                                           DENNIS KLEIN, PETITIONER v. COMMISSIONER                                  OF INTERNAL
                                                          REVENUE, RESPONDENT
                                                        Docket No. 1382–10.                        Filed July 27, 2010.

                                                  P filed a bankruptcy petition in December 2007 that the
                                               Bankruptcy Court dismissed in March 2009; and P filed a
                                               second bankruptcy petition in October 2009, 7 months after
                                               the Bankruptcy Court had dismissed his first case. Two weeks
                                               later R issued P a notice of deficiency for 2006. In January
                                               2010 (13 weeks after he filed his second bankruptcy petition
                                               and while the second bankruptcy case was still pending) P
                                               filed a petition in this Court for redetermination of the defi-
                                               ciency. After the Bankruptcy Court dismissed P’s second
                                               bankruptcy case, he filed a succession of four more bank-
                                               ruptcy petitions—three of which the Bankruptcy Court has
                                               dismissed; the latest case, his sixth, is still pending. Held:
                                               Pursuant to 11 U.S.C. sec. 362(c)(3) (2006), the automatic stay
                                               arising from P’s second bankruptcy petition terminated in
                                               November 2009—i.e., 30 days after P filed that bankruptcy
                                               petition. The stay therefore did not bar the commencement of
                                               P’s deficiency case under 11 U.S.C. sec. 362(a)(8), and this
                                               Court has jurisdiction to consider P’s deficiency case. Held,
                                               further, pursuant to 11 U.S.C. sec. 362(c)(4), no automatic
                                               stay arose following P’s third, fourth, fifth, and sixth bank-
                                               ruptcy petitions because P had two or more bankruptcy cases
                                               dismissed during the year before he filed each of those bank-
                                               ruptcy petitions. Therefore, 11 U.S.C. sec. 362(a)(8) does not
                                               stay the continuance of this deficiency case.

                                           Dennis Klein, pro se.
                                           Frederick C. Mutter, for respondent.

                                                                                   OPINION

                                        GUSTAFSON, Judge: By a statutory notice of deficiency
                                      dated October 26, 2009, the Internal Revenue Service (IRS)
                                      determined a deficiency of $1,201 in petitioner Dennis Klein’s
                                      166




VerDate 0ct 09 2002   10:56 May 29, 2013   Jkt 372897    PO 20009   Frm 00001   Fmt 3851   Sfmt 3851   V:\FILES\KLEIN.135   SHEILA
                                      (166)                           KLEIN v. COMMISSIONER                                         167


                                      2006 Federal income tax, with additions to tax totaling
                                      $438.37 pursuant to section 6651(a)(1) and (2) of the Internal
                                      Revenue Code (‘‘I.R.C.’’, 26 U.S.C.). Mr. Klein brought this
                                      case pursuant to I.R.C. section 6213(a), asking this Court to
                                      redetermine the deficiency and additions to tax. However,
                                      since December 2007 Mr. Klein has filed the following six
                                      petitions in the U.S. Bankruptcy Court for the Middle Dis-
                                      trict of Pennsylvania (hereinafter, ‘‘the Bankruptcy Court’’),
                                      five of which that court has dismissed: 1

                                                                                                                   Date
                                                   Docket No.                     Date filed                    dismissed
                                                 5:07–bk–53221                 Dec. 11, 2007                 Mar. 11, 2009
                                                 5:09–bk–08010                 Oct. 13, 2009                 Feb. 9, 2010
                                                 5:10–bk–01012                 Feb. 9, 2010                  Mar. 3, 2010
                                                 5:10–bk–01942                 Mar. 11, 2010                 Apr. 6, 2010
                                                 5:10–bk–02809                 Apr. 6, 2010                  May 25, 2010
                                                 5:10–bk–04614                 June 2, 2010                       ---

                                      Because those bankruptcy filings provoke questions about
                                      our jurisdiction over this case, we ordered the parties to show
                                      cause why the case should not be dismissed for lack of juris-
                                      diction. For the reasons explained below, we hold that the
                                      automatic stay imposed by 11 U.S.C. section 362(a)(8) does
                                      not deprive us of jurisdiction or prevent the continuation of
                                      proceedings here.

