1 All section references are to the Internal Revenue Code, 

unless otherwise indicated. All Rule references are to the Tax

Court Rules of Practice and Procedure.

T.C. Memo. 1998-300

UNITED STATES TAX COURT

 RANDAL W. HOWARD, Petitioner v. 

 COMMISSIONER OF INTERNAL REVENUE, Respondent

 Docket No. 18627-97. Filed August 19, 1998.

Randal W. Howard, pro se.

 Rick V. Hosler and Pamela Wilson-Fuller, for respondent.

MEMORANDUM OPINION

DAWSON, Judge: This case was assigned to Chief Special

Trial Judge Peter J. Panuthos pursuant to the provisions of

section 7443A(b)(4) and Rules 180, 181, and 183.1 The Court

agrees with and adopts the opinion of the Special Trial Judge,

which is set forth below.
- 2 -

OPINION OF THE SPECIAL TRIAL JUDGE

PANUTHOS, Chief Special Trial Judge: This matter is before

the Court on respondent's motion to dismiss for lack of

jurisdiction and to strike as to the taxable years 1989, 1990,

1991, and 1993. The question to be decided is whether the

petition for redetermination was filed with the Court within the

period prescribed in section 6213(f).

Background

 On June 14, 1991, petitioner filed a voluntary petition for

relief under chapter 13 of the Bankruptcy Code with the U.S.

Bankruptcy Court for the District of Arizona.

 On February 21, 1992, respondent mailed a notice of

deficiency to petitioner determining a deficiency in his Federal

income tax for 1989 in the amount of $4,733, as well as additions

to tax in the amounts of $1,182.50 and $320.01 pursuant to

sections 6651(a) and 6654(a), respectively.

 On June 23, 1993, respondent mailed a notice of deficiency

to petitioner determining deficiencies in and additions to his

Federal income taxes for 1990 and 1991 as follows:

 Additions to Tax 

Year Deficiency Sec. 6651(a)(1) Sec. 6654

1990 $8,419 $2,105 $554

 1991 5,483 1,371 318

 On July 24, 1996, the bankruptcy court entered an order

granting the bankruptcy trustee's motion to dismiss petitioner's

case. The bankruptcy court also denied petitioner's request for
- 3 -

a "continuing injunction" against the Internal Revenue Service

(IRS) insofar as the IRS had filed a claim with the court.

Petitioner subsequently filed an appeal challenging the dismissal

of his chapter 13 bankruptcy case with the U.S. District Court

for the District of Arizona.

On December 6, 1996, petitioner filed a petition for relief

under chapter 7 of the Bankruptcy Code with the U.S. Bankruptcy

Court for the District of Arizona.

On March 6, 1997, respondent issued a notice of deficiency

to petitioner determining a deficiency in his Federal income tax

for 1993 in the amount of $3,136, as well as an addition to tax

pursuant to section 6651(a)(1) in the amount of $784.

On April 7, 1997, the bankruptcy court issued an order of

discharge in petitioner's chapter 7 bankruptcy case.

On August 22, 1997, respondent issued notices of deficiency

to petitioner determining deficiencies in and additions to his

Federal income taxes for the taxable years and in the amounts as

follows:

 Additions to Tax 

 Year Deficiency Sec. 6651(a) Sec. 6654(a)

 1994 $4,162 $775.75 $154.91

 1995 10,146 2,254.50 482.15

 On September 6, 1997, the U.S. District Court for the

District of Arizona denied petitioner's appeal of the dismissal

of his chapter 13 bankruptcy case. 
- 4 -

 

2 At the time the petition was filed, petitioner resided

at Tucson, Arizona.

 

3 The notice of deficiency for 1993 was issued on Mar. 6,

1997--during the pendency of petitioner's bankruptcy petition

(continued...)

On September 8, 1997, petitioner filed a petition for

redetermination with the Court contesting the notices of

deficiency for the taxable years 1989, 1990, 1991, and 1993.2

The petition arrived at the Court in an envelope bearing a U.S.

