Freeman v. C.I.R., 86-4090
| Decision Date | 22 September 1986 |
| Docket Number | No. 86-4090,86-4090 |
| Citation | 799 F.2d 1091 |
| Parties | Bankr. L. Rep. P 71,481 Claude FREEMAN and Carol Freeman, Petitioners-Appellants, v. COMMISSIONER OF INTERNAL REVENUE, Respondent-Appellee. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Freeman Law Offices, Inc., Claude Freeman Lubbock, Tex., pro se.
Glenn L. Archer, Jr., Asst. Atty. Gen., Tax Div., U.S. Dept. of Justice, Roger M. Olsen, Acting Assist. Atty. Gen., Michael L. Paup, Chief, Appellate Sec., Fred T. Goldberg, Jr., Chief Counsel, I.R.S., Robert P. Ruwe, Director, Gilbert S. Rothenberg, Martha B. Brissette, Attys., Washington, D.C., for C.I.R.
Ruling on Appellants' Motion to Vacate Judgment on Appeal.
Before GEE, RANDALL and DAVIS, Circuit Judges.
Appellants move this Court to vacate its judgment in Freeman v. Commissioner, 795 F.2d 83 (5th Cir.1986) (unpublished decision), on the theory that appellate proceedings before this Court were stayed upon the filing by appellants of a voluntary petition for reorganization under Chapter 11 of the Bankruptcy Code. For the reasons set forth below, we deny appellants' motion to vacate judgment.
On July 18, 1985, appellants filed a petition in Tax Court for a redetermination of their 1981 federal income tax liability. Because the petition was not timely filed, the tax court dismissed it. A panel of this Court affirmed the dismissal of appellants' petition. Ten days after the appellants filed a notice of appeal from the tax court's dismissal of their petition, they filed a Chapter 11 petition. Through the inadvertance of appellant's counsel, the bankruptcy filing was not communicated to this Court. Appellants now allege that proceedings before this Court were stayed pursuant to the automatic stay of the Bankruptcy Code. 11 U.S.C. Sec. 362(a)(1) (Supp.III 1985), and that this Court's affirmance of the decision of the tax court is therefore void.
The automatic stay provision of the Bankruptcy Code provides:
(a) Except as provided in subsection (b) of this section, a petition filed under section 301, 302, or 303 of this title, ... operates as a stay, applicable to all entities, of--
(1) the commencement or continuation, including the issuance or employment of process, of a judicial, administrative, or other proceeding against the debtor that was or could have been commenced before the commencement of the case under this title, or to recover a claim against the debtor that arose before the commencement of the case under this title;
11 U.S.C. Sec. 362(a) (Supp.III 1985) (emphasis added).
Since the appeal from the decision of the Tax Court is obviously the continuation of a judicial proceeding within the meaning of the above section, the only question is whether the proceeding is "against the debtor." Other courts of appeals that have considered this issue have held that whether a proceeding is against the debtor within the meaning of Section 362(a)(1) is determined from an...
To continue reading
Request your trial
-
Roberts v. C.I.R.
...from the Tax Court's decision--pursuant to both clauses of section 362(a)(1). The Commissioner, relying in part on Freeman v. Commissioner, 799 F.2d 1091 (5th Cir.1986), contends that section 362(a)(1) did not apply because the petitioners commenced a judicial proceeding against him when th......
-
Tucson Elec. Power Co. v. Apache County
...published opinion in the present case as "not properly reasoned." Id. Appellees place primary reliance on Freeman v. Commissioner of Internal Revenue, 799 F.2d 1091 (5th Cir.1986), and other federal appellate cases they cite for resolution of the question whether the "proceeding" sought to ......
-
Hill v. Heritage Resources, Inc.
...debtor. McMillan v. MBank Fort Worth, N.A., 4 F.3d 362, 366 (5th Cir.1993); Freeman v. Commissioner of Internal Page 122 Revenue, 799 F.2d 1091, 1092-93 (5th Cir.1986). We find that Heritage cannot avail itself of the protection afforded by Sections 108 and 362 on claims it We sustain both ......
-
Shah v. Glendale Federal Bank
...Croix Hotel Corp. (3d Cir.1982) 682 F.2d 446, 448-449; Matter of U.S. Abatement Corp. (5th Cir.1994) 39 F.3d 563, 568; Freeman v. C.I.R. (5th Cir.1986) 799 F.2d 1091, 1093; Cathey v. Johns-Manville Sales Corp. (6th Cir.1983) 711 F.2d 60, 61; Martin-Trigona v. Champion Fed. Sav., supra, 892 ......