The IRS issued a deficiency notice on Dec. 13, 2004 for P’s 2002 Federal return. P filed for bankruptcy on Feb. 11, 2005. P filed a Tax Court petition on March 21, 2005, and received a discharge in the bankruptcy case on Aug. 18, 2005.

Analysis

On the commencement of a bankruptcy action, an automatic stay arises by operation of law. Absent a granting of relief from the stay by the bankruptcy court, it generally continues unimpaired until the earliest of the closing or dismissal of the case, or the grant or denial of a discharge; see 11 USC Section 362(c)(2); Allison, 97 TC 544, 545 (1991); and Smith, 96 TC 10 (1991). Actions prohibited by the automatic stay include “the commencement…of a proceeding before the United States Tax Court concerning the debtor” (11 USC Section 362(a)(8)). Actions taken in violation of the automatic stay are void ab initio; see Roberts, 175 F3d 889 (11th Cir. 1999). Accordingly, P’s filing of a petition with this court is void ab initio, and, hence, a nullity. Because the automatic stay was in effect, the petition is invalid and must be dismissed for lack of jurisdiction.

P contends that the IRS waived the right to challenge the court’s jurisdiction. Whether the court has jurisdiction is an issue that either party may raise at any time, and the failure to question jurisdiction by a certain time is not a waiver of the right to do so (see Charlotte’s Office Boutique, Inc., 121 TC 89 (2003), supplemented by TC Memo 2004-43, aff’d, 425 F3d 1203 (9th Cir. 2005)).

Thomas H. Cassel III, TC Memo 2006-132