where the petitioner filed a petition with the Tax Court and where the bankruptcy court has sole jurisdiction to redetermine the underlying income tax deficiency.

The pertinent facts may be summarized as follows:

On April 26, 1976, petitioner herein filed a voluntary petition in bankruptcy in the United States District Court for the Western District of Missouri. On April 27, 1976, petitioner was adjudicated a bankrupt and a receiver was appointed. On or about May 10, 1976, the District Court issued its order setting the first meeting of creditors on June 7, 1976, and thereby fixing the last date on which to file claims as December 7, 1976. Such order was served on all creditors named in the bankruptcy petition including respondent herein.

On August 28, 1976, respondent issued to petitioner a statutory notice of deficiency setting forth the following income tax deficiencies for the taxable years 1966 through 1969 and an addition to tax for the

Year

1966.....

1967...

1968.....

year 1969:

1969.....

83,662.23

$8,366.22

On November 22, 1976, respondent filed a timely proof of claim in petitioner's bankruptcy proceeding, scheduling as priority items the amounts set forth above as income tax deficiencies. The addition to tax for the year 1969 was not scheduled on the proof of claim.

On November 30, 1976, a petition captioned in the name of Charles N. Sharpe, Jr., was filed with the Tax Court seeking a redetermination of the income tax deficiencies and the addition to tax for the years in issue.

On January 21, 1977, respondent filed an answer to the Tax Court petition.

On January 25, 1977, pursuant to section 6871(a) of the Code, respondent made an immediate assessment against the petitioner of income tax deficiencies for the years 1966 through 1969 and the addition to tax for 1969.

On January 27, 1977, an amended proof of claim was filed in petitioner's bankruptcy proceeding for the income taxes due and

owing for the years 1966 through 1969 to reflect interest on the claimed deficiencies to April 26, 1976, and to reflect the date upon which the deficiencies were assessed. The addition to tax for the year 1969 was not scheduled on the January 27, 1977, amended proof of claim.

On January 27, 1977, Form L-296 was sent to the petitioner, in care of the trustee in petitioner's bankruptcy proceeding, advising that the income tax deficiencies and the addition to tax were being assessed under the provisions of section 6871(a) for the years 1966 through 1969. The amount of income tax deficiencies stated thereon was the same as set forth in the amended proof of claim, the initial proof of claim, and the statutory notice of deficiency. The amount of the addition to tax for the year 1969 set forth in the Form L-296 letter was the same as set forth in the statutory notice of deficiency.

On July 25, 1977, the trustee and the petitioner (bankrupt) jointly filed an objection to the respondent's proof of claim as not timely filed.

The usual procedures for the redetermination and assessment of income tax deficiencies are set forth in sections 62122 and 6213.3 These sections provide that if the Secretary or his delegate determines a deficiency, he must send notice of deficiency to the taxpayer. The taxpayer has 90 days in which to appeal that

2SEC. 6212. NOTICE OF DEFICIENCY.

(a) IN GENERAL. If the Secretary or his delegate determines that there is a deficiency in respect of any tax imposed by subtitle A or B or chapter 42 or 43, he is authorized to send notice of such deficiency to the taxpayer by certified mail or registered mail.

(1) INCOME AND gift taxes and taxes imposed by cHAPTER 42.- In the absence of notice to the Secretary or his delegate under section 6093 of the existence of a fiduciary relationship, notice of a deficiency in respect of a tax imposed by subtitle A, chapter 12, chapter 42, or chapter 43, if mailed to the taxpayer at his last known address, shall be sufficient for purposes of subtitle A, chapter 12, chapter 42, chapter 43, and this chapter even if such taxpayer is deceased, or is under a legal disability, or, in the case of a corporation, has terminated its existence.

