                      110 T.C. No. 20



                UNITED STATES TAX COURT



   JUDITH K. GUERRA, A.K.A. JUDITH HARVEY, Petitioner v.
     COMMISSIONER OF INTERNAL REVENUE, Respondent


Docket No. 4225-97.                Filed April 8, 1998.


     On June 25, 1992, P filed a bankruptcy petition
under chapter 13 of the Bankruptcy Code. On Dec. 16,
1996, R issued a notice of deficiency to P for the
taxable year 1993. On Jan. 21, 1997, the bankruptcy
court issued an order dismissing P's case pursuant to
11 U.S.C. sec. 1307 (1994). On Jan. 31, 1997, P filed
a motion for reconsideration with the bankruptcy court.
On Feb. 12, 1997, the bankruptcy court issued an order
granting P's motion for reconsideration and reinstating
petitioner's case. On Mar. 3, 1997, petitioner filed a
petition for redetermination with the Court. R filed a
motion to dismiss for lack of jurisdiction on the
ground that the petition was filed in violation of the
automatic stay imposed under 11 U.S.C. sec. 362(a)(8)
(1994).

     Held: The bankruptcy court's order dated Jan. 21,
1997, dismissing P's bankruptcy case pursuant to 11
U.S.C. sec. 1307 (1994), served to terminate the
automatic stay imposed under 11 U.S.C. sec.
362(a)(8)(1994). See 11 U.S.C. sec. 362(c)(2)(C)
(1994). Held, further: The bankruptcy court's order
                                 - 2 -

     dated Feb. 12, 1997, although vacating the bankruptcy
     court's order dated Jan. 21, 1997, is silent respecting
     the status of the automatic stay, and, thus, the
     automatic stay was not reinstated. See Allison v.
     Commissioner, 97 T.C. 544 (1991). Held, further: The
     petition filed herein was not filed in violation of the
     automatic stay, and P properly invoked this Court's
     jurisdiction. Sec. 6213(f), I.R.C.

     Judith K. Guerra, pro se.

     Robert A. Varra and Peter K. Reilly, for respondent.


                                OPINION

     DAWSON, Judge:     This case was assigned to Chief Special

Trial Judge Peter J. Panuthos pursuant to the provisions of

section 7443A(b)(3) and Rule 182.1       The Court agrees with and

adopts the opinion of the Special Trial Judge, which is set forth

below.

                  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.     The question to be decided is whether the petition

for redetermination was filed with the Court in violation of the

so-called automatic stay imposed pursuant to 11 U.S.C. sec.

362(a)(8) (1994).

Background

         On June 25, 1992, petitioner and Carlos Manuel Guerra,


     1
        All section references are to the Internal Revenue Code
in effect for the year in issue, unless otherwise indicated. All
Rule references are to the Tax Court Rules of Practice and
Procedure.
                                - 3 -

petitioner's husband, filed a voluntary petition for relief under

chapter 13 of the Bankruptcy Code with the U.S. Bankruptcy Court

for the District of Colorado.

     On December 16, 1996, respondent mailed a notice of

deficiency to petitioner determining a deficiency in her Federal

income tax for 1993 in the amount of $7,813, as well as additions

to tax in the amounts of $1,819 and $302.30 pursuant to sections

6651(a) and 6654, respectively.

     On January 21, 1997, the bankruptcy court entered an order

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

case.2   The bankruptcy court's order states in pertinent part:

          THIS MATTER having come before the Court upon the
     Motion to Dismiss the Chapter 13 case filed by the
     Standing Chapter 13 Trustee, it is:

           ORDERED that the within case be and is hereby
     dismissed pursuant to the provisions of 11 USC Section
     1307.

          FURTHER ORDERED that, in accordance with 11 USC
     Section 349(b)(1) and (2), any transfer avoided under
     Section 522, 544, 545, 547, 548, 549 or 724(a) of Title
     11 or preserved under Section 510(c)(2), 522(i)(2) or
     551 of Title 11 is reinstated; any lien voided under
     Section 506(d) of Title 11 is reinstated; and any
     order, judgment, or transfer ordered under Section
     522(i)(1), 542, 550, or 553 of Title 11 is vacated.