Postal Service postmark date of September 4, 1997. On November

6, 1997, petitioner filed an amended petition contesting the

notices of deficiency for the taxable years 1989, 1990, 1991, 

1993, 1994, and 1995.

Respondent filed a motion to dismiss for lack of

jurisdiction and to strike as to the taxable years 1989, 1990,

1991, and 1993 on the ground that the petition was not filed

within the time prescribed in section 6213(f). Petitioner filed

a response to respondent's motion to dismiss and to strike

asserting that his petition was filed within the 150-day period

prescribed in section 6213(f). Petitioner contends that the 150-

day period should be measured from April 7, 1997--the date that

the bankruptcy court issued its order of discharge in his chapter

7 bankruptcy case. Respondent subsequently filed a reply to

petitioner's response conceding that the petition was timely

filed in respect of the notice of the deficiency for the taxable

year 1993.3 Nonetheless, respondent maintains that the petition
- 5 -

 

3(...continued)

under ch. 7. The petition contesting the notice of deficiency

for 1993 was timely mailed to the Court on Sept. 4, 1997, exactly

150 days after the bankruptcy court entered its order of

discharge with respect to petitioner's bankruptcy petition under

ch. 7. Sec. 6213(f).

is untimely with respect to the notices of deficiency for the

taxable years 1989, 1990, and 1991.

This matter was called for hearing at the Court's motions

session in Washington, D.C. Counsel for respondent appeared at

the hearing and offered argument in support of the pending

motion. Although petitioner did not appear at the hearing, he

did file a written statement with the Court pursuant to Rule

50(c).

Discussion

The Tax Court is a court of limited jurisdiction, and we may

exercise our jurisdiction only to the extent authorized by

Congress. Naftel v. Commissioner, 85 T.C. 527, 529 (1985). Our

jurisdiction to redetermine a deficiency depends upon the

issuance of a valid notice of deficiency and a timely filed

petition. Rule 13(a), (c); Monge v. Commissioner, 93 T.C. 22, 27

(1989); Normac, Inc. v. Commissioner, 90 T.C. 142, 147 (1988).

Section 6212(a) expressly authorizes the Commissioner, after

determining a deficiency, to send a notice of deficiency to the

taxpayer by certified or registered mail. The taxpayer, in turn,

generally has 90 days from the date the notice of deficiency is
- 6 -

mailed to file a petition in this Court for a redetermination of

the deficiency. Sec. 6213(a).

An exception to the normal 90-day filing period arises where

the taxpayer has filed a petition for relief under the Bankruptcy

Code. In particular, 11 U.S.C. section 362(a)(8) (1994) provides

in pertinent part:

 (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 

 proceeding before the United States Tax Court concerning 

 the debtor.

In short, the filing of a bankruptcy petition invokes the

automatic stay which precludes the commencement or continuation

of proceedings in this Court. Kieu v. Commissioner, 105 T.C.

387, 391 (1995); Allison v. Commissioner, 97 T.C. 544, 545

(1991).

 The period that the automatic stay remains in effect is

prescribed in 11 U.S.C. section 362(c) (1994) as follows:

(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--
- 7 -

 

4 11 U.S.C. sec. 362(b)(9) (1994) provides in pertinent

part:

 (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),--

 * * * * * * * 

 

 (B) of the issuance to the debtor

 by a governmental unit of a notice 

 of tax deficiency;

(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.

In sum, unless relief from the automatic stay is granted by order

of the bankruptcy court, see 11 U.S.C. sec. 362(d), the automatic

stay generally remains in effect until the earliest of the

closing of the case, the dismissal of the case, or the grant or

denial of a discharge. 11 U.S.C. sec. 362(c)(2); see Allison v.

Commissioner, supra at 545; Smith v. Commissioner, 96 T.C. 10, 14

(1991); Neilson v. Commissioner, 94 T.C. 1, 8 (1990).

