                         T.C. Memo. 2005-260



                       UNITED STATES TAX COURT



           CLYDE D. AND YOLANDA M. ADKINS, Petitioners v.
            COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 9388-04.               Filed November 3, 2005.



     Thomas J. Utaski, for petitioners.

     Robert D. Kaiser, for respondent.



                         MEMORANDUM OPINION


     LARO, Judge:    Respondent moves the Court for leave

(respondent’s motion for leave) to file a motion under Rule 162

to vacate the stipulated decision entered in this case on

March 30, 2005, and now “final” under section 7481(a)(1).1


     1
         Unless otherwise noted, section references are to the
                                                     (continued...)
                                 - 2 -

Respondent’s motion for leave asserts that the stipulated

decision is void because it was entered in violation of the

automatic stay (automatic stay) of 11 U.S.C. section 362(a)

(2000).    Respondent has lodged with the Court his related motion

to vacate the stipulated decision (respondent’s motion to

vacate).

     We decide first whether we have jurisdiction to decide

respondent’s motion for leave.    We hold we do.    We decide second

whether we should grant respondent’s motion for leave.      We hold

we shall.   We decide third whether we should grant respondent’s

motion to vacate.   We hold we shall.     We decide fourth, sua

sponte, whether we should dismiss this case for lack of

jurisdiction in that petitioners’ petition to this Court was

filed in violation of the automatic stay.      We hold we shall.

                             Background

     On April 9, 2004, respondent issued to petitioners a notice

of deficiency determining a $2,107 deficiency in their 2001

Federal income tax.   On the same day, respondent issued to

petitioners a second notice of deficiency determining a $2,557

deficiency in their 2002 Federal income tax.      On May 20, 2004,

petitioners filed a petition for relief under chapter 13 of the

Bankruptcy Code with the U.S. Bankruptcy Court for the Southern


     1
      (...continued)
applicable versions of the Internal Revenue Code, and Rule
references are to the Tax Court Rules of Practice and Procedure.
                               - 3 -

District of Ohio.   On June 7, 2004, petitioners petitioned this

Court to redetermine the deficiencies determined in the notices

of deficiency.2

     This case was called for trial on March 14, 2005.    At that

time, the parties, through their respective counsel, informed the

Court that the case had been settled.    On March 30, 2005, the

Court entered a stipulated decision reflecting the parties’

settlement.   On August 19, 2005, respondent learned that

petitioners had filed for bankruptcy on May 20, 2004, and that

the bankruptcy proceeding had been continuously ongoing ever

since.   Respondent notified the Court of this matter by filing

respondent’s motion for leave and by lodging respondent’s motion

to vacate.

                            Discussion

     Respondent desires to file a motion to vacate the parties’

stipulated decision that was entered on March 30, 2005.     Because

neither party filed a notice of appeal or a timely motion to

vacate or revise that decision, the decision became final on

June 28, 2005, 90 days after it was entered.    See secs. 7459(c),

7481(a)(1).

     Rule 162 provides that a party seeking to vacate a decision

must file an appropriate motion within 30 days after the decision



     2
       When the petition was filed, petitioners resided in
Lebanon, Ohio.
                                 - 4 -

is entered, unless the Court allows otherwise.    Because

respondent did not file respondent’s motion to vacate within this

30-day period, respondent has requested leave from the Court to

file that motion at this time.    Whether the Court allows the

filing of a motion to vacate a decision after the referenced

30-day period is generally within the sound discretion of the

Court.    See Estate of Egger v. Commissioner, 92 T.C. 1079, 1083

(1989); see also Heim v. Commissioner, 872 F.2d 245, 246 (8th

Cir. 1989), affg. T.C. Memo. 1987-1.     Where a party legitimately

attacks the jurisdiction of this Court, however, the Court must

freely exercise that discretion notwithstanding the time of the

attack.   See Brannon’s of Shawnee, Inc. v. Commissioner, 69 T.C.

