69 T.C. 81">*82 OPINION

On December 3, 1976, a petition entitled as above was filed in this case seeking a redetermination of deficiencies and additions to tax for the calendar years 1970 through 1973. Attached to the petition was a copy of a notice of deficiency mailed to petitioners on September 3, 1976, determining the following deficiencies and additions to tax:

1977 U.S. Tax Ct. LEXIS 35">*39 On February 22, 1977, respondent filed a motion to dismiss the above-entitled case as to James E. Tatum for lack of jurisdiction and to change caption.

The issues here are (1) whether this Court under the provisions of section 6871(b), I.R.C. 1954, ¹ lacks jurisdiction of the deficiencies involved in this case as to Mr. Tatum since the petition herein was filed after the filing by Mr. Tatum of a petition for an arrangement under chapter XI of the Bankruptcy Act, and (2) whether this Court under section 6871(b) lacks jurisdiction over the additions to tax asserted by respondent.

On April 6, 1977, petitioners filed objections to respondent's motion on the ground that there had been no approval of the petition filed by James E. Tatum for an arrangement under chapter XI of the Bankruptcy Act. Petitioners contend that the provisions of chapter XI require approval of the arrangement proposed in the petition, and therefore since the petition in 1977 U.S. Tax Ct. LEXIS 35">*40 this case was filed prior to approval of the proposed arrangement under chapter XI of the Bankruptcy Act, section 6871(b) does not cause this Court to lack jurisdiction to determine the deficiencies and additions to tax asserted by respondent against Mr. Tatum.

At the hearing on this motion held in Houston, Tex., on May 9, 69 T.C. 81">*83 1977, the parties agreed to the facts relevant to respondent's motion. These agreed facts show that petitioners are husband and wife who filed joint Federal income tax returns for the calendar years 1970 through 1973. At the time their petition in this case was filed, they resided in Houston, Tex.

Respondent in the statutory notice of deficiency mailed to petitioners on September 3, 1976, determined deficiencies and additions to tax as above set forth. On October 4, 1976, petitioner James E. Tatum filed a petition under chapter XI of the Bankruptcy Act with the United States District Court for the Southern District of Texas, and on December 3, 1976, the petition with this Court seeking a redetermination of the deficiencies and additions to tax was filed. On January 13, 1977, respondent sent a letter (Form L-296) to James E. Tatum as debtor in possession1977 U.S. Tax Ct. LEXIS 35">*41 notifying him that deficiencies in income tax and additions to tax were being assessed against him under the provisions of section 6871(a) for the calendar years 1970 through 1973. The amounts of the deficiencies and additions to tax set forth in this letter were identical to the amounts determined in the statutory notice of deficiency mailed September 3, 1976. The deficiencies in income tax as set forth in the letter of January 13, 1977 (Form L-296), sent to Mr. Tatum were assessed against him on January 17, 1977. On February 2, 1977, the Commissioner of Internal Revenue filed a proof of claim in the bankruptcy proceeding for assessed Federal income taxes due from James E. Tatum for the years 1970 through 1973. The proof of claim, Form 4491, claimed, among other things, the following amounts of income tax and interest:

No claim was made in the proof of claim filed February 2, 1977, for any additions1977 U.S. Tax Ct. LEXIS 35">*42 to tax and no other claim for these taxes 69 T.C. 81">*84 has been made by respondent in the proceedings under chapter XI of the Bankruptcy Act.

Section 6871(a) provides that upon the adjudication of bankruptcy of any taxpayer or the filing or where approval is required by the Bankruptcy Act, the approval of a petition of any taxpayer in any other bankruptcy proceeding, any deficiency determined with respect to an income tax shall, despite the restrictions imposed by section 6213(a) upon assessments, be immediately assessed if such deficiency has not previously been assessed in accordance with law. Section 6871(b)² provides that in the case of an income tax deficiency, a claim for such deficiency and such interest, additional amounts and additions to the tax may be presented for adjudication in accordance with law to the court before which the bankruptcy or receivership proceeding is pending despite the pendency of proceedings for the redetermination of the deficiency before the Tax Court; but that no petition for any such redetermination shall be filed with the Tax Court after the adjudication of bankruptcy, the filing or (where approval is required by the Bankruptcy Act) the approval1977 U.S. Tax Ct. LEXIS 35">*43 of a petition of, or the approval of a petition against, any taxpayer in any other bankruptcy proceeding.

