¶1concurring: I agree with the majority that respondent’s motion to dismiss the petition should be denied, but for somewhat different reasons.
¶2It is my impression from reading the legislative history of section 6871, I.R.C. 1954, that in enacting the provisions contained therein Congress was simply providing the Commissioner of Internal Keve-nue witli a procedure for immediate assessment of deficiencies in tax when the taxpayer had been adjudicated a bankrupt or is in receivership so the Commissioner can have his claim adjudicated by the bankruptcy court along with other claims against the bankrupt’s estate and have his adjudicated claim paid out of the bankrupt’s estate in order of its priority. Without such a provision, the Commissioner would either have to make a jeopardy assessment or issue a statutory notice of deficiency to the taxpayer and await the outcome of the Tax Court proceeding before he could make an assessment of the deficiency. By that time the bankrupt’s estate may have been distributed in payment of other claims and the Commissioner would be unable to collect this tax due except from after-acquired assets.
¶3The procedure provided by section 6871, when read together with the provisions of the bankruptcy law, contemplates that the district director will not only make an immediate assessment of the deficiency but will also file a claim for the tax due within 6 months after the first meeting of creditors, as provided in section 57 (n) of the Bankruptcy Act (11 U.S.C. sec. 98 (n)). If this is done the tax claim constitutes a preferred claim under section 64 of the Bankruptcy Act. If a timely claim is not filed, the tax claim would not ordinarily participate in the distribution of assets from the estate in bankruptcy. This would not bar collection of the claim, if properly adjudicated, against after-acquired assets except with respect to taxes due more than 3 years prior to the bankruptcy. Sec. 17(a) (1), Bankruptcy Act. That the provisions of section 6871 contemplate not only the immediate assessment of the deficiency but also the filing of a claim in, and the adjudication of that claim by, the bankruptcy court, is clearly supported by the regulations issued by the Commissioner of Internal Revenue, sec. 301.6871 (a)-l and 301.6871 (a)-2(b), Proced. & Admin. Regs. See also Cohen v. Gross, 316 F. 2d 521 (C.A. 3, 1963). And certainly fair and equitable administration of the law suggests that if the Commissioner follows the procedure provided in section 6871 and makes an immediate assessment, he should also file a claim and have the claimed deficiency adjudicated by the bankruptcy court.
¶4In my view the purpose of Congress in enacting section 6871 was to provide the Commissioner of Internal Revenue with an alternative procedure to that provided in section 6213, I.R.C. 1954, for adjudication and assessment of tax claims in the case of bankruptcy to protect the revenues. However, if, as here, the Commissioner does not follow that procedure but issues a notice of deficiency instead, and as a result the tax claim is never assessed during the bankruptcy and is never adjudicated by the bankruptcy court, in my opinion section 6871 becomes inoperative with respect to the bankrupt taxpayer and the usual procedures for adjudication and assessment of tax deficiencies must be followed. As said in Newberg v. United States, 187 F. Supp. 158 (S.D.N.Y. 1960), affirmed per curiam 296 F. 2d 152 (C.A. 2, 1961), when tbe Commissioner has a claim against a bankrupt, be “can follow either course, the filing of a claim within the statutory period and participation in the assets of the estate, or the proceeding by subsequent action against after-acquired assets.”
¶5When the Commissioner chooses to follow the first course, section 6871 provides the exclusive ground rules and no petition may be filed in the Tax Court. Instead, the bankruptcy court is the exclusive forum for determining both the amount of the tax and the distribution of the assets among the creditors. Cohen v. Gross, supra. If, however, the Commissioner chooses to follow the second course and collect his claim from after-acquired assets rather than the bankruptcy estate, section 6871 has no applicability. When the Commissioner’s claim is asserted after the bankruptcy proceedings are closed, Pearl A. Orenduff, 49 T.C. 829, or is not provable in the bankruptcy court, John V. Prather, 50 T.C. 445, section 6871 does not bar the taxpayer’s proceeding in the Tax Court. Similarly, where, as here, the Commissioner asserts his claim too late for adjudication in the bankruptcy court, I think he must issue a notice of deficiency as provided in section 6213, I.R.C. 1954, before he can assess the tax, and the taxpayer may file a petition in the Tax Court. I see no reason why more significance should be given to the words “no petition … shall be filed with the Tax Court after the adjudication of bankruptcy” contained in section 6871(b), than to the words “any deficiency … determined by the Secretary or his delegate in respect of a tax … shall … be immediately assessed,” contained in section 6871 (a). I think under the scheme of the statutes only compliance with the language of section 6871 (a) can trigger application of the provisions of section 6871 (b). I find nothing in the statutes which specifically denies the Commissioner the right to issue a statutory notice of deficiency during the pendency of a bankruptcy proceeding, and I cannot conceive of Congress intending to deny the taxpayer the right to file a petition in the Tax Court if the notice of deficiency is issued, thus forcing him to lose his case by default. Consequently, I would deny respondent’s motion to dismiss.
¶6Unfortunately, in the relatively few cases in which this issue has been presented to this Court, the taxpayer has not been represented by counsel, as was the case here, as a result of which the Court does not have before it all of the issues and arguments that might be presented by a taxpayer represented by competent counsel. In this case, for example, no issue was raised as to the validity of the notice of deficiency. However, if it is concluded that section 6871 and the specific language quoted above must be given full effect in any bankruptcy situation, I would hold that respondent must follow the procedure provided in section 6871(a) and cannot issue a valid notice of deficiency during tlie pendency of the bankruptcy proceeding. In such event the notice of deficiency issued to petitioner in this case would be invalid, and upon a proper motion by petitioner this proceeding could be dismissed on the ground that the notice of deficiency was invalid; respondent would then have to either proceed under the provisions of section 6871(a) or wait until the bankruptcy proceeding is closed and then issue a notice of deficiency if it is not otherwise too late to do so.