither stayed nor sufficiently extended the 90-day period in order to render the petitioners' appeal timely. We agree.

Section 362(a)(1) of the Bankruptcy Code provides, in pertinent part, that the filing of a bankruptcy petition "operates as a stay, applicable to all entities, of ... the commencement or continuation ... of a judicial, administrative, or other action or proceeding [i] against the debtor ..., or [ii] to recover a claim against the debtor...." 11 U.S.C. § 362(a)(1) (1994). The petitioners, relying on the Ninth Circuit's opinion in Delpit v. Commissioner, 18 F.3d 768 (9th Cir.1994), contend that both the Tax Court's consideration of their petition for redetermination and their appeal from the Tax Court's decision were merely continuations of the administrative income tax assessment proceedings that the Commissioner had commenced against them. As a result, they argue, the filing of their December 1993 bankruptcy petition operated to stay the continuation of these administrative proceedings--i.e., to stay the running of the 90-day period for filing a notice of appeal from the Tax Court's decision--pursuant to both clauses of section 362(a)(1). The Commissioner, relying in part on Freeman v. Commissioner, 799 F.2d 1091 (5th Cir.1986), contends that section 362(a)(1) did not apply because the petitioners commenced a judicial proceeding against him when they filed their petition for redetermination in the Tax Court--a court that had no jurisdiction to assist him in recovering any claim against the petitioners. In evaluating these contentions, we consider each clause of section 362(a)(1) separately.

The answer to the question of whether a proceeding before the Tax Court (as well as any appeal therefrom) constitutes a proceeding "against the debtor" under the first clause of section 362(a)(1) largely depends on whether the filing of a petition for redetermination with the Tax Court is viewed as the continuation of an administrative proceeding or the commencement of a judicial one. The Delpit and Freeman cases have taken opposing views on this question. Both cases involved petitioners who filed for bankruptcy after appealing from a decision of the Tax Court; these petitioners argued that section 362(a)(1) automatically stayed their appeals. In Freeman, 799 F.2d at 1092, the Fifth Circuit began its analysis with the proposition that an appeal from a decision of the Tax Court is the continuation of a judicial proceeding. In order to determine whether that appeal was a proceeding "against the debtor," the court examined the initial posture of the case.4 It found that the appellants had initiated the judicial proceeding by filing their petition with the Tax Court. Accordingly, neither the Tax Court proceeding nor the petitioners' appeal therefrom was a proceeding "against the debtor" and section 362(a)(1) did not apply. See id. at 1093. In Delpit, on the other hand, the Ninth Circuit concluded that a proceeding before the Tax Court and an appeal therefrom constituted continuations of the "comprehensive income tax assessment procedure ... which is initiated by IRS administrative proceedings 'against' the taxpayer." Delpit, 18 F.3d at 770. It therefore held that section 362(a)(1) stayed the petitioners' appeal.

We reject the Ninth Circuit's characterization of a Tax Court proceeding as a mere continuation of IRS administrative proceedings against the taxpayer. In light of Supreme Court and Eleventh Circuit precedent, it is clear that a Tax Court case is properly to be characterized as an independent judicial proceeding.5 See Freytag v. Commissioner, 501 U.S. 868, 890-91, 111 S. Ct. 2631, 2645, 115 L. Ed. 2d 764 (1991) ("The Tax Court exercises judicial, rather than executive, legislative, or administrative, power."); Gatlin v. Commissioner, 754 F.2d 921, 923 (11th Cir.1985) (" '[A] trial before the Tax Court is a proceeding de novo; our determination of a petitioner's tax liability must be based on the merits of the case and not any previous record developed at the administrative level.' " (quoting Conforte v. Commissioner, 74 T.C. 1160, 1177, 1980 WL 4483 (1980))). We hold, therefore, that the filing of the Robertses' petition for redetermination commenced a judicial proceeding in the Tax Court.

As to whether this judicial proceeding was "against the debtor" within the meaning of the first clause of section 362(a)(1), we conclude that it was not. Given that the petitioners themselves initiated the proceeding by filing their petition for redetermination with the Tax Court pursuant to 26 U.S.C. § 6213, it would be difficult to reach any other conclusion. According to the Delpit court, however, "[t]he mere fact that a debtor 'initiates' an action in Tax Court is not dispositive; we must examine the proceedings as a whole to determine whether they are in fact initiated 'against the debtor.' " Delpit, 18 F.3d at 773. In our view, an examination of the Tax Court judicial proceeding as a whole yields no support for a contrary conclusion.

