The opinion
Simpson, J., dissenting: Here again, the Commissioner asks us to hold that because a taxpayer has filed a petition in bankruptcy, we do not have jurisdiction over the tax claims against him even though the Commissioner has not presented those claims to the bankruptcy court for adjudication. In King v. Commissioner, 51 T.C. 851 (1969), and Prather v. Commissioner, 50 T.C. 445 (1968), we adopted the principle that section 6871(b) was not intended to deprive a bankrupt of the opportunity of having a prepayment adjudication of the tax claims against him. Thus, if the tax claim is presented to the bankruptcy court for adjudication, we lack jurisdiction of it, but if the claim is not presented to that court, we will take jurisdiction of it. Today’s holding by the Court unnecessarily and unwisely, in my opinion, abandons that principle.
The Court has found that because of recent changes in the bankruptcy law and rules, the bankruptcy court may take jurisdiction over claims for additions to tax and that the bankrupt may raise the issue before the bankruptcy court even though the Commissioner has not presented the claim for adjudication. For those reasons, the Court concludes that we do not have jurisdiction over such claims. Yet, it is not altogether clear that the taxpayer will always have an opportunity for an adjudication of the tax claims in the bankruptcy court. The courts have not settled the question yet as to whether the bankruptcy court has jurisdiction over a claim for fraud or a claim for taxes arising shortly before the beginning of the bankruptcy proceeding. Compare In re Durensky, 377 F.Supp. 798, 804-805 (N.D. Tex. 1974), appeal dismissed 519 F.2d 1024 (5th Cir. 1975), with In re O’Ffill, 368 F.Supp. 345, 350-352 (D. Kan. 1973). In addition, the bankrupt cannot be expected to raise the issue in the bankruptcy court unless he has notice of the Commissioner’s claim, and although the Commissioner’s regulations call for him to give notice of such claim, the law is not settled as to what happens if he neglects to give such notice in sufficient time for the bankrupt to raise the matter before the bankruptcy court. Compare In re Statmaster Cory., 465 F.2d 978, 981 (5th Cir. 1972), and In re O’ Ffill, supra, with Bostwick v. United States, 521 F.2d 741, 746 (8th Cir. 1975); Gwilliam v. United States, 519 F.2d 407, 409-412 (9th Cir. 1975); and In re Durensky, supra.
Clearly, there are advantages in having all of the tax claims presented to the bankruptcy court for adjudication, and it would be very simple for the Commissioner to achieve that objective by presenting all of his claims to that court. However, when he fails to present a claim to that court and yet asks us to hold that we lack jurisdiction to consider the claim, I find his actions unpersuasive. I believe that we would be better advised to follow the course which we adopted in Tanner v. Commissioner, 64 T.C. 415 (1975); that is, to conclude that we have jurisdiction of the claim until or unless it is actually presented to the bankruptcy court. If it is presented to that court for adjudication, we would then entertain a motion to dismiss the matter in this Court.