1977 U.S. Tax Ct. LEXIS 35">*44 It is respondent's position that this Court lacks jurisdiction of a case where after the mailing of the notice of deficiency, but prior to the date of the filing of the petition in this Court, a taxpayer to whom the notice is issued files a petition under chapter XI of the Bankruptcy Act. In Izen v. Commissioner, 64 T.C. 919">64 T.C. 919, 64 T.C. 919">923-924 (1975), we so held with respect to the deficiency as 69 T.C. 81">*85 determined by respondent in the notice of deficiency. Petitioners, however, point out that the facts in the Izen case do not show whether the arrangement proposed in the petition filed under chapter XI of the Bankruptcy Act had been approved by creditors and confirmed by the court prior to the filing of the petition by the taxpayers there involved with this Court. They stated that in any event no issue as to whether it was necessary that such approval and confirmation have occurred to deprive this Court of jurisdiction over the deficiency was raised. Petitioners argue that since under the provisions of chapter XI of the Bankruptcy Act the arrangement proposed in the petition must be approved by all or a majority of the unsecured creditors and confirmed1977 U.S. Tax Ct. LEXIS 35">*45 by the court to become effective, the provisions of section 6871(b) should be interpreted as inapplicable to a petition filed under chapter XI of the Bankruptcy Act until the arrangement proposed in the petition under chapter XI or thereafter is accepted by the creditors and confirmed by the court. Petitioners state, and respondent admits, that at the date this motion was argued the arrangement proposed by James E. Tatum had not been confirmed by the court.

Chapter XI of the Bankruptcy Act (11 U.S.C. secs. 701-799) provides that a debtor may file a petition under chapter XI in a pending bankruptcy proceeding either before or after his adjudication (11 U.S.C. sec. 721) or if no bankruptcy proceeding is pending, a debtor may file an original petition under chapter XI with the court which would have jurisdiction of a petition for his adjudication in bankruptcy (11 U.S.C. sec. 722). In the instant case, the parties agree that the petition filed by Mr. Tatum on October 4, 1976, with the United States District Court for the Southern District of Texas, was an original petition under1977 U.S. Tax Ct. LEXIS 35">*46 chapter XI (11 U.S.C. sec. 722), since at the time it was filed no bankruptcy proceeding was pending involving Mr. Tatum. Chapter XI further provides (11 U.S.C. sec. 723) that a petition filed under that chapter shall state that the debtor is insolvent or unable to pay his debts as they mature and shall set forth the provisions of the arrangement proposed by him or state that he intends to propose an arrangement pursuant to the provisions of the chapter. ³

69 T.C. 81">*86 Chapter XI further provides for notice to creditors of a creditors' meeting, accompanied1977 U.S. Tax Ct. LEXIS 35">*47 by a copy of the proposed arrangement, and the actions to be taken by the court after acceptance of the arrangement by creditors. Subchapter IX of chapter XI of the Bankruptcy Act (11 U.S.C. secs. 761 and 762) provides for confirmation of the arrangement by the court. 11 U.S.C. sec. 761 provides for such confirmation when at a meeting of creditors the arrangement has been accepted in writing by all creditors affected thereby whether or not their claims have been proved. 11 U.S.C. sec. 762 provides that if an arrangement has not been accepted by all creditors but has been accepted by a majority of all creditors or where creditors have been divided into classes by a majority of the creditors of each class, that an application may be made for the confirmation by the bankruptcy court of the arrangement within the time fixed by the court. Chapter XI contains various provisions for modification of the proposed arrangement and adjournments of the hearing. It also contains provisions as to the effect of confirmation of the arrangement. Subchapter X of chapter XI (11 U.S.C. secs. 7761977 U.S. Tax Ct. LEXIS 35">*48 and 777), provides that where confirmation of the arrangement is refused the court shall, if the petition was filed after the filing of a bankruptcy proceeding, enter an order dismissing the chapter XI proceeding and directing that the bankruptcy be proceeded with pursuant to the Bankruptcy Act or, if the petition was filed when no bankruptcy proceeding was pending --