                                                                               Background
                                      Mr. Klein’s first two bankruptcy petitions
                                         On December 11, 2007, Mr. Klein filed a bankruptcy peti-
                                      tion—apparently his first—under Chapter 13 of the Bank-
                                      ruptcy Code. The Bankruptcy Court dismissed Mr. Klein’s
                                      first bankruptcy case on March 11, 2009.
                                         On October 13, 2009—i.e., seven months after the dis-
                                      missal of his first bankruptcy case—Mr. Klein filed a second
                                      bankruptcy petition under Chapter 13. Mr. Klein did not
                                      move the Bankruptcy Court to issue any order pertaining to
                                      the automatic stay. 2
                                        1 We take judicial notice of the records of these bankruptcy cases, pursuant to Rule 201 of

                                      the Federal Rules of Evidence.
                                        2 The Government also did not move the Bankruptcy Court to issue any order pertaining to

                                      the automatic stay. One creditor, apparently a bank holding a mortgage on Mr. Klein’s resi-
                                                                                                 Continued




VerDate 0ct 09 2002   10:56 May 29, 2013   Jkt 372897   PO 20009   Frm 00002   Fmt 3851   Sfmt 3851   V:\FILES\KLEIN.135   SHEILA
                                      168                135 UNITED STATES TAX COURT REPORTS                                        (166)


                                      Notice of deficiency and Tax Court petition
                                         On October 26, 2009, the IRS mailed to Mr. Klein the notice
                                      of deficiency for taxable year 2006. 3 On January 15, 2010
                                      (i.e., while his second bankruptcy petition was still pending,
                                      but more than 30 days after he filed his second bankruptcy
                                      petition), Mr. Klein filed his Tax Court petition commencing
                                      this case. He is the sole petitioner named in the petition. Mr.
                                      Klein resided in Pennsylvania when he filed his petition with
                                      this Court.
                                      Mr. Klein’s third, fourth, fifth, and sixth bankruptcy petitions
                                         On February 9, 2010, the Bankruptcy Court dismissed Mr.
                                      Klein’s second bankruptcy case (filed in October 2009); and
                                      on the same date Mr. Klein filed his third bankruptcy peti-
                                      tion under Chapter 13. The Bankruptcy Court dismissed that
                                      third case on March 3, 2010. On March 11, 2010, Mr. Klein
                                      filed his fourth bankruptcy petition under Chapter 13. On
                                      April 6, 2010, the Bankruptcy Court dismissed that fourth
                                      case (and denied a motion to reconsider the dismissal of his
                                      third case); and on the same date Mr. Klein filed his fifth
                                      bankruptcy petition. The Bankruptcy Court dismissed the
                                      fifth case on May 25, 2010; and Mr. Klein filed his sixth
                                      Chapter 13 petition on June 2, 2010. The bankruptcy trustee
                                      has filed a motion to dismiss that sixth case for failure to file
                                      a complete list of creditors; but as far as we know, the sixth
                                      case is still pending.

                                                                                Discussion
                                        Proceedings in this case overlap with bankruptcy pro-
                                      ceedings in two significant respects: First, Mr. Klein filed his
                                      petition here in January 2010—after the October 2009 filing
                                      of his second bankruptcy petition and before the Bankruptcy
                                      Court dismissed that second case in February 2010. Second,
                                      Mr. Klein’s sixth bankruptcy petition filed in June 2010 is
                                      dence, moved for relief from the automatic stay, filing the motion more than 30 days after Mr.
                                      Klein filed his second bankruptcy petition. The Bankruptcy Court did not rule on the bank’s
                                      motion for relief but effectively terminated the automatic stay when it dismissed the second case
                                      altogether in February 2010. See 11 U.S.C. sec. 362(c)(2); Lomagno v. Salomon Bros. Realty
                                      Corp., 429 F.3d 16, 17 (1st Cir. 2005).
                                        3 Under 11 U.S.C. section 362(b)(9)(B), a bankruptcy filing does not operate as a stay of ‘‘the

                                      issuance to the debtor by a governmental unit of a notice of tax deficiency’’. Consequently, the
                                      propriety of the IRS’s issuance of the notice of deficiency is not in question here.




