Automatic stay forbids commencement of tax court case.The IRS An abbreviation for the Internal Revenue Service, a federal agency charged with the responsibility of administering and enforcing internal revenue laws. issued a deficiency notice on Dec. 13, 2004 for P's 2002 Federal return. P filed for bankruptcy on Feb. 11, 2005. P filed a Tax Court petition on March 21, 2005, and received a discharge in the bankruptcy case on Aug. 18, 2005. Analysis On the commencement of a bankruptcy action, an automatic stay arises by operation of law. Absent a granting of relief from the stay by the bankruptcy court, it generally continues unimpaired Adj. 1. unimpaired - not damaged or diminished in any respect; "his speech remained unimpaired" undamaged - not harmed or spoiled; sound uninjured - not injured physically or mentally until the earliest of the closing or dismissal of the case, or the grant or denial of a discharge; see 11 USC An abbreviation for U.S. Code. Section 362(c)(2); Allison, 97 TC 544, 545 (1991); and Smith, 96 TC 10 (1991). Actions prohibited by the automatic stay include "the commencement ... of a proceeding before the United States Tax Court The United States Tax Court is a Federal court of record established under Article I of the Constitution of the United States which specializes in adjudicating disputes over federal income tax assessments. concerning the debtor" (11 USC Section 362(a)(8)). Actions taken in violation of the automatic stay are void ab initio; see Roberts, 175 F3d 889 (11th Cir. 1999). Accordingly, P's filing of a petition with this court is void ab initio, and, hence, a nullity nullity n. something which may be treated as nothing, as if it did not exist or never happened. This can occur by court ruling or enactment of a statute. The most common example is a nullity of a marriage by a court judgment. NULLITY. . Because the automatic stay was in effect, the petition is invalid and must be dismissed for lack of jurisdiction. P contends that the IRS waived the right to challenge the court's jurisdiction. Whether the court has jurisdiction is an issue that either party may raise at any time, and the failure to question jurisdiction by a certain time is not a waiver of the right to do so (see Charlotte's Office Boutique, Inc., 121 TC 89 (2003), supplemented by TC Memo 2004-43, aff'd, 425 F3d 1203 (9th Cir. 2005)). THOMAS H. CASSEL Cas·sel See Kassel. III, TC MEMO 2006-132 |
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