          FURTHER ORDERED that funds in the hand of the
     Standing Chapter 13 Trustee in said case, if any, which
     are lawfully payable to the creditors will be
     distributed by said Trustee within ninety (90) days
     from the date of this Order.


     2
        It appears that the bankruptcy trustee filed the motion
to dismiss on the ground that petitioner had failed to make a
payment due under the chapter 13 plan.
                               - 4 -


The order does not impose any stay of proceedings and does not

mention the status of the automatic stay imposed under 11 U.S.C.

sec. 362(a)(8) (1994).

     On January 31, 1997, petitioner and her husband filed a

motion to reconsider with the bankruptcy court regarding the

dismissal of their case.   On February 12, 1997, the bankruptcy

court issued an order granting petitioner's motion to reconsider

as follows:

          THIS MATTER comes before the Court on Debtor's
     Motion to Reconsider Order Dismissing Chapter 13 Case
     entered January 21, 1997. The Court, having reviewed
     the file and being advised in the premises, hereby
     ORDERS as follows:

          1.   The Motion to Reconsider is GRANTED;

          2. The Order entered January 21, 1997, dismissing
     this case is VACATED;

          3.   This case is hereby REINSTATED.

          4. Debtor will be current with the Trustee within
     ten days from the date of this order.

The order does not mention the status of the automatic stay

imposed under 11 U.S.C. sec. 362(a)(8) (1994).

     On March 3, 1997, petitioner filed a petition for

redetermination with the Court.3   In response, respondent filed a

Motion to Dismiss for Lack of Jurisdiction asserting that the

petition was filed in violation of the automatic stay imposed

under 11 U.S.C. sec. 362(a)(8) (1994).

     3
         At the time the petition was filed, petitioner resided
at Denver, Colorado.
                                   - 5 -

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. & Normac International 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

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. sec. 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 a
     proceeding before the United States Tax Court
     concerning the debtor.

In short, the filing of a bankruptcy petition invokes the
                                      - 6 -

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).

     Although respondent is free to issue a notice of deficiency

to a taxpayer that 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

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), and cases cited therein.

     The period that the automatic stay remains in effect is

prescribed in 11 U.S.C. sec. 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

     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;
                               - 7 -

            (2) the stay of any other act under subsection
         (a) of this section continues until the earliest
         of--

               (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) (1994), the

automatic stay generally remains in effect until the earliest of

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

denial of a discharge, 11 U.S.C. sec. 362(c)(2) (1994); 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).

     In the instant case, respondent issued a notice of

deficiency to petitioner on December 16, 1996, during the

pendency of petitioner's bankruptcy case.   See 11 U.S.C. sec.

362(b)(9) (1994).   There is no dispute that petitioner was

precluded by the automatic stay imposed under 11 U.S.C. sec.

362(a)(8) (1994) from filing a petition with this Court at the

time the notice of deficiency was issued.

     The issue to be decided is whether the automatic stay

remained in effect in this case following the dismissal and

subsequent reinstatement of petitioner's bankruptcy case.     If the

automatic stay remained in effect, then the petition filed in
                               - 8 -

this case on March 3, 1997, must be dismissed.    On the other

hand, if the automatic stay was terminated, it follows that the

petition was timely filed pursuant to section 6213(f)(1).

     Respondent contends that the automatic stay remained in

effect at all times in this case, notwithstanding the dismissal

of petitioner's bankruptcy case on January 21, 1997.    First,

respondent maintains that, by virtue of Bankruptcy rule 9023,5

petitioner's motion to reconsider, filed with the bankruptcy

court within 10 days of the issuance of the dismissal order, is

treated as a motion under rule 59 of the Federal Rules of Civil

Procedure.   Respondent contends that, under the latter rule, the

bankruptcy court's dismissal order did not become final.6

     5
        Bankruptcy rule 9023 states: "Rule 59 F.R.Civ.P.
applies in cases under the Code, except as provided in Rule
3008." 11 U.S.C. App. at 969 (1994).
     6
         Fed. R. Civ. P. 59 states in pertinent part:

          (a) Grounds. A new trial may be granted to all or
     any of the parties and on all or part of the issues
     * * *(2) in an action tried without a jury, for any of
     the reasons for which rehearings have heretofore been
     granted in suits in equity in the courts of the United
     States. On a motion for a new trial in an action tried
     without a jury, the court may open the judgment if one
     has been entered, take additional testimony, amend
     findings of fact and conclusions of law or make new
     findings and conclusions, and direct the entry of a new
     judgment.

