IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 96-60086
(Summary Calendar)
ABEL LOPEZ, JR.; MARIA G LOPEZ,
Petitioners-Appellants,
versus
COMMISSIONER OF INTERNAL REVENUE,
Respondent-Appellee.
Appeal from the United States Tax Court
(4572-95)
August 27, 1996
Before HIGGINBOTHAM, WIENER and BENAVIDES, Circuit Judges.
PER CURIAM:*
This appeal was instituted by Petitioners-Appellants Abel
Lopez, Jr. (Abel) and Maria G. Lopez (Maria) (collectively,
Taxpayers) after the United States Tax Court (Tax Court) dismissed
their timely filed informal petition for redetermination of income
*
Pursuant to Local Rule 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in Local Rule 47.5.4.
tax deficiencies asserted by Respondent-Appellee, Commissioner of
Internal Revenue (the Commissioner). The Tax Court asserted
jurisdiction over Taxpayers’ petition under § 6213 of the Internal
Revenue Code (I.R.C.) as to Maria but determined that it did not
have jurisdiction with regard to Abel: He had previously filed for
relief in bankruptcy, producing an automatic stay under Section 362
of the Bankruptcy Code, which stay prohibited Abel’s filing of the
instant petition in Tax Court. The Tax Court did not dismiss the
petition as to Maria, however, as she was not affected by the
automatic stay.
Both Taxpayers filed a notice of appeal. Concluding that we
do not have appellate jurisdiction, we dismiss the appeal as to
both.
I.R.C. § 7482 gives us jurisdiction to review decisions of the
Tax Court. A decision of the Tax Court is one that either makes a
final determination with regard to the tax deficiency at issue or
dismisses the proceeding.1 The order of the Tax Court from which
Taxpayers appeal dismissed as to Abel but did not dismiss as to
Maria; neither did it dismiss the proceeding. Rather, the
proceeding continues in Tax Court with Maria as the sole
petitioner. For purposes of this appeal, neither aspect of the Tax
Court’s order is a “decision of the Tax Court,” so we have no
1
Porter v. Commissioner, 453 F.2d 1231 (5th Cir. 1972).
2
appellate jurisdiction.2
For lack of appellate jurisdiction, Taxpayers’ appeal of the
Tax Court’s order dismissing Abel from the proceeding in that court
but continuing that proceeding as to Maria is
DISMISSED.
2
As we determine that we lack jurisdiction to hear an appeal
of the subject order because it is not a decision of the Tax Court,
we need not and therefore do not address the Commissioner’s
alternative grounds for dismissal, i.e., that Taxpayers’ notice of
appeal was not timely filed. Moreover, even if we were to
determine that we had jurisdiction to hear the appeal, it is
unlikely that we would reverse the order in question. Maria is not
a party to Abel’s bankruptcy proceedings; § 362(a)(8)’s automatic
stay prohibits the commencement of an action in the Tax Court
concerning the debtor; any petition filed in violation of
§ 362(a)(8) is void; Abel’s petition violated the automatic stay
and thus appears to have been properly dismissed as void by the Tax
Court; and, as Maria is not a party to Abel’s bankruptcy, the
automatic stay would not apply to her, so the Tax Court’s order
that the case continue with regard to Maria would likely be
sustained on appeal were it an appealable order, which it is not.
3