VerDate 0ct 09 2002   10:56 May 29, 2013   Jkt 372897   PO 20009   Frm 00003   Fmt 3851   Sfmt 3851   V:\FILES\KLEIN.135   SHEILA
                                      (166)                           KLEIN v. COMMISSIONER                                         169


                                      apparently still pending. These overlaps raise questions
                                      about the automatic stay provisions of the bankruptcy law.
                                      I. The general rule
                                        Under 11 U.S.C. section 362(a), the filing of a bankruptcy
                                      petition—
                                      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 tax liability of a debtor who is an
                                      individual for a taxable period ending before the date of the order for relief
                                      under this title. [Emphasis added.]

                                      Thus, as a general rule, the filing of a bankruptcy petition
                                      gives rise to an automatic stay that bars the ‘‘commencement
                                      or continuation’’ of a Tax Court suit. If nonetheless a petition
                                      is filed with the Tax Court after a bankruptcy petition has
                                      been filed, then the automatic stay bars ‘‘commencement’’ of
                                      the Tax Court suit. In that circumstance the Tax Court lacks
                                      jurisdiction over the deficiency proceeding and must dismiss
                                      the case. Thompson v. Commissioner, 84 T.C. 645, 648
                                      (1985). If a Tax Court petition is timely filed before the bank-
                                      ruptcy petition is filed, then the automatic stay bars the
                                      ‘‘continuation’’ of the Tax Court case; and proceedings in the
                                      Tax Court normally are stayed until the case is closed or dis-
                                      missed or a discharge is granted or denied, see 11 U.S.C. sec.
                                      362(c)(2), or the stay is lifted by the bankruptcy court, see 11
                                      U.S.C. sec. 362(d).
                                         The automatic stay generally prevents the commencement
                                      or continuation of any proceedings in this Court—thereby
                                      vesting in the bankruptcy court the discretion to control the
                                      adjudication of tax liabilities. The bankruptcy court either
                                      can maintain the stay and redetermine the liability itself, see
                                      11 U.S.C. sec. 505(a), or can lift the stay and allow a Tax
                                      Court case to proceed, Halpern v. Commissioner, 96 T.C. 895,
                                      902 (1991). This fosters judicial economy by avoiding duplica-
                                      tive adjudication. 4
                                        4 The provisions in 11 U.S.C. section 362(c)(3) and (4) that terminate a stay or keep it from

                                      going into effect thereby create the possibility of duplicative proceedings in the Tax Court and
                                      the Bankruptcy Court (a circumstance that does not appear to be present here). However, in
                                      such an instance both parties in the Tax Court case would also be parties in the bankruptcy
                                      case, and they would therefore have the opportunity to advise each court that the other court
                                                                                                     Continued




VerDate 0ct 09 2002   10:56 May 29, 2013   Jkt 372897   PO 20009   Frm 00004   Fmt 3851   Sfmt 3851   V:\FILES\KLEIN.135   SHEILA
                                      170                135 UNITED STATES TAX COURT REPORTS                                        (166)


                                        Mr. Klein filed his Tax Court petition during the pendency
                                      of his second bankruptcy suit. If the automatic stay provision
                                      applied at that time, then we lack jurisdiction over this case.
                                      Consequently, we must decide whether a stay arising from
                                      his second bankruptcy petition barred the ‘‘commencement’’
                                      of this tax deficiency case in January 2010 and deprived this
                                      Court of jurisdiction, or whether instead an exception to the
                                      automatic stay prevented its operation here. If commence-
                                      ment of this case was not barred, we must decide whether
                                      the pendency of that second bankruptcy suit or any of the
                                      subsequent four suits bars the ‘‘continuation’’ of this case.
                                      II. Exceptions to the automatic stay
                                        The general rule of 11 U.S.C. section 362(a) is subject to
                                      two pertinent exceptions, given in section 362(c)(3) and (4).
                                      The exception in paragraph (4) is simpler to analyze, and it
                                      provides a helpful prelude to the more complex provision in
                                      paragraph (3). We therefore take these provisions out of
                                      numerical and logical order to discuss first paragraph (4).
                                           A. Two petitions dismissed within the previous year
                                           Title 11 U.S.C. section 362(c)(4)(A)(i) provides that—
                                      if a single or joint case is filed by or against a debtor who is an individual
                                      under this title, and if 2 or more single or joint cases of the debtor were
                                      pending within the previous year but were dismissed, other than a case
                                      refiled under section 707(b), the stay under subsection (a) shall not go into
                                      effect upon the filing of the later case * * *. [Emphasis added.]

