Opinion
2736-23
02-09-2024
SHENITA PORTER, Petitioner v. COMMISSIONER OF INTERNAL REVENUE, Respondent
ORDER
Patrick J. Urda Judge
This case is currently calendared for trial at the Court's Jackson, Mississippi trial session, scheduled to begin April 29, 2024.
On March 6, 2023, petitioner Shenita Porter filed a petition in this case contesting an IRS notice of deficiency dated December 5, 2022, for the taxable year 2020. On January 23, 2024, the Commissioner filed two motions to dismiss for lack of jurisdiction. [Docs. 10, 11. It appears that these motions are substantively duplicative, except there were additional redactions in the one filed at docket entry #11. We will strike docket entry #10 from the Court's record and address the motion filed at docket entry #11 below.
"Doc." references are to the documents in this case as numbered by the Clerk of this Court. Unless otherwise indicated, statutory references are to the Internal Revenue Code, Title 26 U.S.C. (I.R.C), in effect at all relevant times.
The Commissioner's motion to dismiss for lack of jurisdiction requests that the Court dismiss this case on the ground the petition was filed in violation of the automatic stay provisions of 11 U.S.C. section 362(a)(8). In the motion, the Commissioner states that Ms. Porter filed a voluntary petition with the United States Bankruptcy Court for the Southern District of Mississippi under 11 U.S.C Chapter 13 on September 1, 2022, prior to the filing of the petition in this case and attached as Exhibit A the bankruptcy court's docket record, evidencing her bankruptcy filing. 11 U.S.C. section 362(a) provides, in pertinent part, a petition filed under 11 U.S.C. section 301 triggers an automatic stay. Filing a voluntary petition with the United States Bankruptcy Court constitutes a petition filed under 11 U.S.C. section 301. A Tax Court petition filed while the automatic stay of 11 U.S.C. section 362(a)(8) is in place is invalid. See McClamma v. Commissioner, 76 T.C. 754 (1981). 11 U.S.C. section 362(a)(8) "prohibits a debtor-taxpayer from filing a petition in this Court during the imposition of the stay, which remains in effect until the bankruptcy proceedings are terminated or until the bankruptcy judge chooses to lift the stay." Id. at 757.
Section 6213(f)(1) of the Internal Revenue Code provides that the running of the 90-day period for filing a Tax Court petition is suspended during the time the automatic stay prohibits the filing of a Tax Court petition and for 60 days thereafter. The automatic stay is lifted upon the earlier of (1) the date the bankruptcy case is closed, (2) the date the bankruptcy case is dismissed, or (3) the date a bankruptcy discharge is granted or denied. 11 U.S.C. § 362(c)(2). Ms. Porter is reminded that once the automatic stay is terminated, she may file a new petition with the Court to dispute the notice of deficiency issued to her for 2020 within the time period as specified in section 6213(f)(1).
Upon due consideration and for cause, it is
ORDERED that the Commissioner's motion to dismiss for lack of prosecution filed at docket entry #10 is hereby deemed stricken from the Court's record. It is further
ORDERED that, on or before March 6, 2024, Ms. Porter shall file an objection, if any, to the Commissioner's motion to dismiss for lack of jurisdiction. Failure to comply with this Order may result in the granting of the Commissioner's motion and dismissal of this case.