'SEC. 6213. RESTRICTIONS APPLICABLE TO DEFICIENCIES; PETITION TO TAX COURT. (a) TIME FOR FIling Petition and RESTRICTION ON ASSESSMENT.- Within 90 days, or 150 days if the notice is addressed to a person outside the States of the Union and the District of Columbia, after the notice of deficiency authorized in section 6212 is mailed (not counting Saturday, Sunday, or a legal holiday in the District of Columbia as the last day), the taxpayer may file a petition with the Tax Court for a redetermination of the deficiency. Except as otherwise provided in section 6861 no assessment of a deficiency in respect of any tax imposed by subtitle A or B or chapter 42 or 43 and no levy or proceeding in court for its collection shall be made, begun, or prosecuted until such notice has been mailed to the taxpayer, nor until the expiration of such 90-day or 150-day period, as the case may be, nor, if a petition has been filed with the Tax Court, until the decision of the Tax Court has become final. Notwithstanding the provisions of section 7421(a), the making of such assessment or the beginning of such proceeding or levy during the time such prohibition is in force may be enjoined by a proceeding in the proper court.

determination to the Tax Court. As a general rule, no assessment of the deficiency may be made prior to the issuance of the notice of deficiency, during the 90-day period, or, if a petition is filed, until the decision of the Tax Court becomes final.

However, in the case of a taxpayer who is adjudicated a bankrupt, section 6871* prescribes an entirely different procedure. Section 6871(a) provides that after the adjudication in bankruptcy, the Commissioner shall immediately assess any deficiency which has not theretofore been assessed. Section 6871(b) provides, in part, that no petition for redetermination of the deficiency may be filed with the Tax Court after the petitioner has been adjudicated a bankrupt in any liquidating bankruptcy proceeding.

The voluntary filing of a petition by an individual in a liquidating bankruptcy proceeding operates as an adjudication with the same force and effect as a decree of adjudication. Since this petitioner filed a voluntary petition in a liquidating bankruptcy, the provisions of section 6871 are applicable. The petition filed with the Tax Court in this case falls squarely within the prohibition of section 6871(b).

The petitioner seeks to avoid this result by arguing that the issuance of the notice of deficiency on August 28, 1976, constitutes an "election" by respondent, so that concurrent jurisdiction would lie in the bankruptcy court and in this Court. The argument is erroneous because section 6871(b) makes reference to the petition, not the notice of deficiency; the controlling language being "no petition * * * shall be filed with

'SEC. 6871. CLAIMS FOR INCOME, ESTATE, AND GIFT TAXES IN BANKRUPTCY AND RECEIVERSHIP PROCEEDINGS.

(a) IMMEDIATE ASSESSMENT.-Upon the adjudication of bankruptcy of any taxpayer in any liquidating proceeding, the filing or (where approval is required by the Bankruptcy Act) the approval of a petition of, or the approval of a petition against, any taxpayer in any other bankruptcy proceeding, or the appointment of a receiver for any taxpayer in any receivership proceeding before any court of the United States or of any State or Territory or of the District of Columbia, any deficiency (together with all interest, additional amounts, or additions to the tax provided by law) determined by the Secretary or his delegate in respect of a tax imposed by subtitle A or B upon such taxpayer shall, despite the restrictions imposed by section 6213(a) upon assessments, be immediately assessed if such deficiency has not theretofore been assessed in accordance with law.

(b) Claim Filed Despite Pendency of Tax Court PROCEEDINGS.-In the case of a tax imposed by subtitle A or B claims for the deficiency and such interest, additional amounts, and additions to the tax may be presented, for adjudication in accordance with law, to the court before which the bankruptcy or receivership proceeding is pending, despite the pendency of proceedings for the redetermination of the deficiency in pursuance of a petition to the Tax Court; but no petition for any such redetermination shall be filed with the Tax Court after the adjudication of bankruptcy, the filing or (where approval is required by the Bankruptcy Act) the approval of a petition of, or the approval of a petition against, any taxpayer in any other bankruptcy proceeding, or the appointment of the receiver.