enter an order, upon hearing after notice to the debtor, the creditors, and such other persons as the court may direct, either adjudging the debtor a bankrupt and directing that bankruptcy be proceeded with pursuant to the provisions of this title or dismissing the proceeding under this chapter, whichever in the opinion of the court may be in the interest of the creditors: Provided, however, That an order adjudging the debtor a bankrupt may be entered without such hearing upon the debtor's consent.

11 U.S.C. sec. 777 provides that where the court has retained jurisdiction after the confirmation of an arrangement and the debtor defaults in any of the terms thereof or the arrangement 69 T.C. 81">*87 terminates by reason of the happening of a condition specified in the arrangement, the1977 U.S. Tax Ct. LEXIS 35">*49 court, upon hearing, after notice to the debtor and creditors or such other persons that the court may direct, shall take the same actions that the court is permitted to take in the case of an arrangement not being confirmed by the court. ⁴

1977 U.S. Tax Ct. LEXIS 35">*50 Petitioners argue that since the bankruptcy court has the authority, if an arrangement is not approved, to dismiss the proceeding, the filing of a petition under chapter XI is a situation "where approval is required by the Bankruptcy Act." In our view the provisions of the Bankruptcy Act are clear that approval of a petition is not required under chapter XI, but rather the confirmation of the arrangement proposed in the petition or thereafter is required.

"Confirmation" by the court of the arrangement might substantively be equivalent to the "approval" by the court of the arrangement. However, there is no requirement of any form of confirmation or approval of the petition under chapter XI. We 69 T.C. 81">*88 might be more impressed by petitioners' argument that if an arrangement is not accepted or confirmed by the bankruptcy court and that court dismisses the proceeding, Mr. Tatum would be left with no forum for hearing of the merits of his tax liability prior to payment if the identical provision did not appear in the section dealing with authority of the bankruptcy court after confirmation of an arrangement where the court retains jurisdiction after such confirmation. Certainly under1977 U.S. Tax Ct. LEXIS 35">*51 various other provisions of chapter XI of the Bankruptcy Act, such as the provision for the conduct and business of creditors' meetings (11 U.S.C. sec. 736), ⁵1977 U.S. Tax Ct. LEXIS 35">*52 which specifically provides that at the creditors' meeting the judge or referee may receive proofs of claim and allow or disallow them, it would appear that once a petition is filed a taxpayer would have ample opportunity to have the merits of his tax claim heard. It appears from the provisions of 11 U.S.C. sec. 736 that the creditors' meeting is prior to acceptance by creditors of an arrangement or confirmation of such arrangement by the bankruptcy court since the section also provides that the judge shall receive and determine the written acceptances of creditors on the proposed arrangement if a copy thereof shall have accompanied such notice of meeting or adjourned meeting. In our view, regardless of what ultimately happens with respect to the proposed arrangement, once a petition under chapter XI of the Bankruptcy Act is filed, a taxpayer does have an opportunity to have the merits of his tax liability determined in the bankruptcy court. ⁶

1977 U.S. Tax Ct. LEXIS 35">*53 69 T.C. 81">*89 Section 6871(a) prior to its amendment by the Technical Amendments Act of 1958 (Pub. L. 85-866, sec. 88(a), 72 Stat. 1606, provided for immediate assessment of deficiencies --