                                      This exception to the automatic stay applies when there have
                                      been ‘‘2 * * * cases * * * within the previous year * * * dis-
                                      missed’’. When that prerequisite is met, the statute provides
                                      simply and without condition that the automatic stay ‘‘shall
                                      not go into effect’’ upon the filing of any bankruptcy petition
                                      within a year of those dismissals.
                                         Assuming that we are not deprived of jurisdiction by the
                                      second bankruptcy petition (discussed below in part II.B),
                                      this provision preempts the automatic stay that otherwise
                                      would have arisen upon the filing of Mr. Klein’s third, fourth,
                                      fifth, and sixth bankruptcy petitions: In the ‘‘previous year’’
                                      to each of Mr. Klein’s third through sixth bankruptcy peti-
                                      intended to address the tax issues—and it would presumably be in the parties’ interest to do
                                      so.




VerDate 0ct 09 2002   10:56 May 29, 2013   Jkt 372897   PO 20009   Frm 00005   Fmt 3851   Sfmt 3851   V:\FILES\KLEIN.135   SHEILA
                                      (166)                           KLEIN v. COMMISSIONER                                         171


                                      tions, the Bankruptcy Court had dismissed two or more of
                                      his prior cases. See table, supra p. 167. (Before Mr. Klein
                                      filed his most recent bankruptcy petition—his sixth, filed in
                                      June 2010—the Bankruptcy Court had dismissed four of his
                                      petitions in the previous year.) Consequently, under 11
                                      U.S.C. section 362(c)(4), the automatic stay did ‘‘not go into
                                      effect’’ as the result of the filing of Mr. Klein’s third, fourth,
                                      fifth, and sixth bankruptcy petitions (in February, March,
                                      April, and June of 2010), and those petitions did not bar the
                                      continuation of this suit.
                                         Thus, proceedings in this case are not currently stayed by
                                      the still-pending June 2010 bankruptcy petition, and we are
                                      not barred from continuing our proceedings in this case—if
                                      we have jurisdiction, to which issue we now turn.
                                           B. A second petition within the preceding year
                                           1. The statute
                                        Paragraph (3) of 11 U.S.C. section 362(c) is somewhat more
                                      complicated than the simple rule of paragraph (4). Section
                                      362(c)(3) provides:
                                      if a single or joint case of the debtor was pending within the preceding 1-
                                      year period but was dismissed, * * *
                                         (A) the stay under subsection (a) with respect to any action taken with
                                      respect to a debt or property securing such debt or with respect to any
                                      lease shall terminate with respect to the debtor on the 30th day after the
                                      filing of the later case * * *. [Emphasis added.]

                                           2. The legislative history
                                        Congress apparently drafted subsection (c)(3) and (4) of 11
                                      U.S.C. section 362 separately. The so-called ‘‘exploding stay’’
                                      of paragraph (3) appeared first in H.R. 3150, 105th Cong.
                                      (1998), entitled the Bankruptcy Reform Act of 1998, intro-
                                      duced February 3, 1998; and paragraph (4) first appeared
                                      eight months later in the House conference report to H.R.
                                      3150 on October 7, 1998. See H. Rept. 105–540, at 54 (1998);
                                      H. Conf. Rept. 105–794, at 21 (1998); see also Laura B.
                                      Bartell, ‘‘Staying the Serial Filer—Interpreting the New
                                      Exploding Stay Provisions of § 362(c)(3) of the Bankruptcy
                                      Code’’, 82 Am. Bankr. L.J. 201, 222–225 (2008).
                                        The House Judiciary Committee explained in 1998 that
                                      some debtors file successive bankruptcy cases to take advan-




VerDate 0ct 09 2002   10:56 May 29, 2013   Jkt 372897   PO 20009   Frm 00006   Fmt 3851   Sfmt 3851   V:\FILES\KLEIN.135   SHEILA
                                      172                135 UNITED STATES TAX COURT REPORTS                                        (166)