Although respondent is free to issue a notice of deficiency

to a taxpayer who has filed a bankruptcy petition, see 11 U.S.C.

sec. 362(b)(9) (1994),4 the normal 90-day period for filing a

timely petition with this Court is suspended for the period
- 8 -

during which the taxpayer is prohibited by reason of the

automatic stay from filing a petition in this Court and for 60

days thereafter. Sec. 6213(f); Olson v. Commissioner, 86 T.C.

1314, 1318-1319 (1986); McClamma v. Commissioner, 76 T.C. 754,

757 (1981).

In McClamma v. Commissioner, supra, the Court was presented

with the question of the proper computation of the expanded

period for filing a timely petition with the Court pursuant to

section 6213(f) where the taxpayers had filed a bankruptcy

petition after receiving a notice of deficiency. In particular,

the Commissioner issued a notice of deficiency to John and

Catherine McClamma on February 15, 1980. On March 3, 1980, John

McClamma filed a bankruptcy petition under chapter 7 of the

Bankruptcy Code. On April 18, 1980, while John McClamma's

bankruptcy case was pending, the taxpayers filed a joint petition

for redetermination with the Court. On September 19, 1980, the

bankruptcy court issued a discharge order in John McClamma's

bankruptcy case. The Commissioner subsequently filed a motion to

dismiss for lack of jurisdiction as to John McClamma on the

grounds that: (1) John McClamma was barred by the bankruptcy

automatic stay from filing a petition for redetermination with

the Court on April 18, 1980; and (2) John McClamma did not file a

timely petition following his discharge in bankruptcy.

 In granting the Commissioner's motion to dismiss, the Court

concluded that the automatic stay barred John McClamma from
- 9 -

filing a petition with the Court on April 18, 1980. McClamma v.

Commissioner, supra at 757. The Court further concluded that,

following his discharge in bankruptcy, John McClamma failed to

file a petition with the Court within the time prescribed in

section 6213(f). That Court stated:

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). Since the 90-day period was stayed by the

filing of a bankruptcy petition after having run 17

days, 73 days plus the 60 days allowed after the

automatic stay was lifted yields 133 days. We agree

with respondent that John had until January 30, 1981

(133 days from the date of discharge in bankruptcy,

Sept. 19, 1980), to file a new petition in this Court

to contest his Federal income tax liability for 1977. 

[Fn. refs. omitted.]

Id. at 757-758; see Ash v. Commissioner, T.C. Memo. 1989-367.

The parties in the instant case disagree whether the

petition was timely filed with respect to the notices of

deficiency for the taxable years 1989, 1990, and 1991. 

Respondent contends that, by virtue of petitioner's bankruptcy

filings (and the resulting suspensions of the running of the 90-

day period for filing a timely petition with the Court pursuant

to section 6213(f)), the time for filing a timely petition with

the Court expired on June 23, 1997. Petitioner counters that his

petition was timely filed on the ground that section 6213(f)

served to extend the period for filing a petition to September 4,

1997--150 days after the date that the bankruptcy court entered
- 10 -

its discharge order in his chapter 7 bankruptcy case. We agree

with respondent.

A review of the relevant dates is as follows:

June 14, 1991------Chapter 13 bankruptcy petition

February 21, 1992--Notice of deficiency for 1989

June 23, 1993------Notice of deficiency for 1990, 1991

July 24, 1996------Chapter 13 bankruptcy dismissed

December 6, 1996---Chapter 7 bankruptcy petition (135

 days from July 24, 1996)

April 7, 1997------Order of discharge of Chapter 7

August 22, 1997----Notice of deficiency for 1994, 1995

September 8, 1997--Petition filed for 1989-1991 and 1993

On June 14, 1991, petitioner filed a bankruptcy petition

under chapter 13 of the Bankruptcy Code. On February 21, 1992,

respondent issued a notice of deficiency to petitioner for the

taxable year 1989. On June 23, 1993, respondent issued a notice

of deficiency to petitioner for the taxable years 1990 and 1991. 

