Friday, April 5, 2013

Majority of Circuits Hold that the Bankruptcy Automatic Stay Does Not Apply to Tax Court Proceedings (4/5/13)

In Schoppe v. Commissioner, ___ F.3d ___, 2013 U.S. App. LEXIS 6266 (10th Cir. 2013), here, the Tenth Circuit held that the automatic stay provision in 31 U.S.C. § 362(a)(1), here, does not stay a Tax Court proceeding (including the appeal from the Tax Court involved in Schoppe).  In so doing, the Court discussed a circuit court split on the issue and sided with the majority of the circuits.  I commend the decision for its discussion of the competing authorities.

I have added the following to my Federal Tax Procedure Book (footnotes omitted):
2. The filing of bankruptcy will impose an automatic stay of: 
the commencement or continuation, including the issuance or employment of process, of a judicial, administrative, or other action or proceeding against the debtor that was or could have been commenced before the commencement of the case under this title, or to recover a claim against the debtor that arose before the commencement of the case under this title. 
The question has arisen whether this automatic stay applies to Tax Court proceedings.  The Circuit Courts are split on the issue based on differing interpretations of the nature of Tax Court proceedings with respect to the textual requirement that the stayed proceeding be a proceeding “against the debtor.”  Courts focusing on the taxpayer as the initiator of the Tax Court proceeding itself, hold that the Tax Court proceeding is not a case “against the debtor” and thus deny the stay.  This is the majority holding.  The Ninth Circuit, however, takes a broader view of the Tax Court case as being a continuation of a tax assessment proceeding commenced by the IRS against the debtor via the audit and imposes the stay.

The authorities cited in my footnotes (omitted here) are contained in the Schoppe decision linked above.

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