                                      tage of successive automatic stays and prevent creditors from
                                      pursuing actions against their property and proposed that
                                      new Bankruptcy Code section 362(c)(3) would remedy
                                      this problem by terminating the automatic stay in cases filed by an indi-
                                      vidual debtor * * * if his or her prior case was dismissed within the pre-
                                      ceding year. In the subsequently filed bankruptcy case, the automatic stay
                                      terminates 30 days following the filing date of the case unless the court,
                                      upon request of a party in interest, grants an extension. * * * [H. Rept.
                                      105–540, at 80; emphasis added.]

                                        The Senate Judiciary Committee explained in 1998 that
                                      many of the worst bankruptcy system abuses involve debtors
                                      who repeatedly file petitions in bankruptcy for the sole pur-
                                      pose of abusing the automatic stay and that the proposed
                                      statute contains restrictions on repeat filers such that ‘‘if a
                                      bankrupt has filed for bankruptcy before, and that case was
                                      dismissed, the bankrupt will not get the benefit of the auto-
                                      matic stay.’’ S. Rept. 105–253, at 27–28 (1998).
                                        The relevant portions of 11 U.S.C. section 362(c)(3) and (4)
                                      enacted in the Bankruptcy Abuse Prevention and Consumer
                                      Protection Act of 2005, Pub. L. 109–8, sec. 302, 119 Stat. 75,
                                      are identical to the statute proposed in 1998 (and passed by
                                      Congress in 2000 but vetoed by President Clinton). See
                                      Bartell, 82 Am. Bankr. L.J. at 225. In 2005 the House
                                      Judiciary Committee stated that in order to discourage bad
                                      faith repeat bankruptcy filings, the act amends
                                      section 362(c) of the Bankruptcy Code to terminate the automatic stay
                                      within 30 days in a chapter 7, 11, or 13 case filed by or against an indi-
                                      vidual if such individual was a debtor in a previously dismissed case
                                      pending within the preceding one-year period. * * * [H. Rept. 109–31
                                      (Part 1), at 69 (2005).]

                                        All these descriptions of the effect of 11 U.S.C. section
                                      362(c)(3)(A) include little nuance or qualification, and they
                                      thereby imply that the provision was to have a broad effect.
                                      This legislative history thus may suggest that Congress
                                      intended the reach of 11 U.S.C. section 362(c)(3) (terminating
                                      the stay in some circumstances) to be as broad as the reach
                                      of section 362(c)(4) (preempting the stay in other cir-
                                      cumstances); but section 362(c)(3) uses different language,
                                      which we now analyze.




VerDate 0ct 09 2002   10:56 May 29, 2013   Jkt 372897   PO 20009   Frm 00007   Fmt 3851   Sfmt 3851   V:\FILES\KLEIN.135   SHEILA
                                      (166)                           KLEIN v. COMMISSIONER                                         173