Upon the adjudication of bankruptcy of any taxpayer in any liquidating proceeding, [or] the approval of a petition of, or against, any taxpayer in any other bankruptcy proceeding, * * *

and section 6871(b) prior to its amendment by section 88(b) of Pub. L. 85-866 contained the following provision with respect to when a petition could not be filed with this Court:

after the adjudication of bankruptcy, [or] approval of the petition * * *

In explaining the change made by the Technical Amendments Act of 1958 to substitute the provisions now appearing in section 6871(a) and (b), the report of the Committee on Ways and Means of the House of Representatives, H.Rept. 775, 85th Cong., 1st Sess. (1957), 1958-3 C.B. 811, 915, stated:

Section 6871(a) now provides expressly for immediate assessment upon the adjudication of bankruptcy of any taxpayer in any liquidating proceeding, or the approval of a petition of, or against, any taxpayer in any other bankruptcy proceeding, but 1977 U.S. Tax Ct. LEXIS 35">*54 in the case of certain proceedings under the Bankruptcy Act (such as a proceeding under chapter 11 thereof) approval of the petition is not required. The amendment merely makes it clear that in case there is no provision for approval of the petition under the Bankruptcy Act, the assessment is to be made when the petition is filed.

The Senate Report with respect to the Technical Amendments Act of 1958, S. Rept. 1983, 85th Cong., 2d Sess. (1958), 1958-3 C.B. 922, 1158, carries a comparable explanation of the changes made to section 6871. This legislative history is a clear indication that Congress considered that no approval was required by the Bankruptcy Act of a petition filed under chapter XI.

We conclude that since James E. Tatum filed a petition for an arrangement under chapter XI of the Bankruptcy Act prior to the filing of his petition in this case, we lack jurisdiction over the deficiencies determined by the Commissioner against Mr. Tatum under the provisions of section 6871(b).

It is, however, necessary for us to determine whether we do 69 T.C. 81">*90 have jurisdiction over the additions to tax determined by the Commissioner against Mr. Tatum under sections1977 U.S. Tax Ct. LEXIS 35">*55 6651(a) and 6653(a). It is to be noted that respondent did not include these additions to tax in his claim filed in the bankruptcy proceeding. On brief, he effectively concedes that under the holding in Simonson v. Granquist, 369 U.S. 38">369 U.S. 38 (1962), he is not entitled to allowance of these additions to tax in the bankruptcy proceeding. Since respondent effectively concedes that additions to tax for failure to timely file returns and negligence under sections 6651(a) and 6653(a) are nonpecuniary loss tax penalties, he admits that these additions to tax would not be allowable in the bankruptcy proceeding. In Prather v. Commissioner, 50 T.C. 445">50 T.C. 445 (1968), we held that section 6871 did not preclude a petition to this Court with respect to additions to tax for fraud where those additions to tax were not presented to the bankruptcy court for adjudication and could not have been allowed as a claim against the bankrupt under 369 U.S. 38">Simonson v. Granquist, supra, had they been presented. ⁷ In King v. Commissioner, 51 T.C. 851">51 T.C. 851, 51 T.C. 851">854 (1969), we held that where a notice of deficiency1977 U.S. Tax Ct. LEXIS 35">*56 was sent to a taxpayer who had been adjudicated a bankrupt but not discharged from bankruptcy we had jurisdiction to redetermine the deficiency asserted by the Commissioner in that notice where the Commissioner had not filed a proof of claim for the deficiency in the bankruptcy proceeding. In so holding we relied on the Prather case, supra, stating that in that case we held that "since the claim for the fraud penalty was not and could not have been presented to the bankruptcy court, * * * we had jurisdiction to redetermine that claim." We concluded that the Prather case had applied the "no petition" language of section 6871 to operate "as a bar to Tax Court jurisdiction only if the taxpayer has had an opportunity to litigate the asserted deficiency in the bankruptcy proceeding." In neither the Prather case nor the King case did we discuss the provisions contained in 11 U.S.C. sec. 11(a)(2A) which was an amendment to the Bankruptcy Act by Pub. L. 89-496, sec. 1, 80 Stat. 270 (July 5, 1966). This section provides, among other things, that courts of bankruptcy have jurisdiction to --

