item must not have been contested and adjudicated prior to bankruptcy. It is immaterial to the bankruptcy court's jurisdiction whether or not a proof of claim is filed for the "tax." Actually, if a proof of claim has been filed for the tax claim, the bankruptcy court has independent power under section 57 of the Bankruptcy Act to determine its validity and amount before allowing it. See 1 Collier, Bankruptcy, par. 2.22A (14th ed. 1974 and supp. 1976).

Section 2a(2A) is an express grant of jurisdiction, and there is now considerable authority for the proposition that the bankruptcy court does have jurisdiction to determine the dischargeability of tax claims, whether or not a proof of claim is filed. See In re Durensky, 377 F.Supp. 798 (N.D. Tex. 1974), appeal dismissed 519 F.2d 1024 (5th Cir. 1975), and cases cited therein. See also In re Durensky, F.Supp. (N.D. Tex. 1976, 39 AFTR 2d 77-310, 77-1 USTC par. 9267).

In the Bankruptcy Amendments of 1966, 1 Ga. L. Rev. 149, 172-173 (1967), Prof. Frank R. Kennedy, Reporter of the Advisory Committee on Bankruptcy Rules and a member of the National Bankruptcy Conference, wrote:

The new section 2a(2A) is a revision and transposition of section 64a(4)'s second proviso. Some difference of opinion has developed respecting the effect of the new language. Does it codify or change existing law? The Senate Finance Committee approved this amendment of the law, stressing at the time its understanding that it made no change in present law under which a bankruptcy court cannot adjudicate the merits of any claim, including a federal tax claim which has not been asserted in the bankruptcy proceeding by the filing of a proof of claim. Even if it were true that the amendment effects no change, it has long been clear that the bankruptcy court may determine in summary proceedings the amount and legality of any tax claim against property in the custody of the court, including any tax claim secured by a lien, whether or not a proof of claim is filed. The committee's reading of this explicit grant of jurisdiction would reduce it to a nullity, since it is clear without the provision that the bankruptcy court can determine the amount and legality of any claim duly filed in a bankruptcy case.

Amendments to the Bankruptcy Act made in 1970, which were not applicable nor considered in King, provide comprehensive procedures for determining the dischargeability of debts. Section 17(c) provides in pertinent part:

(1) The bankrupt or any creditor may file an application with the court for the determination of the dischargeability of any debt.

(3) After hearing upon notice, the court shall determine the dischargeability of any debt for which an application for such a determination has been filed, shall make such orders as are necessary to protect or effectuate a determination that any debt is dischargeable and, if any debt is determined to be nondischargeable, shall determine the remaining issues, render judgment, and make all orders necessary for the enforcement thereof.

With respect to section 17(c) it has been said, particularly in light of the provision of section 14(f) whereby judgments of nonbankruptcy courts can be rendered "null and void as a determination of the personal liability of the bankrupt," that "an interpretation giving pre-eminent jurisdiction to the bankruptcy court is clearly plausible." D. Cowans, Bankruptcy Law and Practice, sec. 433 at 102 (1973 supp.). And in The New Dischargeability Law, 45 Am. Bankr. L. J. 1, 32–33 (1971), Prof. Vern C. Countryman, a member of the Judicial Conference Advisory Committee on Bankruptcy Rules, wrote:

section 17c(3) does, I believe, require the bankruptcy court to take a tax case from the Tax Court or a district court when judgment has not yet been rendered on an undischarged tax claim. There is no suggestion in the legislative history that multiple litigation over tax claims was any less to be avoided than multiple litigation over any other claims. If the concern is for judicial dignity, no greater claim can be made for the Tax Court than for other courts of original jurisdiction, nor for a federal district court sitting in a tax case than for such a court sitting in any other case. Or if the concern is over the competence of referee to handle tax cases, or the wisdom of burdening them with such cases, Congress seems to have resolved that issue in 1966 when it added §2a (2A) giving the bankruptcy courts jurisdiction to "hear and determine, or cause to be heard and determined, any question arising as to the amount of any unpaid tax ✦✦✦ which has not prior to bankruptcy been contested before and adjudicated by a judicial or administrative tribunal -a provision which seems applicable to questions of tax liability committed to the bankruptcy court by §17c(3).