In fact, if we concluded that the Tax Court proceeding was a proceeding against the Robertses, we would create a fundamental and unwarranted inconsistency in the way that section 362 applies to tax-related judicial proceedings. This risk of inconsistency stems from Congress' decision to provide two paths that a taxpayer may follow for the purpose of obtaining a judicial determination of his tax liability: (1) petition the Tax Court for redetermination of a tax deficiency asserted by the Commissioner; or (2) pay the deficiency, file a claim for refund or credit with the Commissioner, and then (if the claim is unsuccessful) file a tax refund suit against the United States in either the district court or the Claims Court. See 26 U.S.C. §§ 6213(a) (1994) (path one); 26 U.S.C. §§ 6532(a), 7422(a), 28 U.S.C. § 1346(a)(1) (1994) (path two); see also Flora v. United States, 362 U.S. 145, 158-59, 80 S. Ct. 630, 637-38, 4 L. Ed. 2d 623 (1960) (discussing Congressional rationale for providing two ways of securing judicial determination of questions involved in tax disputes). A tax refund suit is not an action "against the debtor"--even in the Ninth Circuit. See Valory v. United States, 97-2 U.S. Tax Cas. (CCH) p 50,805 (N.D.Cal.1997), aff'd mem., 98-2 U.S. Tax Cas. (CCH) p 50,659 (9th Cir.1998) (finding 11 U.S.C. § 108(c) inapplicable to refund suit because it applies only to actions against the debtor). Because tax refund suits and Tax Court petitions share a common purpose, we see no logical reason why a taxpayer's election to proceed in Tax Court rather than district court should affect a court's determination of whether the proceeding is "against the debtor" under the first clause of section 362(a)(1). We therefore find that the Tax Court proceeding below was not a proceeding "against" the petitioners. Consequently, the first clause of section 362(a)(1) did not apply to that proceeding.

The petitioners also argue that their Tax Court case was a proceeding "to recover a claim against the debtor" under the second clause of section 362(a)(1). They direct our attention to Delpit, which concluded--in a relatively analysis-free paragraph--that an appeal from a Tax Court decision was a continuation of an administrative audit proceeding initiated by the IRS in order to recover an alleged tax deficiency from the taxpayers. See Delpit, 18 F.3d at 770-71. We disagree with this conclusion. As we indicated in part II.A.1, a Tax Court case is not a continuation of an administrative proceeding--it is an independent judicial proceeding.6 Furthermore, it is well-established that the Tax Court is a court of strictly limited jurisdiction and powers.7 Although it is empowered to enjoin the collection of a deficiency in certain limited circumstances, see 26 U.S.C. § 6213(a) (1994), the Tax Court possesses no statutory authority to issue orders in aid of IRS collection activities. See 14 Jacob Mertens, Jr., The Law of Federal Income Taxation § 49E.46 at 145 n. 58 (1998 rev. ed.) ("A proceeding in the Tax Court is, of course, not a suit for the collection of taxes, but a proceeding for the review of the Commissioner's action in determining a deficiency."). Instead, the Government must bring a suit for collection of tax in federal district court (or perhaps in state court) if it wants judicial assistance in recovering a tax deficiency. See 26 U.S.C. § 7402(a) (1994); 28 U.S.C. § 1340 (1994); Taylor v. United States, 324 Mass. 639, 88 N.E.2d 121, 124-25 (1949) (collection in state court); cf. 4 Laurence F. Casey, Federal Tax Practice § 13.57 (1993) (discussing different types of suits for collection of tax). Thus, a Tax Court case plainly cannot be characterized as a proceeding "to recover a claim against the debtor."

In sum, we hold that the Tax Court proceeding regarding the Robertses' petition for redetermination was neither a proceeding "against the debtor" nor a proceeding "to recover a claim against the debtor" within the meaning of section 362(a)(1). Accordingly, section 362(a)(1) did not operate to stay the 90-day period for filing a notice of appeal from the Tax Court's decision.

Under section 362(a)(8) of the Bankruptcy Code, the filing of a bankruptcy petition automatically stays "the commencement or continuation of a proceeding before the United States Tax Court concerning the debtor." 11 U.S.C. § 362(a)(8) (1994).8 Appeals from decisions of the Tax Court are not stayed by this provision. See Cheng v. Commissioner, 938 F.2d 141, 143 (9th Cir.1991).9 The petitioners argue, however, that their October 1990 petition for redetermination was still before the Tax Court when they filed their second bankruptcy petition on December 30, 1993--fewer than 90 days after the Tax Court reentered its decision on October 27. As a result, they claim, the filing of their second petition automatically stayed the continuation of the 90-day period for filing a notice of appeal.