          (b) Time for Motion. A motion for a new trial
     shall be served not later than 10 days after the entry
     of the judgment.

     *        *         *          *          *           *

                                                     (continued...)
                                 - 9 -

Respondent reasons that, because the dismissal order never became

final, and consistent with the bankruptcy court's subsequent

decision to reinstate petitioner's bankruptcy case, the automatic

stay remained in effect at all times.    In the alternative,

respondent contends that the bankruptcy court's February 12, 1997

order reinstating petitioner's case caused the automatic stay to

be reinstated on that date.

     Contrary to respondent's position, we conclude that the

bankruptcy court's January 21, 1997, order of dismissal

terminated the automatic stay.    Under the circumstances, we are

not satisfied that petitioner's motion for reconsideration

precluded the bankruptcy court's order of dismissal from becoming

final insofar as that order served to terminate the automatic

stay. Respondent cites no direct authority for the proposition

that the filing of petitioner's motion for reconsideration with

the bankruptcy court caused the automatic stay to remain in

effect.   On the other hand, at least one appellate court has held

that the automatic stay terminated immediately upon the dismissal

of the debtor's bankruptcy case for failure to properly

prosecute, notwithstanding that the debtor undertook to file a

motion for reconsideration with the bankruptcy court within 10

days of the order of dismissal.    See In re De Jesus Saez, 721


     6
      (...continued)
          (e) Motion to Alter or Amend Judgment. A motion
     to alter or amend the judgment shall be served not
     later than 10 days after entry of the judgment.
                             - 10 -

F.2d 848 (1st Cir. 1983)(applying Bankruptcy rule 762--the

predecessor to Bankruptcy rule 7062);7 see also In re Franklin

Mortgage & Investment Co., 144 Bankr. 194, 194-195 (Bankr. D.C.

1992); In re Barnes, 119 Bankr. 552, 555 (S.D. Ohio 1989); In re

Weston, 101 Bankr. 202, 204-206 (Bankr. E.D. Cal. 1989), affd.

without published opinion 123 Bankr. 466 (B.A.P. 9th Cir. 1991),

affd. without published opinion 967 F.2d 596 (9th Cir. 1992); In

re Bluford, 40 Bankr. 640, 644 (Bankr. W.D. Mo. 1984).

     Respondent has failed to reconcile respondent's

interpretation of Bankruptcy rule 9023 with the interpretation of


     7
       Bankruptcy rule 7062 states in pertinent part: "Rule 62 FR
Civ P applies in adversary proceedings. An order granting relief
from an automatic stay provided by section 362 * * * shall be
[one of the] additional exceptions to Rule 62(a)." Fed. R. Civ.
P. 62 provides (with exceptions) that a judgment generally shall
not be enforced until 10 days after its entry.

   3 Norton, Bankruptcy Law and Practice, sec. 78.06 (1992)
discusses the effect of Bankruptcy rule 7062 as follows:

          By the terms of [Bankruptcy] Code section 362(c),
     the automatic stay terminates at the time a bankruptcy
     case is dismissed. A request for dismissal of a
     bankruptcy case, filed by a party other than the
     debtor, will generally be in the form of a motion and
     will constitute a contested matter under Bankruptcy
     rule 9014. As provided in that Rule, Bankruptcy rule
     7062 applies in contested matters, and thus if an order
     of dismissal is "an order granting relief from an
     automatic stay" as described in Bankruptcy rule 7062,
     then it can be argued that an order for dismissal is
     not subject to the 10-day stay of proceedings described
     in Rule 62(a) of the Federal Rules of Civil Procedure.
     Given that an order of dismissal has the effect of
     terminating the automatic stay, it is arguable that a
     dismissal order falls within the terms of Bankruptcy
     rule 7062 and constitutes immediate relief from the
     stay. [Fn. ref. omitted.]
                              - 11 -

Bankruptcy rule 7062 set forth in the authorities cited above.

Based upon the record presented, we hold that the bankruptcy

court's January 21, 1997, order of dismissal terminated the

automatic stay.

