Thomas H. Cassel III & Jonita M. Cassel - Page 3

                                        - 3 -                                         
          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             






Page:  Previous  1  2  3  4  Next

Last modified: May 25, 2011