It is our present view that by establishing a different method for assessment and collection of taxes where bankruptcy intervenes, Congress intended that "tax" matters in their entirety be settled by the bankruptcy court under bankruptcy procedures instead of by the Tax Court under the procedures set forth in sections 6212(a) and 6213(a), except where the Tax Court petition antedates the petition in bankruptcy. See Kornberg v. Tomlinson, 341 F.2d 300 (5th Cir. 1965); Abel v. Campbell, 334 F.2d 339 (5th Cir. 1964); Cohen v. Gross, 316 F.2d 521 (3d Cir. 1963). This view is fortified by the plain language of section

2a(2A) of the Bankruptcy Act and a newly established trend in the case law where the vigorous exercise of the bankruptcy court's jurisdiction compels reconsideration of the King rationale. Several courts have held that bankruptcy courts do have jurisdiction, notwithstanding the absence of the filing of a proof of claim, to determine various tax matters in the context of the bankruptcy proceedings. See Bostwick v. United States, 521 F.2d 741 (8th Cir. 1975); Gwilliam v. United States, 519 F.2d 407 (9th Cir. 1975); In re Durensky, F.Supp. (N.D. Tex. 1976, 39 AFTR 2d 77-310, 77-1 USTC par. 9267).

By its terms section 2a(2A) of the Bankruptcy Act does not limit the jurisdiction of the bankruptcy court to debts claimable from the bankrupt's estate. See and compare Tanner v. Commissioner, 64 T.C. 415, 421 (1975), where we recognized that "there is a strong possibility that the bankruptcy court will take jurisdiction of the tax matter here in controversy under section 2a(2A)." In our opinion the underlying rationale of King has been sapped of its vitality and should no longer be followed because of the changes in the law and judicial climate.

Although it is true that the bankruptcy court may not allow a claim for an addition to tax in view of section 57j of the Bankruptcy Act, an addition to tax is not only a "tax" but also a provable debt under section 63 of the Bankruptcy Act. Section 6659(a), Internal Revenue Code, provides that additions to tax shall be paid upon notice and demand and shall be assessed, collected, and paid in the same manner as taxes, and that "any reference in this title to 'tax' imposed by this title shall be deemed also to refer to the additions to the tax." Clearly, in interpreting the provisions of the Internal Revenue Code, it is customary to treat additions to tax as if they were a "tax" We think an addition to tax which has not been paid is also an "unpaid tax" as that term is used in section 2a(2A) of the Bankruptcy Act. Therefore, we conclude that the bankruptcy court has jurisdiction under section 2a(2A) to hear and determine the validity of any addition to tax upon application of either the trustee or the bankrupt.

"Where, as here, the Commissioner sends a notice of deficiency after the adjudication of bankruptcy and during the pendency of such proceeding, the notice of deficiency is rendered a nullity. See King v. Commissioner, 51 T.C. at 863 (dissenting opinion of Judge Sterrett). Furthermore, in view of the 1966 and 1970 amendments to the Bankruptcy Act, the filing of a proof of claim by the Commissioner is not necessary to invoke the bankruptcy court's jurisdiction to hear and determine "any question arising as to the amount or legality of any unpaid tax." In re Dolard, 519 F.2d 282 (9th Cir. 1975).