Because petitioner's bankruptcy petition under chapter 13 was

pending on the dates that the notices of deficiency for 1989,

1990, and 1991 were issued, it follows that petitioner was barred

from filing a petition for redetermination with the Court by

virtue of the automatic stay imposed under 11 U.S.C. section

362(a)(8). Further, pursuant to section 6213(f), the 90-day

statutory period for filing a timely petition with the Court was

suspended while the automatic stay remained in effect and for 60

days thereafter.

On July 24, 1996, the bankruptcy court dismissed

petitioner's bankruptcy petition under chapter 13, thereby

terminating the automatic stay. See 11 U.S.C. sec. 362(c)(2)(B);
- 11 -

Allison v. Commissioner, 97 T.C. at 545. As of July 24, 1996, by

operation of section 6213(f), petitioner had a total of 150 days

to file a timely petition with the Court contesting the notices

of deficiency for 1989, 1990, and 1991. In particular,

petitioner enjoyed the 60-day suspension period prescribed in

section 6213(f), plus the normal 90-day filing period prescribed

in section 6213(a). 

During the ensuing period, petitioner did not file a

petition for redetermination with the Court. Nonetheless, on

December 6, 1996, petitioner filed a bankruptcy petition under

chapter 7 of the Bankruptcy Code. As of December 6, 1996, 135

days had elapsed since July 24, 1996--the date that the

bankruptcy court dismissed petitioner's bankruptcy petition under

chapter 13, leaving petitioner with 15 days to file a timely

petition with the Court pursuant to section 6213(f). However, as

a result of the filing of petitioner's bankruptcy petition under

chapter 7, petitioner again was barred from filing a petition for

redetermination with the Court by virtue of the automatic stay

imposed under 11 U.S.C. section 362(a)(8). Further, the

remaining 15-day period that petitioner had for filing a timely

petition with the Court to contest the notices of deficiency for

1989, 1990, and 1991 was suspended pursuant to section 6213(f). 

 On April 7, 1997, the bankruptcy court entered an order of

discharge in petitioner's chapter 7 bankruptcy case, which served

to terminate the automatic stay imposed under 11 U.S.C. section
- 12 -

 

5 Because the last day for filing a timely petition with

the Court was Saturday, June 21, 1997, the period was extended to

Monday, June 23, 1997, pursuant to sec. 6213(a). 

362(a)(8). See 11 U.S.C. sec. 362(c)(2)(C). Upon the

termination of the automatic stay on April 7, 1997, petitioner

had a total of 75 days to file a timely petition with the Court

with respect to the notices of deficiency for 1989, 1990, and

1991. In particular, petitioner again enjoyed the 60-day

suspension period prescribed in section 6213(f), plus 15 days

representing the unexpired portion of the filing period that

remained prior to the date that petitioner filed his bankruptcy

petition under chapter 7. Consistent with the foregoing, the

period for filing a timely petition for redetermination with the

Court with respect to the notices of deficiency for the taxable

years 1989, 1990, and 1991 expired on Monday, June 23, 1997.5

Petitioner's argument that he was entitled to file his

petition contesting the notices of deficiency for 1989, 1990, and

1991 within 150 days after the bankruptcy court issued its order

of discharge in his chapter 7 bankruptcy case is simply contrary

to the plain terms of section 6213(f) and this Court's holding in

McClamma v. Commissioner, supra.

 In accordance with the foregoing, it follows that the

petition filed in this case on September 8, 1997, was not timely

filed with respect to the notices of deficiency for 1989, 1990,

and 1991. Because respondent now concedes that the petition was
- 13 -

 

6 Also there is no question that the amended petition was

timely as to the 1994 and 1995 tax years.

timely filed with respect to the notice of deficiency for 1993,6

we will grant respondent's motion to dismiss for lack of

jurisdiction and to strike as to the petition and amended

petition only insofar as respondent moves to dismiss and to

strike as to the taxable years 1989, 1990, and 1991.

 To reflect the foregoing,

 An order granting respondent's 

motion to dismiss for lack of

jurisdiction and to strike will be

issued insofar as respondent moves to

dismiss and to strike as to the

taxable years 1989, 1990, and 1991.