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(1) the debtor's estate in a case under title
11 of the United States Code, or
(2) the debtor, but only if liability for
such tax has become res judicata pursuant to a
determination in a case under title 11 of the
United States Code,
may, despite the restrictions imposed by section
6213(a) on assessments, be immediately assessed if such
deficiency has not theretofore been assessed in
accordance with law.
Section 6871(b) was enacted as part of the Bankruptcy Tax
Act of 1980, Pub. L. 96-589, 94 Stat. 3389. Its enactment
reflects Congress' belief that "the provisions of the Internal
Revenue Code relating to assessment and collection procedures
should be coordinated with rules enacted in the new bankruptcy
statute (Pub. L. 95-598) for determination of tax liabilities in
bankruptcy cases." S. Rept. 96-1035, at 48 (1980), 1980-2 C.B.
620, 644. Section 6871(b) is derived from current 11 U.S.C. sec.
505(c).
The use of the word "may" in both statutes is generally
interpreted to be permissive and not mandatory. See United
States v. Rodgers, 461 U.S. 677, 706-710 (1983). Read in this
light, section 6871(b) establishes when an assessment of tax
liabilities may be made with respect to a taxpayer who has sought
relief both here and in the bankruptcy court. In all events,
section 6871(b) does not purport to establish when respondent
must assess the taxes. That limitation is set forth in section
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Last modified: May 25, 2011