69 T.C. 81">*91 Hear and determine, or cause to be1977 U.S. Tax Ct. LEXIS 35">*57 heard and determined, any question arising as to the amount or legality of any unpaid tax, whether or not previously assessed, which has not prior to bankruptcy been contested before and adjudicated by a judicial or administrative tribunal of competent jurisdiction, and in respect to any tax, whether or not paid, when any such question has been contested and adjudicated by a judicial or administrative tribunal of competent jurisdiction and the time for appeal or review has not expired, to authorize the receiver or the trustee to prosecute such appeal or review;

Subsequent to our decisions in Prather and King, rules 303 and 11-33(c) of the Federal Rules of Bankruptcy were adopted by orders of April 24, 1973, and March 18, 1974, respectively. They permit a bankrupt to file a claim for taxes on behalf of the Government if such a claim has not been filed by the Government prior to the first creditors' meeting. The Bankruptcy Act was further amended to provide that the bankrupt or any creditor may file an application with the bankruptcy court for the determination of the dischargeability of any debt. (Pub. L. 91-467, 84 Stat. 992, 11 U.S.C. sec. 351977 U.S. Tax Ct. LEXIS 35">*58 (c)⁸ (Oct. 19, 1970)).

1977 U.S. Tax Ct. LEXIS 35">*59 In Tanner v. Commissioner, 64 T.C. 415">64 T.C. 415, 64 T.C. 415">420-421 (1975), we had before us the case of a taxpayer who, after adjudication as a bankrupt but before a discharge, received a statutory notice of transferee liability from which he filed a petition with this Court. The Commissioner had made no assessment of the liability and filed no proof of claim in the bankruptcy proceeding. In the Tanner case we discussed the 1966 amendment to the Bankruptcy Act (11 U.S.C. sec. 11(a)(2A)) not considered in the King case, as well as the 1970 amendment (11 U.S.C. sec. 35(c)) permitting the bankrupt as well as any creditor to file an application to have the dischargeability of a debt in bankruptcy determined.

In 64 T.C. 415">Tanner v. Commissioner, supra, we discussed the legislative history of 11 U.S.C. sec. 11(a)(2A) as well as some cases dealing with the provisions of that section. There, we pointed out that even though the legislative history of the section carried a 69 T.C. 81">*92 contrary inference, several courts had held that the statutory 1977 U.S. Tax Ct. LEXIS 35">*60 language clearly gave the bankruptcy court jurisdiction to determine the amount and legality of an unpaid tax even though a proof of claim had not been filed. More recently this same conclusion was reached in In re Dolard, 519 F.2d 282">519 F.2d 282 (9th Cir. 1975), and Murphy v. United States, 533 F.2d 941">533 F.2d 941 (5th Cir. 1976).⁹ Some cases holding that the bankruptcy court has jurisdiction to determine the dischargeability of Federal taxes in the bankruptcy proceeding, even though no proof of claim had been filed, likewise support this conclusion. See, e.g., Gwilliam v. United States, 519 F.2d 407">519 F.2d 407, 519 F.2d 407">410 (9th Cir. 1975); Bostwick v. United States, 521 F.2d 741">521 F.2d 741 (8th Cir. 1975).

1977 U.S. Tax Ct. LEXIS 35">*61 In 64 T.C. 415">Tanner v. Commissioner, supra, we further pointed out that clearly under the 1970 amendment (11 U.S.C. sec. 35(c) (3)) the bankruptcy court is granted jurisdiction to adjudicate the merits of a tax claim in connection with a petition for a determination of dischargeability and that this right exists whether or not respondent has filed a proof of claim, citing In re Durensky, 377 F. Supp. 798">377 F. Supp. 798 (N.D. Tex. 1974). In the more recent In re Durensky,    F. Supp.    ( N.D. Tex. 1976, 39 AFTR 2d 77-310, 77-1 USTC par. 9267), the bankruptcy court, in fact, did determine the merits of a tax liability in which no proof of claim was filed and the Commissioner was contending that part of the deficiency was due to fraud. However, in the Tanner case, supra, we decided to follow our holding in 51 T.C. 851">King v. Commissioner, supra, that we did have jurisdiction where no proof of claim had been filed by respondent in the bankruptcy proceeding until 69 T.C. 81">*93 further development of the law with respect to the 1966 and 1970 amendments1977 U.S. Tax Ct. LEXIS 35">*62 to the Bankruptcy Act.