999, 1002 (1978); see also Jordon v. Gilligan, 500 F.2d 701, 704

(6th Cir. 1974).   Such is so even if the decision under attack is

final under the statutory scheme applicable to decisions of this

Court.    See Brannon’s of Shawnee, Inc. v. Commissioner, supra at

1002; see also Jordon v. Gilligan, supra at 704.     The Court has

jurisdiction to vacate a decision of ours that is void, see

Roberts v. Commissioner, 175 F.3d 889, 892 n.3 (11th Cir. 1999);

Abeles v. Commissioner, 90 T.C. 103, 105-106 (1988); Brannon’s of

Shawnee, Inc. v. Commissioner, supra at 1002; see also Jordon v.

Gilligan, supra at 704, which naturally means that the Court also

has jurisdiction to grant a motion for leave to file a motion to

vacate a void decision.   Under the setting at hand, we shall
                                 - 5 -

grant respondent’s request for leave to file respondent’s motion

to vacate.

     We turn to consider respondent’s motion to vacate.     The

Court’s jurisdiction to vacate a final decision is more limited

than the Court’s jurisdiction to vacate a decision that is not

final.   See Cinema ‘84 v. Commissioner, 122 T.C. 264, 270 (2004);

see also Harbold v. Commissioner, 51 F.3d 618 (6th Cir. 1995).

Notwithstanding whether a decision is final, however, the Court

always has jurisdiction to vacate a decision that is void; e.g.,

because the Court lacked jurisdiction to enter the decision in

the first place.   See Roberts v. Commissioner, supra at 892 n.3;

Billingsley v. Commissioner, 868 F.2d 1081 (9th Cir. 1989);

Abeles v. Commissioner, supra at 105-106; Brannon’s of Shawnee,

Inc. v. Commissioner, supra at 1001-1002; see also Jordon v.

Gilligan, supra at 704.    Respondent asserts that the stipulated

decision is void in that it was entered in violation of the

automatic stay.    We agree.   Actions taken in this Court in

violation of the automatic stay are void, see Roberts v.

Commissioner, supra at 892 n.3; Brannon’s of Shawnee, Inc. v.

Commissioner, supra at 1000-1002; see also Prevo v. Commissioner,

123 T.C. 326 (2004); Drake v. Commissioner, 123 T.C. 320 (2004);

Halpern v. Commissioner, 96 T.C. 895 (1991), and one of those

actions is “the commencement or continuation of a proceeding
                               - 6 -

before the United States Tax Court concerning the debtor”,

11 U.S.C. sec. 362(a)(8) (2000).

     The automatic stay arises by operation of law upon the

filing of a bankruptcy petition and, absent an order of the

bankruptcy court to the contrary, see 11 U.S.C. sec. 362(d)

(2000), continues unimpaired until the earliest of the closing of

the case, the dismissal of the case, or the grant or denial of a

discharge, see 11 U.S.C. sec. 362(c)(2) (2000); see also Smith v.

Commissioner, 96 T.C. 10, 14 (1991).   Petitioners’ bankruptcy

case has been continuously ongoing since before the start of this

proceeding, and we do not find that the bankruptcy court ever

issued an order allowing petitioners to file their petition in

this Court.   Because the automatic stay has been in place

throughout this proceeding, and our entering of the parties’

stipulated decision also occurred during that time, our entering

of that decision violated the automatic stay and, hence, the

decision is void.   Given that the stipulated decision is void, we

shall vacate it.

     We turn to consider the effect of petitioners’ filing of

their petition in this Court given that this filing also occurred

during, and was in violation of, the automatic stay.   Although

neither party has asked the Court to decide this issue, the Court

can (and should) sua sponte decide the Court’s jurisdiction

whenever it is in question.   See Halpern v. Commissioner, supra;
                                 - 7 -

Smith v. Commissioner, supra at 13-14; see also Neely v.

Commissioner, 115 T.C. 287, 290 (2000); cf. Ruhrgas AG v.

Marathon Oil Co., 526 U.S. 574, 583 (1999).    Because a petition

that is filed in violation of the automatic stay is invalid and

of no consequence, see Halpern v. Commissioner, supra; Wahlstrom

v. Commissioner, 92 T.C. 703 (1989); McClamma v. Commissioner,

76 T.C. 754 (1981); see also Jordon v. Gilligan, supra at 704, we

shall dismiss this case for lack of jurisdiction after we vacate

the decision that was entered on March 30, 2005.

     To reflect the foregoing,


                                 An appropriate order and order of

                         dismissal will be entered.
