51 TC 970 - Stevenson v. Commissioner

¶1OPINION

Drennen, Judge:

¶2On May 3,1968, respondent mailed a joint notice of deficiency to petitioners wherein deficiencies were determined in petitioners’ income tax and additions to tax for the years 1961 and 1962.

¶3On October 31, 1967, petitioner Cherie Fenske Stevenson filed a voluntary petition in bankruptcy in the U.S. District Court for the Western District of Missouri. On December 26, 1967, Cherie Fenske Stevenson was granted a discharge in that bankruptcy proceeding and the proceeding was closed and terminated on January 24, 1968.

¶4On July 8, 1968, petitioner Glenn E. Stevenson filed a voluntary petition in bankruptcy in the U.S. District Court for the Western District of Missouri. On September 3, 1968, Glenn E. Stevenson was granted a discharge in that bankruptcy proceeding and the proceeding was closed and terminated on September 4,1968.1

¶5On July 11, 1968, petitioners filed a joint petition for redetermination of the deficiencies in their income taxes and additions to tax for the years 1961 and 1962.

¶6On August 29, 1968, respondent filed a motion to dismiss the petition for lack of jurisdiction on the grounds that the petition was filed in this case after both petitioners had been adjudicated bankrupt, relying on the provisions of section 6871 (b) of the Internal Revenue Code of 1954. A hearing on the motion was originally set for October 2, 1968. Petitioners filed no objection to respondent’s motion to dismiss and did not appear at tlie Rearing.2 However, respondent requested and was granted permission to file a memorandum in support of liis position and to argue tlie motion orally because he considered the matter to be of importance and wanted the Court to reconsider its recent rulings in Pearl A. Orenduff, 49 T.C. 329, and John V. Prather, 50 T.C. 445. Respondent’s memorandum was filed and further oral argument by respondent was heard on January 15, 1969, after which the Court took the motion under advisement.

¶7Respondent has not assessed the taxes or additions to tax here involved and did not file a claim for those taxes and additions to tax in either of the above-mentioned bankruptcy proceedings.

¶8On the authority of, and for the reasons stated in both the majority and concurring opinions in, Samuel J. King, 51 T.C. 851 (1969), and the opinion in Pearl A. Orenduff, supra, which cases we consider to be controlling here, respondent’s motion to dismiss is denied.

¶9An appropriate order will be entered.

¶10 Both of the bankruptcy proceedings appear to have been closed prior to the expiration of the 6 months within which creditors would have the right to file claims under the bankruptcy law.

¶11 The statute of limitations was raised as a defense for both years in the petition, but that issue is not before us at this stage of the proceedings; nor is the applicability of sec. 35 of the Bankruptcy Act, as amended by Pub. L. 89 — 496 (July 5, 1966), 11 U.S.C. sec. 35.