                                           3. The application of 11 U.S.C. section 362(c)(3)(A) to defi-
                                              ciency litigation
                                         When Mr. Klein filed his second bankruptcy petition in
                                      October 2009, his prior petition had been (in the words of the
                                      statute) ‘‘pending within the preceding 1-year period’’ and
                                      had been ‘‘dismissed’’ only seven months earlier in March
                                      2009, thus meeting the conditions for this exception to the
                                      stay. However, 11 U.S.C. section 362(c)(3) does not declare
                                      circumstances in which the automatic stay never goes into
                                      effect but rather provides that the stay ‘‘terminate[s]’’ after
                                      a time (i.e., 30 days) 5 and only in certain ‘‘respect[s]’’. That
                                      is, the language Congress used in section 362(c)(3)(A)
                                      employs several ‘‘with respect to’’ phrases not present in the
                                      broad descriptions in the legislative history, see supra part
                                      II.B.2, and not used in the simple and unconditional lan-
                                      guage of section 362(c)(4), see supra part II.A. We must
                                      therefore decide whether those phrases narrow or qualify the
                                      termination in any sense relevant here. In particular, 6 this
                                      provision terminates the stay ‘‘with respect to any action
                                      taken with respect to a debt’’ and does so ‘‘with respect to the
                                      debtor’’. That language prompts two questions: whether a
                                      Tax Court deficiency suit is an ‘‘action taken with respect to
                                      a debt’’, and whether terminating the stay ‘‘with respect to
                                      the debtor’’ permits a Tax Court deficiency suit to go forward.
                                      We answer those questions in the affirmative.
                                           a. ‘‘[A]ction taken with respect to a debt’’
                                        The Bankruptcy Code defines ‘‘debt’’ as ‘‘liability on a
                                      claim’’, 11 U.S.C. sec. 101(12), and defines ‘‘claim’’ as a ‘‘right
                                      to payment, whether or not such right is reduced to judg-
                                      ment, liquidated, unliquidated, fixed, contingent, matured,
                                      unmatured, disputed, undisputed, legal, equitable, secured,
                                      or unsecured’’, id. sec. 101(5)(A). A tax liability is an amount
                                      of tax the taxpayer owes to the United States. Sec. Flour
                                      Mills Co. v. Commissioner, 321 U.S. 281, 284 (1944). Even
                                        5 Title 11 U.S.C. section 362(c)(3)(B) provides that, within those 30 days, a party in interest

                                      may move the bankruptcy court to extend the stay further, but no such motion was filed.
                                        6 Title 11 U.S.C. section 362(c)(3)(A) also provides that the stay terminates ‘‘with respect to

                                      any action taken with respect to * * * property securing such debt or with respect to any lease’’
                                      (emphasis added), but we need not determine the effect of these property and lease provisions.
                                      Rather, we need only decide whether section 362(c)(3)(A) terminates the stay imposed on Tax
                                      Court proceedings by section 362(a)(8).




VerDate 0ct 09 2002   10:56 May 29, 2013   Jkt 372897   PO 20009   Frm 00008   Fmt 3851   Sfmt 3851   V:\FILES\KLEIN.135   SHEILA
                                      174                135 UNITED STATES TAX COURT REPORTS                                        (166)


                                      though unassessed, tax liabilities are deemed due and owing
                                      at the close of the taxable year. Edelson v. Commissioner,
                                      829 F.2d 828, 834 (9th Cir. 1987), affg. T.C. Memo. 1986–
                                      223. The Government has a right to payment for tax liabil-
                                      ities; and for bankruptcy purposes, a tax liability is thus a
                                      ‘‘liability on a claim’’ and hence a ‘‘debt’’ as of the end of the
                                      taxpayer’s taxable year.
                                          Taxpayers file deficiency cases in this Court to obtain
                                      prepayment judicial redetermination of the tax liability
                                      determined by the IRS. Our decision results in a precise
                                      determination of the amount the taxpayer owes the Govern-
                                      ment for each tax and period at issue; i.e., the debt becomes
                                      judicially liquidated.
                                          We hold, therefore, that a Tax Court deficiency case is an
                                      ‘‘action taken with respect to a debt’’ for purposes of 11
                                      U.S.C. section 362(c)(3).
                                           b. ‘‘[T]erminate with respect to the debtor’’
                                         The provision at issue applies, inter alia, to stays arising
                                      from actions ‘‘taken with respect to a debt’’ (which we have
                                      held includes a Tax Court deficiency case), but it terminates
                                      the stay ‘‘with respect to the debtor’’. (Emphasis added.) The
                                      bankruptcy courts have interpreted this latter phrase in two
                                      different ways, but neither approach restricts the termi-
                                      nation of the automatic stay on the commencement or
                                      continuation of a debtor’s Tax Court deficiency case.
                                         Some of the courts interpreting ‘‘with respect to the debtor’’
                                      note that 11 U.S.C. section 362(a), in enumerating which
                                      actions are stayed, differentiates between the debtor, prop-
                                      erty of the debtor, and property of the estate. In specifying
                                      the duration of the automatic stay, paragraphs (1) and (2) of
                                      section 362(c) distinguish between acts against property of
                                      the estate (the stay continues so long as property remains
                                      property of the estate) and all other acts (the stay continues
                                      until the case is closed or dismissed or until a discharge is
                                      granted or denied).
                                         The language ‘‘with respect to the debtor’’ in 11 U.S.C. sec-
                                      tion 362(c)(3)(A) has therefore been an occasion for some
                                      bankruptcy courts to ‘‘differentiate between the debtor, prop-
                                      erty of the debtor, and property of the estate’’. See, e.g.,
                                      Jumpp v. Chase Home Fin., LLC, 356 Bankr. 789, 794