     We likewise reject respondent's alternative argument that

the automatic stay was reinstated at the same time that the

bankruptcy court granted petitioner's motion for reconsideration

and reinstated petitioner's case.   As previously discussed, the

automatic stay is imposed upon the filing of a bankruptcy

petition and generally is terminated when the bankruptcy case is

closed or dismissed or a discharge is granted or denied.

     The Court has previously considered whether the automatic

stay was reinstated in circumstances analogous to those presented

in the instant case.   In Kieu v. Commissioner, 105 T.C. 387

(1995), the Court held that the automatic stay terminated when

the bankruptcy court entered an order granting summary judgment

that the debtors/taxpayers were not entitled to a discharge of

their debts.   The Court further held that the automatic stay was

not reinstated when the bankruptcy court vacated its earlier

order.   Similarly, in Allison v. Commissioner, 97 T.C. 544

(1991), the Court held that the automatic stay terminated when

the bankruptcy court granted the debtor/taxpayer a discharge of

indebtedness and that the automatic stay was not reinstated when

the bankruptcy court subsequently reopened the case.   See Moody

v. Commissioner, 95 T.C. 655 (1990) (automatic stay terminated
                              - 12 -

upon bankruptcy court's confirmation of a chapter 11 plan and

automatic stay was not reinstated despite the bankruptcy court's

decision to retain jurisdiction over the case).

     Respondent argues that the above-referenced cases, and

particularly Kieu v. Commissioner, supra, can be factually

distinguished from the present case insofar as petitioner's

bankruptcy case was reinstated before petitioner filed her

petition for redetermination with the Court.   Respondent relies

on In re Diviney, 211 Bankr. 951 (Bankr. N.D. Okla. 1997), for

the proposition that the bankruptcy court's reinstatement of

petitioners' bankruptcy case caused the automatic stay to be

reinstated.

     Although we agree that In re Diviney, supra, stands for the

proposition cited by respondent, we are not persuaded that we are

obliged to find that the automatic stay was reinstated in this

case.   To the contrary, we adhere to Allison v. Commissioner,

supra at 546-547, and specifically Kieu v. Commissioner, supra at

395, in which we held:

          While an argument might be made that the
     bankruptcy court's intent to reinstate the automatic
     stay in the present case may be inferred from the fact
     that the bankruptcy court vacated its order [granting
     the creditors' motion for summary judgment], we decline
     to decide the issue presented in this case on such an
     assumption. We are mindful that the automatic stay
     respecting the commencement or continuation of
     proceedings in this Court was adopted in part to avert
     duplicative and inconsistent litigation over tax
     issues. Halpern v. Commissioner, 96 T.C. 895, 902
     (1991). Given the consequences, however, that follow
     from a determination respecting the status of the
     automatic stay, the soundest approach is to adhere to
                              - 13 -

     the reasoning in Allison v. Commissioner, supra.
     Simply stated, where a bankruptcy court has taken
     action that serves to terminate the automatic stay
     under 11 U.S.C. sec. 362(c)(2), the automatic stay
     remains terminated absent an express indication from
     the bankruptcy court to the contrary. Certainly, if a
     bankruptcy court intends to exercise its jurisdiction
     to resolve the issues surrounding petitioners' tax
     liability, that court has the means to bring about a
     stay of the proceedings in this Court. See Allison v.
     Commissioner, supra at 547 (referring to 11 U.S.C. sec.
     105 (1994), which permits the bankruptcy court to issue
     any order necessary to carry out title 11).

     In accordance with the foregoing, we hold that the automatic

stay was terminated as of January 21, 1997, the date that the

bankruptcy court issued its order dismissing petitioner's case.

Further, we hold that the automatic stay was not revived when the

bankruptcy court reinstated petitioner's case on February 12,

1997.   Because the automatic stay was not in effect on the date

that petitioner filed her petition for redetermination with the

Court, we conclude that petitioner properly invoked the Court's

jurisdiction, and we will deny respondent's Motion to Dismiss for

Lack of Jurisdiction.

     To reflect the foregoing,

                                      An order denying respondent's

                                 Motion to Dismiss for Lack of

                                 Jurisdiction will be issued.