The rationale of Prather and Izen is that this Court, rather than the bankruptcy court, has jurisdiction to inquire into the merits of nonpecuniary loss penalties because (1) such additions to tax are not allowable in bankruptcy and (2) to hold otherwise would deprive the petitioner of a prepayment forum in which to litigate the merits of the additions to tax. Upon further consideration it is now our judgment that the continued application of these factors will lead to situations where the ultimate resolution of the Tax Court proceeding will inevitably be held in abeyance pending a determination by the bankruptcy court as to the underlying tax deficiencies assessed since an addition to tax is dependent, at least in amount, upon the amounts of the deficiencies. Consequently, such situations will create truncated and bifurcated jurisdiction that is not only undesirable but also not mandated by the statutory scheme. We think that when the Internal Revenue Service files a proof of claim and subjects the tax to the jurisdiction of the bankruptcy court, the merits of any additions to tax assessed under section 6871(a) of the Code are properly within the jurisdiction of the bankruptcy court under section 2a(2A) of the Bankruptcy Act, notwithstanding that such additions to tax are not scheduled on the proof of claim. This view is supported by the legislative history of section 6871. Prior to 1926, the Federal income tax laws were silent with respect to the jurisdiction of the Board of Tax Appeals in the event a taxpayer became involved in a bankruptcy or receivership proceeding. In 1926, Congress enacted a statute dealing with the Board's jurisdiction in these cases and also provided for the immediate assessment of any deficiencies or additions to the tax in such situations without the necessity of issuing a notice of deficiency. The statutory prohibition against a taxpayer filing a petition for redetermination with the Board after his adjudication in bankruptcy was added to the income tax laws as section 282(a) of the Revenue Act of 1926. Significantly, the statutory language originally adopted included the phrase "but no petition for any such redetermination shall be filed with the Board after the adjudication of bankruptcy," which phrase appears essentially unchanged in section 6871(b).

A logical extension of the expanding construction of the jurisdiction of the bankruptcy court is that it should be able to assume jurisdiction over an addition to tax which relates to and

is, in amount, dependent upon a tax deficiency which is plainly, properly, and solely within the jurisdiction of the bankruptcy court. Such an extension would not run afoul of Simonson v. Granquist, 369 U.S. 38 (1962), if grounded on the view that the addition to tax is a provable debt under section 63 of the Bankruptcy Act. The validity of the addition to tax, dependent upon whether the petitioner herein can show that the failure to file was due to reasonable cause and not to willful neglect, can thus be asserted on application of either the trustee or the bankrupt under section 2a(2A) of the Bankruptcy Act. Indeed, since the matter of the addition to tax will have an effect on the petitioner when the bankruptcy proceeding is closed, it would seem that if the provability of the addition to tax was not raised by the trustee (who was apprised of the addition to tax in Form L-296), then the bankrupt, as an aggrieved person within the scope of section 39(c) of the Bankruptcy Act, may petition for review on his own behalf. See Menick v. Hoffman, 205 F.2d 365 (9th Cir. 1953); Caldwell v. Armstrong, 342 F.2d 485 (10th Cir. 1965).

One final, practical point. If the notice of deficiency had not been sent to the petitioner in this case, all else being equal, the bankruptcy court would have been the only forum available to him. Lerer v. Commissioner, 52 T.C. 358 (1969). A bankruptcy proceeding affords a petitioner a substitute prepayment tribunal. Rutas Aereas Nacionales, S.A. (Ransa) v. United States, 373 F.2d 213 (5th Cir. 1967).

For the reasons previously stated, we now regard the Prather and Izen opinions on the jurisdictional issue relating to the additions to tax as isolated exceptions to the statutory scheme of pertinent provisions of the Internal Revenue Code and the Bankruptcy Act. On this jurisdictional question the Prather and Izen opinions appear to be "at war with the policy against piecemeal" litigation and "the policy of expedited adjudication which undergirds federal bankruptcy law." In re Durensky, 519 F.2d 1024, 1030 (5th Cir. 1975). Consequently, to the extent the views expressed in those opinions are inconsistent with the views stated herein, the Prather and Izen opinions will no longer be followed.

Accordingly, we hold that this Court lacks jurisdiction to redetermine the income tax deficiencies for the years 1966 through 1969 and the addition to tax under section 6651(a) for