In our view it is now clear from the holdings of the Ninth Circuit in 519 F.2d 282">In re Dolard, supra, and of the Fifth Circuit in 533 F.2d 941">Murphy v. United States, supra, that insofar as an unpaid tax is concerned the bankruptcy court has jurisdiction to determine any question with respect to the amount or the legality of such tax even though the Commissioner files no proof of claim. The doubt expressed in 64 T.C. 415">Tanner v. Commissioner, supra, of whether the bankruptcy court would take such jurisdiction clearly no longer exists. This is certainly the situation where the bankrupt chooses to exercise his rights under rule 303 of the Federal Rules of Bankruptcy or under the provisions of 11 U.S.C. sec. 35(c)(1).

Since under present bankruptcy law the bankrupt taxpayer has an unquestionable right to have his tax liability adjudicated in the bankruptcy proceeding even though the Commissioner has filed no proof of claim for the tax, the basis for our holding in the King case and the Tanner case no longer exists. For this reason, we will no longer follow 1977 U.S. Tax Ct. LEXIS 35">*63 our holding in 51 T.C. 851">King v. Commissioner, supra, and 64 T.C. 415">Tanner v. Commissioner, supra, that, where no proof of claim is filed by the Commissioner in the bankruptcy proceeding with respect to an indebtedness for tax, this Court has jurisdiction to redetermine the deficiency even though at the time the petition in this Court is filed the taxpayer has been adjudicated a bankrupt and has not been discharged.

It should be noted that even though we stated in the King case that in Prather we held that a claim for an addition to tax for fraud could not have been presented to the bankruptcy court, the Prather case, in fact, only held that had it been presented it could not have been allowed under the holding of the Supreme Court in 369 U.S. 38">Simonson v. Granquist, supra.While the Bankruptcy Act is clear (11 U.S.C sec. 93(j)) ¹⁰ that a claim for an addition to tax in the nature of a penalty, such as for fraud, negligence, or failure to timely file a return, is not allowable in a bankruptcy proceeding out of the bankrupt estate, there is not a specific provision that a 69 T.C. 81">*94 1977 U.S. Tax Ct. LEXIS 35">*64 claim for such amount cannot be filed. In any event, if the addition to tax is to be considered as a tax, the bankruptcy court does have jurisdiction under 11 U.S.C. sec. 11(a)(2A) to determine the amount or legality of the addition to tax even though the Commissioner has filed no proof of claim for the amount. Also, under 11 U.S.C. sec. 35(c)(1), the bankrupt or the Commissioner may make application to have the dischargeability of the addition to tax determined even though no claim has been filed. Such an application will bring before the bankruptcy court the question of the amount or legality of the addition to tax if such an addition to tax is a "tax" within the meaning of the Bankruptcy Act. ¹¹ In 533 F.2d 941">Murphy v. United States, supra, the Fifth Circuit referred to "a dischargeable penalty which is governed by 11 U.S.C. sec. 93(j)" as distinguished from the 100-percent penalty under section 6672 for failure to collect and pay over taxes which should have been withheld which was stated to be nondischargeable under 11 U.S.C. sec. 351977 U.S. Tax Ct. LEXIS 35">*65 (a). This statement is a clear indication that the Fifth Circuit considered that the dischargeability of an addition to tax which is a penalty under 11 U.S.C. sec. 93(j) is properly to be determined in the bankruptcy proceeding.

