                        T.C. Memo. 2006-132



                      UNITED STATES TAX COURT



     THOMAS H. CASSEL III & JONITA M. CASSEL, Petitioners v.
           COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 5462-05.              Filed June 26, 2006.



     Thomas H. Cassel III and Jonita M. Cassel, pro sese.

     Brooke W. Patterson, for respondent.



                        MEMORANDUM OPINION


     LARO, Judge:   Respondent moves the Court to dismiss this

case for lack of jurisdiction, asserting that the petition

commencing this case was filed with the Court in violation of the

automatic stay of 11 U.S.C. section 362(a)(8) (2000).

Petitioners object to respondent’s motion, arguing that

respondent has waived the right to challenge the Court’s
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jurisdiction in this case.   Petitioners also argue that equity

demands that respondent’s motion be denied because the time in

which a petition may be filed with the Court as to the notice of

deficiency at hand has apparently expired.

     We shall grant respondent’s motion and dismiss this case for

lack of jurisdiction.    Unless otherwise noted, section references

are to the applicable versions of the Internal Revenue Code.

                             Background

     On December 13, 2004, respondent issued to petitioners a

notice of deficiency determining a $42,299 deficiency in their

2002 Federal income tax and an $8,460 accuracy-related penalty

under section 6662(a).   On February 11, 2005, petitioners filed

for bankruptcy protection in the U.S. Bankruptcy Court for the

Northern District of Mississippi.   On March 21, 2005, petitioners

petitioned this Court to redetermine the deficiency and accuracy-

related penalty reflected in the notice of deficiency for 2002.

On August 18, 2005, petitioners received a discharge in the

bankruptcy case.

                             Discussion

     This Court’s jurisdiction in a deficiency case hinges on a

valid notice of deficiency and a timely filed petition, and we

must dismiss a case in which either one or the other is not

present.   See sec. 6213(a); Cross v. Commissioner, 98 T.C. 613,

615 (1992).   Respondent asserts that the Court lacks jurisdiction
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because there is no timely petition.   We agree.    Although

petitioners filed their petition with the Court on March 21,

2005, that petition was filed in violation of the automatic stay

of 11 U.S.C. section 362(a)(8) and (c) (2000).     The automatic

stay arises by operation of law upon the commencement of a

bankruptcy action and, absent a granting of relief from the stay

by the bankruptcy court, see 11 U.S.C. sec. 362(d) (2000),

generally 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); see also Allison v.

Commissioner, 97 T.C. 544, 545 (1991); Smith v. Commissioner,

96 T.C. 10, 14 (1991).   Actions prohibited by the automatic stay

include “the commencement * * * of a proceeding before the United

States Tax Court concerning the debtor”, 11 U.S.C. sec.

362(a)(8),   and actions taken in violation of the automatic stay

are void ab initio, see Roberts v. Commissioner, 175 F.3d 889,

893 n.3 (11th Cir. 1999).   Petitioners’ filing of their petition

with this Court is void ab initio and, hence, a nullity.

     Petitioners argue that respondent has waived the right to

challenge this Court’s jurisdiction.   We disagree.    Whether the

Court has jurisdiction is an issue that either party may raise at

any time, and the failure to question our jurisdiction by a

certain time is not a waiver of the right to do so.     See Ins.

Corp. of Ireland, Ltd. v. Compagnie des Bauxites de Guinee, 456
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U.S. 694, 702 (1982); Charlotte’s Office Boutique, Inc. v.

Commissioner, 121 T.C. 89, 102 (2003), supplemented by T.C. Memo.

2004-43, affd. 425 F.3d 1203 (9th Cir. 2005); Reagoso v.

Commissioner, T.C. Memo. 1993-450, affd. without published

opinion 39 F.3d 1171 (3d Cir. 1994).

     Petitioners also argue that respondent’s motion should be

denied because they are time barred from petitioning this Court

with respect to the notice of deficiency.   We disagree.   Because

the automatic stay was in effect when the petition was filed, the

petition is invalid and must be dismissed for lack of

jurisdiction.


                              An order will be issued granting

                         respondent’s motion and directing that

                         this case be dismissed for lack of

                         jurisdiction.