The petitioners are correct in part. Section 7481(a)(1) of the Internal Revenue Code states that "the decision of the Tax Court shall become final ... [u]pon the expiration of the time allowed for filing a notice of appeal, if no such notice has been duly filed within such time." 26 U.S.C. § 7481(a)(1) (1994). The unmistakable implication of this section is that the Tax Court, after entering its decision, retains jurisdiction over a petition for redetermination until a notice of appeal is filed or the 90-day time period allowed for filing such a notice expires. In this jurisdictional sense, then, the Robertses' petition for redetermination was still before the Tax Court when they filed their second bankruptcy petition on December 30.

We disagree, however, with the petitioners' further claim that their December 30 bankruptcy filing automatically stayed the continuation of the 90-day period for filing a notice of appeal. Although their petition was still before the Tax Court on December 30, we conclude that the proceeding before the Tax Court concerning their petition terminated when the Tax Court reentered its decision on October 27. This conclusion finds support in the common-sense principle that a judicial "proceeding" within the meaning of section 362(a) ends once a decision on the merits has been rendered; ministerial acts or automatic occurrences that entail no deliberation, discretion, or judicial involvement--such as the running of the 90-day period for filing a notice of appeal and the resulting finality of the Tax Court's decision--do not constitute continuations of such a proceeding. See Production Credit Ass'n of Minot v. Burk, 427 N.W.2d 108, 110 (N.D.1988) (holding that 11 U.S.C. § 108(b), rather than 11 U.S.C. § 362(a), governed the running of a statutory time period for filing a notice of appeal); Bell v. Alden Owners, Inc., 199 B.R. 451, 460-62 (S.D.N.Y.1996) (same); see also Soares v. Brockton Credit Union (In re Soares ), 107 F.3d 969, 973-74 (1st Cir.1997) (concluding that ministerial acts are not stayed); Rexnord Holdings, Inc. v. Bidermann, 21 F.3d 522, 527-28 (2d Cir.1994) (same); cf. Johnson v. First Nat'l Bank of Montevideo, 719 F.2d 270, 276 (8th Cir.1983) ("Although a stay [of the mortgagor's statutory redemption period] would be consistent with [the broad purposes of the automatic stay], we are of the view that § 362(a) cannot be read to stay the mere running of a statutory time period."); Trigg v. United States (In re Trigg ), 630 F.2d 1370, 1373 (10th Cir.1980) (concluding that automatic termination of lease following debtor's nonpayment of rent was not a proceeding that could be automatically stayed under the Bankruptcy Act of 1898). Because there was no continuing proceeding before the Tax Court concerning the petitioners on December 30, no automatic stay could have arisen on that date pursuant to section 362(a)(8).

Section 108 of the Bankruptcy Code extends the time period within which a bankruptcy trustee or debtor in possession10 may take certain actions under "applicable nonbankruptcy law." 11 U.S.C. § 108 (1994). Despite the petitioners' claims to the contrary at oral argument,11 we conclude that section 108 did not sufficiently extend the applicable 90-day period for appealing the decision of the Tax Court in order to render their notice of appeal timely.

As an initial matter, it is clear that subsections (a) and (c) of section 108 did not even apply to this 90-day period. Subsection (a) applies to time periods "within which the debtor may commence an action." 11 U.S.C. § 108(a). Plainly, the filing of a notice of appeal does not constitute the commencement of an action. Subsection (c) deals with time periods "for commencing or continuing a civil action ... on a claim against the debtor." 11 U.S.C. § 108(c). The Tax Court proceeding below, however, was not a proceeding "against" the petitioners. See supra part II.A.1.

Subsection (b),12 on the other hand, has been applied to extend time periods that govern the filing of notices of appeal. See 11 U.S.C. § 108(b); Autoskill, Inc. v. National Educ. Support Sys., Inc., 994 F.2d 1476, 1484 (10th Cir.1993). Unfortunately for the petitioners, the extension allowed by that subsection in this case was insufficient to render their notice of appeal timely. The 90-day period for filing a notice of appeal began to run on October 27, 1993 (the date that the Tax Court reentered its decision) and ended on January 25, 1994. Section 108(b)(2) extended the filing deadline to February 28, 1994--sixty days after the petitioners filed their second bankruptcy petition on December 30, 1993. See 11 U.S.C. § 301 (1994). The petitioners, however, did not file their notice of appeal until May 3, 1996. Their notice was therefore untimely and we must dismiss this appeal.

For the foregoing reasons, the Commissioner's motion to dismiss the petitioners' appeal is GRANTED.