T.C. Memo. 1997-272

UNITED STATES TAX COURT

CHARLES CRELLIN DOUGLASS, Petitioner v.

COMMISSIONER OF INTERNAL REVENUE, Respondent

Docket No. 26194-96. Filed June 16, 1997.

Charles Crellin Douglass, pro se.

Nancy Graml, for respondent.

MEMORANDUM OPINION

CHIECHI, Judge: This matter is before us on respondent's

motion to dismiss this case for lack of jurisdiction (respondent's motion) over petitioner's (1) taxable year 1991 because

the petition was not timely filed and (2) taxable year 1995

because respondent did not issue a notice of deficiency for that

year to petitioner. We conclude that this Court has no jurisdic-
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1 All section references are to the Internal Revenue Code in

effect at relevant times.

tion over either 1991 or 1995.

Background

Petitioner resided in Houston, Texas, at the time he filed

the petition in this case on December 9, 1996. In that petition,

petitioner disputed a deficiency, an addition to tax under

section1 6651(a)(1), and a penalty under section 6662 that were

determined by respondent in a notice of deficiency issued to him

for 1991 (1991 notice). He also disputed a deficiency and a

penalty that he alleged were determined in a notice of deficiency

issued to him for 1995.

The record in this case establishes, and the parties concede, the following facts:

On December 15, 1994, petitioner filed for bankruptcy

(petitioner's bankruptcy case) in the U.S. Bankruptcy Court for

the Southern District of Texas, Houston Division (Bankruptcy

Court). On October 19, 1995, respondent mailed to petitioner the

1991 notice. That notice stated in pertinent part:

Even though you are in bankruptcy, you may want to

contest this deficiency in the United States Tax Court. 

Under Bankruptcy Code section 362(a)(8), however, the

filing of a petition with the Tax Court is automatically stayed because of your bankruptcy case. When the

automatic stay is in effect, you must ask the Bankruptcy Court (under Bankruptcy Code section 362(d)(1))

to lift the stay so you can file a petition with the

Tax Court. You have 90 days from the date of this

letter (150 days if the letter is addressed to you

outside the United States), plus any additional period
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provided by section 6213(f)(1) of the Internal Revenue

Code (IRC) (generally, the period that the automatic

stay is in effect, plus 60 days) to file a petition

with the Tax Court asking for a redetermination of the

deficiency.

In total disregard of the foregoing statements in the 1991

notice, on January 26, 1996, while petitioner was in bankruptcy,

he filed a petition in this Court with respect to the 1991

notice, and that case was assigned docket No. 1572-96. On May

24, 1996, this Court dismissed the case at docket No. 1572-96 for

lack of jurisdiction because the petition in that case was filed

in violation of the automatic stay imposed by 11 U.S.C. sec.

362(a)(8) (1994).

On May 3, 1996, the Bankruptcy Court entered an order in

petitioner's bankruptcy case discharging petitioner (discharge

order). On May 13, 1996, petitioner filed with the Bankruptcy

Court a motion to vacate the discharge order, which is still

pending before that court. 

On or about August 28, 1996, petitioner filed his Federal

income tax return (return) for 1995 in which he reported tax due

of $3,416 that he did not pay. The Internal Revenue Service

(Service) assessed that amount of tax due. By notice dated

November 4, 1996, the Service requested petitioner to pay the tax

due for 1995, plus interest and a penalty. By final notice of

intent to levy dated January 22, 1997, the Service again requested full payment of the tax, interest, and penalty for

petitioner's taxable year 1995 and also requested full payment of
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2 Petitioner contends that the Service received his 1991 return

on Oct. 20, 1992. Even if that contention were accurate, it

would have no effect on our conclusion regarding petitioner's

taxable year 1991.

the taxes, interest, and penalties for other taxable years of

petitioner, including 1991.

The record also establishes, although petitioner disputes,

that the Service received petitioner's return for 1991 on October

23, 1992.2

Respondent represents in respondent's motion, and petitioner

concedes and/or does not dispute, that respondent did not issue

to petitioner a notice of deficiency for 1995 and that counsel

for respondent notified the Service's revenue officer to cease

collection of any tax liabilities of petitioner for his taxable

years 1991 and 1995 pending a ruling by this Court on respondent's motion.

Discussion

With respect to petitioner's taxable year 1991, although the

1991 notice was timely mailed to petitioner on October 19, 1995,

11 U.S.C. sec. 362(a)(8) (1994) imposed an automatic stay on

proceedings in this (and any other) Court during the pendency of

petitioner's bankruptcy case that he commenced on December 15,

1994. On May 3, 1996, the date on which the Bankruptcy Court

discharged petitioner, that automatic stay was lifted, even

though petitioner thereafter filed a motion to vacate the discharge order. See Olson v. Commissioner, 86 T.C. 1314 (1986). 
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Consequently, the running of the 90-day period prescribed by

section 6213(a) for filing a petition in this Court with respect

to the 1991 notice was suspended for the period during which the

automatic stay was in effect (namely, from December 15, 1994, to

May 3, 1996), and for 60 days thereafter. See sec. 6213(a),

(f)(1). Accordingly, petitioner had a total of 150 days from May

3, 1996, or until September 30, 1996, within which to file timely

a petition in this Court with respect to the 1991 notice. See

id. Petitioner filed his petition in this case on December 9,

1996. We conclude that that petition was not timely filed and

that this Court has no jurisdiction over petitioner's taxable

year 1991. See secs. 6212 and 6213.

With respect to petitioner's taxable year 1995, respondent

represents in respondent's motion, and petitioner concedes, that

respondent did not issue to petitioner a notice of deficiency for

that year. Accordingly, we conclude that this Court has no

jurisdiction over petitioner's taxable year 1995. See secs. 6212

and 6213.

To reflect the foregoing,

An appropriate Order

granting respondent's motion,

as supplemented, and dismissing this case for lack of

jurisdiction will be entered.