VerDate 0ct 09 2002   10:56 May 29, 2013   Jkt 372897   PO 20009   Frm 00009   Fmt 3851   Sfmt 3851   V:\FILES\KLEIN.135   SHEILA
                                      (166)                           KLEIN v. COMMISSIONER                                         175


                                      (B.A.P. 1st Cir. 2006) (holding that the automatic stay termi-
                                      nates as to the debtor personally and as to his non-estate
                                      property but that the stay persists as to property of the
                                      bankruptcy estate). Other courts do not see those distinctions
                                      implicated in section 362(c)(3). See, e.g., In re Daniel, 404
                                      Bankr. 318 (Bankr. N.D. Ill. 2009) (holding that the auto-
                                      matic stay terminates completely as to a serially filing
                                      spouse but remains in force as to a newly filing spouse).
                                         However, a Tax Court case does not involve property—
                                      either estate property or the debtor’s non-estate property.
                                      Rather, Tax Court cases are in personam actions for redeter-
                                      mination of the debtor’s tax liability. Therefore, we need not
                                      decide whether ‘‘against debtor’’ also encompasses any in rem
                                      actions. To proceed with a Tax Court deficiency suit, it is
                                      enough that action is permitted ‘‘with respect to the debtor’’.
                                      (Emphasis added.) Even though the bankruptcy courts dis-
                                      agree about the scope of the termination, as is described
                                      above, none of those courts raises any question whether 11
                                      U.S.C. section 362(c)(3) terminates the automatic stay with
                                      regard to in personam actions. See In re Daniel, supra at
                                      321–327 (describing four possible interpretations of stay
                                      termination ‘‘with respect to the debtor’’, all of which termi-
                                      nate the stay on in personam actions). Nothing in the statu-
                                      tory language or the legislative history suggests less than
                                      complete termination as to the debtor.
                                         We hold that the redetermination of a tax liability in a
                                      deficiency case is an ‘‘action taken with respect to a debt’’
                                      that proceeds ‘‘with respect to the debtor’’. It follows that if
                                      the automatic stay ‘‘with respect to any action taken with
                                      respect to a debt’’ is terminated ‘‘with respect to the debtor’’
                                      by 11 U.S.C. section 362(c)(3), then the stay imposed by sec-
                                      tion 362(a)(8) on the commencement and continuation of a
                                      Tax Court deficiency case is terminated.

                                                                                Conclusion
                                         Congress intended a broad remedy to debtors’ abuses of the
                                      automatic stay in bankruptcy, and it enacted 11 U.S.C. sec-
                                      tion 362(c)(3) and (4) to effect that remedy. Because the
                                      exception in section 362(c)(3)(A) does apply to Tax Court defi-
                                      ciency cases, the stay arising from Mr. Klein’s October 2009
                                      bankruptcy petition terminated in November 2009—before




VerDate 0ct 09 2002   10:56 May 29, 2013   Jkt 372897   PO 20009   Frm 00010   Fmt 3851   Sfmt 3851   V:\FILES\KLEIN.135   SHEILA
                                      176                135 UNITED STATES TAX COURT REPORTS                                        (166)


                                      the January 2010 filing of the petition in this case—and did
                                      not bar the ‘‘commencement’’ of this case. Under section
                                      362(c)(4), the subsequent bankruptcy petitions do not impede
                                      the ‘‘continuation’’ of his case. The automatic stay of section
                                      362(a)(8) therefore did not deprive us of jurisdiction and does
                                      not bar further proceedings in this case.
                                        To reflect the foregoing,
                                                                                 An appropriate order will be issued.

                                                                               f




VerDate 0ct 09 2002   10:56 May 29, 2013   Jkt 372897   PO 20009   Frm 00011   Fmt 3851   Sfmt 3851   V:\FILES\KLEIN.135   SHEILA