the Tax Court" after the filing of the petition in bankruptcy. The instant case is distinguishable from cases where concurrent jurisdiction has been found to exist, e.g., Fotochrome, Inc. v. Commissioner, 57 T.C. 842 (1972), because the petition herein postdated the petition in bankruptcy. And petitioner's reliance on King v. Commissioner, 51 T.C. 851 (1969), and Orenduff v. Commissioner, 49 T.C. 329 (1968), is clearly misplaced since in the instant case the respondent made an assessment and filed a proof of claim in the bankruptcy proceeding, while in King and Orenduff the respondent did not take such action. Thus, this petitioner has been afforded the opportunity to litigate in the bankruptcy proceeding, and the administrative inadvertence resulting in the issuance of the notice of deficiency on August 28, 1976, does not, in our judgment, provide any basis to alter the established rule that this Court is without jurisdiction to redetermine deficiencies in taxes for prebankruptcy years where the petitioner is adjudicated a bankrupt prior to the filing of a petition with the Tax Court and where a timely proof of claim for the tax deficiencies has been filed in the bankruptcy proceeding. This situation is controlled on this issue by our prior opinions in Prather v. Commissioner, 50 T.C. 445 (1968), and Izen v. Commissioner, 64 T.C. 919 (1975). It is manifestly clear under these circumstances that this Court lacks jurisdiction to redetermine the income tax deficiencies for the years 1966 through 1969.

The second issue is more complicated. We must decide whether this Court also lacks jurisdiction with respect to the addition to tax under section 6651(a) for the late filing of the petitioner's Federal income tax return for the year 1969.

In two cases, Prather v. Commissioner, supra, and Izen v. Commissioner, supra, this Court concluded that it has jurisdiction over additions to tax even when the jurisdiction to determine the correct underlying tax deficiencies rests entirely with the bankruptcy court. Petitioner contends that the holdings in Prather and Izen are controlling on the jurisdictional issue relating to the additions to tax for fraud and negligence. He points out that respondent did not claim in his original or amended proof of claim any amount with respect to the addition to tax under section 6651(a) for the taxable year 1969. He argues that if he cannot contest the addition to tax in this Court, he will be deprived of any forum in which to litigate the question. Respondent counters with the assertion that Prather and Izen

are no longer viable and should not be followed on this particular jurisdictional question. Succinctly stated, respondent's position is that since the bankruptcy court has jurisdiction to determine the merits of the tax, it is the bankruptcy court, rather than the Tax Court, which has jurisdiction to determine the merits of a related addition to tax because section 6871(a) expressly provides for the assessment of the addition to tax as well as the tax.

The addition to tax was not scheduled on the original or amended proof of claim because of the Supreme Court's decision in Simonson v. Granquist, 369 U.S. 38 (1962), which construed section 57j of the Bankruptcy Act to bar the allowance in bankruptcy of claims for nonpecuniary loss penalties. But there is a difference between provability of a debt and the allowance of a claim or debt. Section 63 of the Bankruptcy Act describes the types of debts which may be proved. However problematic the nature of a "tax" may be, there is no doubt as to the provability of a tax claim arising prior to bankruptcy by subjecting it to the same formalities and time limitations as other provable debts. Whether a debt so proved will actually be allowed is a distinct issue, and one that depends not only on provability. See 3A Collier, Bankruptcy, pars. 63.05 and 63.26 (14th ed. 1975 and supp. 1977).

In King v. Commissioner, 51 T.C. 851 (1969), no consideration was given to whether amendments to the Bankruptcy Act made in 1966 give the bankruptcy court jurisdiction over a tax claim even though respondent has not filed a proof of claim. Section 2a(2A) of the Bankruptcy Act, which also was not considered in Prather and Izen, provides that bankruptcy courts have jurisdiction to:

Hear and determine, or cause to be heard and determined, any question arising as to the amount or legality of any unpaid tax, whether or not previously assessed, which has not prior to bankruptcy been contested before and adjudicated by a judicial or administrative tribunal of competent jurisdiction,

The jurisdictional grant under the first part of section 2a(2A) to hear and determine "any question arising as to the amount or legality of any unpaid tax" is limited by only two factors. First, the "tax" must not have been paid; and second, the disputed tax

"References herein are to sections of the Bankruptcy Act rather than to corresponding sections contained in Title 11, U.S.C.