Leonard O. Parker, Jr. - Page 6

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              Petitioner argues the Internal Revenue Service has a                    
         contemporaneous right to the payment of taxes as income is                   
         earned.  As a result, petitioner contends that respondent had a              
         prepetition “claim” under 11 U.S.C. sec. 362(a)(6), for taxes                
         generated from income earned from January 1, 2004, through the               
         date petitioner filed a petition with the bankruptcy court on                
         April 7, 1994.  Thus, in petitioner’s view the October 9, 1995,              
         assessment of petitioner’s 1994 tax liability, as it pertains to             
         the income earned before the petition was filed, violated the                
         automatic bankruptcy stay.6                                                  
              Federal income tax generally is incurred, and liability                 
         established, on the last day of the taxable year.  Towers v.                 
         United States (In re Pac.-Atl. Trading Co.), 64 F.3d 1292, 1298              
         (9th Cir. 1995).  Petitioner filed his bankruptcy court petition             
         on April 7, 1994.  The Government’s claim to petitioner’s 1994               
         income tax liability arose no earlier than December 31, 1994.                
         Thus, because the claim to the tax liability arose after the                 
         commencement of the case in bankruptcy, the assessment of                    

               6 If a debtor makes a sec. 1398(d)(2) election, his tax                
          liability for the first short taxable year becomes an allowable             
          claim against the bankruptcy estate as a claim arising prior to             
          the bankruptcy filing.  In the absence of a sec. 1398(d)(2)                 
          election, the debtor’s tax liability for the entire year in which           
          the bankruptcy proceeding commences is collectible directly from            
          the debtor individually, with no portion being collectible from             
          the bankruptcy estate.  See Katz v. Commissioner, 116 T.C. 5, 16-           
          17 (2001), revd. on other grounds 335 F.3d 1121 (10th Cir. 2003).           
          Petitioner did not elect to split the 1994 taxable year under               
          sec. 1398(d)(2).                                                            




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