McCLAMMA v. COMMISSIONER Docket No. 5568-80.
76 T.C. 754 (1981)
JOHN McCLAMMA AND CATHERINE McCLAMMA, PETITIONERS v. COMMISSIONER OF INTERNAL REVENUE, RESPONDENT
United States Tax Court.
Filed May 12, 1981.
Carolyn A. Boyer and Katherine S. Weed, for the respondent.
This case was assigned to Special Trial Judge Francis J. Cantrel for the purpose of conducting the hearing and ruling on respondent's motion to dismiss for lack of jurisdiction.
OPINION OF THE SPECIAL TRIAL JUDGE
CANTREL, Special Trial Judge:
This case is presently before the Court on respondent's motion to dismiss for lack of jurisdiction as to petitioner John McClamma (John) filed on January 14, 1981.
Respondent, in his notices of deficiency issued to petitioners on February 15, 1980, has determined a deficiency of $1,572.50 in petitioners' 1977 Federal income tax and an addition to the tax under section 6653(a)
On the date the joint petition herein was filed, John resided at Green Acres, Apartment 1, Long Beach, Miss. 39560, and Catherine McClamma resided at 637 South Andrews Avenue, Fort Lauderdale, Fla. 33301. They filed a joint Federal income tax return for the taxable year 1977 with the Internal Revenue Service.
The procedural sequence of events resulting in this case began on February 15, 1980, the date on which respondent mailed his notices of deficiency to petitioners. John, on March 3, 1980, filed
Respondent's position is that the petition filed herein, insofar as it applies to John, was filed in violation of the automatic stay provisions of section 362(a)(8) of the Bankruptcy Code, 11 U.S.C. sec. 362(a)(8). We agree.
This case is governed by the provisions of the Bankruptcy Code, Pub. L. 95-598, 92 Stat. 2549, 11 U.S.C. sec. 101 et seq., enacted on November 6, 1978, effective to bankruptcy cases commenced after October 1, 1979, and the amendments made to the Internal Revenue Code by the Bankruptcy Tax Act of 1980, Pub. L. 96-589, 94 Stat. 3389, 26 U.S.C. sec. 1 et seq., enacted December 24, 1980, whose procedural provisions are effective October 1, 1979.
Formerly, section 6871(b) prohibited the filing of a petition in this Court once a petition had been filed in bankruptcy.
Thus, the petition in this Court filed with respect to John was filed in violation of the automatic stay provisions and is invalid. The joint statement by Senator De Concini and Congressman Edwards makes it perfectly clear: "If the Internal Revenue Service had issued a deficiency notice to the debtor before the bankruptcy case began, but as of the filing of the bankruptcy petition the 90-day period for filing in the Tax Court was still running, the debtor would be automatically stayed from filing a petition in the Tax Court." 124 Cong. Rec. S17427 (1978); 124 Cong. Rec. H11111 (1978).
As to the time John had to file a new petition in this Court, respondent argues that the unexpired portion of the 90-day period provided under section 6213(a) is added to the 60 days provided by section 6213(f).
Section 6213(f) provides that the running of time for filing a petition in this Court shall be suspended for a period during which the debtor is prohibited from filing a petition in this Court and for 60 days thereafter.
Finally, we must discuss the impact of the automatic stay with respect to Catherine McClamma, who did not file a petition in bankruptcy. We agree with respondent that the original petition was properly and validly filed with respect to Catherine McClamma. The institution of bankruptcy proceedings by one joint petitioner has no effect on the validity of the petition filed on behalf of a nonbankrupt petitioner. In Baron v. Commissioner, 71 T.C. 1028 (1979), we held that the dismissal for lack of jurisdiction over John Baron who had been adjudicated a bankrupt did not affect the Court's jurisdiction over his wife who was not involved in the bankruptcy proceeding. There, as here, the wife was a separate taxpayer who had received notice that respondent had determined a deficiency in her taxes as well.
Respondent's motion to dismiss for lack of jurisdiction will be granted as to petitioner John McClamma.
An appropriate order will be issued.
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