1995 U.S. Tax Ct. LEXIS 52">*52 An order granting respondent's Motion to Dismiss for Lack of Jurisdiction with respect to 1984 and 1985 will be issued.
Ps filed a bankruptcy petition on Sept. 3, 1991. On May 20, 1992, R issued a notice of deficiency to Ps determining deficiencies for the taxable years 1984 and 1985. On June 5, 1992, the bankruptcy court issued an order discharging Ps. The discharge order reflected that copies were mailed to all creditors and interested parties on Oct. 20, 1992. On Sept. 10, 1992, R issued a notice of deficiency to Ps for the taxable year 1986. A petition was filed on Dec. 11, 1992, seeking a redetermination with respect to the taxable years 1984, 1985, and 1986.
R filed a motion to dismiss for lack of jurisdiction asserting that the petition, as it relates to 1984 and 1985, was untimely. Ps objected, arguing that the period for filing a petition under
105 T.C. 220">*221
105 T.C. 220">*222 OPINION OF THE SPECIAL TRIAL JUDGE
PANUTHOS,
On September 3, 1991, Rex L. Zimmerman and Charlene A. Zimmerman filed a voluntary petition for relief under chapter 7 of the Bankruptcy Code with the U.S. Bankruptcy Court for the District of Arizona.
On May 20, 1992, respondent mailed a notice of deficiency to petitioners 1995 U.S. Tax Ct. LEXIS 52">*55 determining deficiencies in and additions to their Federal income taxes for the years and in the amounts as follows:
| Addition to Tax | ||
| Year | Deficiency | Sec. 6651(a)(1) |
| 1984 | $ 7,619 | $ 1,994 |
| 1985 | 3,320 | 1,054 |
On June 5, 1992, the bankruptcy court issued an order discharging petitioners from all personal liability for debts existing on the date of the commencement of their bankruptcy case. The discharge order includes a legend stamped at the bottom of the page, signed by the bankruptcy court deputy clerk, stating: "26 COPIES MAILED TO ALL CREDITORS AND INTERESTED PARTIES ON 10/20/92."
On September 10, 1992, respondent issued a notice of deficiency to petitioners determining a deficiency in and additions to their Federal income tax for 1986 as follows:
| Additions to Tax | ||
| Deficiency | Sec. 6651(a)(1) | Sec. 6654 |
| $ 16,963 | $ 4,241 | $ 819 |
On December 11, 1992, petitioners filed a petition for redetermination with this Court seeking a redetermination of their tax liability for the taxable years 1984, 1985, and 105 T.C. 220">*223 1986. 2 At the time the petition was filed, petitioners resided in Gilbert, Arizona.
1995 U.S. Tax Ct. LEXIS 52">*56 As indicated, respondent filed a Motion to Dismiss for Lack of Jurisdiction asserting that this Court lacks jurisdiction with respect to the taxable years 1984 and 1985 on the ground that the petition was not filed within the time prescribed in
This Court's jurisdiction to redetermine a deficiency depends upon the issuance of a valid notice of deficiency and a timely filed petition.
(1) Suspension of running of period for filing petition in title 11 cases.--In any case under title 11 of the United States Code, the running of the time prescribed by subsection (a) for filing a petition in the Tax Court with respect to any deficiency shall be suspended for the period during which the debtor is prohibited by reason of such case from filing a petition in the Tax Court with respect to such deficiency, and for 60 days thereafter.
The so-called automatic stay which precludes the filing of a petition with this Court by1995 U.S. Tax Ct. LEXIS 52">*59 a debtor in bankruptcy is codified at (a) Except as provided in subsection (b) of this section, a petition filed under section 301, 302, or 303 of this title, * * * operates as a stay, applicable to all entities, of * * * (8) the commencement or continuation of a proceeding before the United States Tax Court concerning the debtor. (b) The filing of a petition under section 301, 302, or 303 of this title, * * * does not operate as a stay-- * * * (9) under subsection (a) of this section, of the issuance to the debtor by a governmental unit of a notice of tax deficiency.
The duration of the automatic stay is prescribed in (c) Except as provided in subsections (d), (e), and (f) of this section-- (1) the stay of an act against property of the estate under subsection (a) of this section continues until such property is no longer property of the estate; and (2) the stay of any other act under subsection (a) of this section continues until the earliest of-- (A) the time the case is closed; (B) the time the case is dismissed; or (C) if the case is a case under chapter 7 of this title concerning an individual or a case under chapter 9, 11, 12, or 13 of this title, the time a discharge is granted or denied.
There is no dispute in the instant case that the deficiency notice setting forth respondent's determination for the taxable years 1984 and 1985 was mailed to petitioners on May 20, 1992. It is equally clear that petitioners were precluded by virtue of their pending bankruptcy petition and the automatic stay imposed under
As previously discussed, the automatic stay imposed under
We are not persuaded by petitioners' argument that the automatic stay should be deemed to have remained in effect until October 20, 1992, the date when creditors and interested parties apparently were notified that a discharge had been granted. While we are troubled by the time that expired between the date of the discharge and the apparent service of notice of the discharge on creditors and interested parties several months later, we are unaware of any provision in either the Bankruptcy1995 U.S. Tax Ct. LEXIS 52">*63 Code or the Internal Revenue Code that would justify treating the latter date as the date of discharge. Indeed, petitioners' position is contrary to established case law, conflicts with the plain language of
Consistent with the foregoing, we conclude that the time for filing a timely petition with this Court with respect to the deficiency notice issued to petitioners on May 20, 1992, began to run on the 60th day after June 5, 1992.
105 T.C. 220">*227 To reflect the foregoing,
1. All section references are to the Internal Revenue Code in effect for the years in issue, unless otherwise indicated. All Rule references are to the Tax Court Rules of Practice and Procedure.↩
2. The petition arrived at the Court in an envelope bearing a private postage meter postmark dated Dec. 9, 1992. Although respondent asserts that we lack jurisdiction with respect to the taxable years 1984 and 1985, there is no dispute that petitioners filed a timely petition with respect to the deficiency notice that respondent issued on Sept. 10, 1992, relating to petitioners' liability for the taxable year 1986.
3. Petitioners filed a second petition for relief under ch. 11 of the Bankruptcy Code on or about Apr. 2, 1993. As a consequence, these proceedings were stayed by order dated May 4, 1993. Petitioners' bankruptcy petition was subsequently dismissed resulting in the lifting of the stay by order dated May 17, 1995.↩
4. While petitioners cannot pursue their case in this Court with respect to the taxable years 1984 and 1985, they are not without a remedy. In short, petitioners may pay the tax, file a claim for refund with the Internal Revenue Service, and if the claim is denied, sue for a refund in the Federal District Court or the U.S. Court of Federal Claims. See