1977 U.S. Tax Ct. LEXIS 35">*66 That an addition to tax under sections 6651(a) and 6653(a) and (b) would be considered as a tax within the meaning of the 69 T.C. 81">*95 bankruptcy laws for the purpose of the bankruptcy court having jurisdiction to determine questions as to the merits thereof is logical in view of the provisions of section 6659(a). ¹² That section provides that additions to tax and penalties shall be "assessed, collected and paid" in the same manner as taxes and that any reference in the Internal Revenue Code to tax imposed by that Code shall also be deemed to refer to additions to tax. When the bankruptcy law refers to "unpaid tax" the source of definition of what constitutes an unpaid Federal tax would logically be the definition of tax contained in the Internal Revenue Code.

1977 U.S. Tax Ct. LEXIS 35">*67 We conclude that the bankruptcy court has jurisdiction to determine Mr. Tatum's liability for the additions to tax determined against him whether or not the respondent files a proof of claim for these additions to tax. Since the proceeding here is under chapter XI, the jurisdiction of the bankruptcy court is sufficiently broad to encompass passing on the merits of the additions to tax under the authority to confirm or refuse to confirm the arrangement. Also, under rules 303 and 11-33(c) of the Federal Bankruptcy Rules, Mr. Tatum could file a claim for these additions to tax for the Government to have the merits of such a claim litigated in the bankruptcy proceeding. Furthermore, even though generally under chapter XI the arrangement must include a provision for payment of taxes having a priority, a dischargeable tax under 11 U.S.C. sec. 104(a)(4), as amended by Pub. L. 89-496, sec. 3, 80 Stat. 271 (July 5, 1966), is treated as an unsecured claim. ¹³1977 U.S. Tax Ct. LEXIS 35">*69 Therefore, in order to confirm a plan it would be necessary for the bankruptcy judge to determine which taxes were dischargeable. Mr. Tatum is therefore entitled under 11 U.S.C. sec. 351977 U.S. Tax Ct. LEXIS 35">*68 (c)(1) to file an application for determination of the 69 T.C. 81">*96 dischargeability of the additions to tax, thereby requiring the bankruptcy court to determine the amount of and his liability for these additions to tax. Since the bankruptcy court does have jurisdiction to make the determination of the amount of the additions to tax under section 6651(a) and section 6653(a) due from Mr. Tatum and his liability therefor, under the provisions of section 6871(b) no petition for any such redetermination ¹⁴ shall be filed with the Tax Court after Mr. Tatum has filed a petition in a bankruptcy proceeding. We therefore lack jurisdiction over the additions to tax determined by respondent under sections 6651(a) and 6653(a). To the extent our holdings in Prather v. Commissioner, 50 T.C. 445">50 T.C. 445 (1968), and Izen v. Commissioner, 64 T.C. 919">64 T.C. 919 (1975), are contrary to our conclusion here, those cases will no longer be followed.

An appropriate order will be entered.

Sterrett, J., concurring: I concur in the result reached by the majority for the reasons set forth in my dissenting opinion in King v. Commissioner, 51 T.C. 851">51 T.C. 851, 51 T.C. 851">862 (1969), and only for those reasons.

Simpson, J., dissenting: This opinion was approved by the Court at the same time as it approved the opinion in Sharpe v. Commissioner, 69 T.C. 19">69 T.C. 19 (1977). For the reasons set forth1977 U.S. Tax Ct. LEXIS 35">*70 in my dissenting opinion in the Sharpe case, I also must dissent in this case. However, there is an additional difficulty with this case.

By adopting both of these opinions, the Court has added to the confusion in this area. As I understand Judge Dawson's opinion 69 T.C. 81">*97 in Sharpe, he holds that when the Commissioner files a claim for a tax deficiency in the bankruptcy proceeding, the bankruptcy court also acquires jurisdiction over any claim for additions to tax. In this case, Judge Scott apparently holds that irrespective of whether the Commissioner files a claim for the deficiency in the bankruptcy proceeding, we lack jurisdiction over either the claim for the deficiency or any claim for additions to tax. The Bar must surely be confused as to which opinion reflects the position of the Court.