Attorney-at-Law

AN UNROMANTIC JUDGE

In Uncategorized on 09/26/2014 at 15:38

We all know that 11USC§362(a)(8) erects an impenetrable barrier against the “commencement or continuation of a proceeding before the United States Tax Court concerning a 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.”

And we all know that Section 6213(f)(1) also stops the clock on the time for filing a petition in Tax Court until the earliest of closing the case, granting or denying discharge, or dismissal of the case, tracking 11USC§362(c)(2), and for 60 days thereafter.

But what happens when a petition is filed in violation of the §362(a)(8) barricade, but a purported amendment is filed after discharge, but within the 60 day window? As no petition was filed as a matter of law, there should be nothing to amend. An interesting question.

Well, Ch J Michael B. (“Iron Mike”) Thornton deals with such academic issues in the same way as a very senior partner of a very highpowered law firm told me forty years ago: “Mr Taishoff, we are not here for the romantic practice of law.”

Ch J Iron Mike: “Inasmuch as the Amended Petition…was filed after petitioner Gary Martell received discharge in his bankruptcy case, that Amended Petition shall be filed as a petition at Docket No. 22347-14.” Order, at p. 2.

So then IRS wins its motion to dismiss the petition, but now has to deal with the amended petition, which is now the petition. And the case is Gary Martell and Johanna Martinez, Docket No. 22347-14, filed 9/26/14.

No, Ch J Iron Mike is not so styled for nothing.

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