dissenting.
I am in agreement with the court’s analysis and disposition of the issues raised in Resyn’s appeal (at No. 87-5134) and, therefore, join parts I through III of the court’s opinion.
I must, however, respectfully dissent from part IV of the court’s opinion dealing with the government’s cross-appeal (at No. 87-5162). In that section of its opinion, the court holds that interest on a fraud penalty begins to accrue, in a bankruptcy case, no later than the date oh which an Internal Revenue Service district director issues a notice and demand for payment. Because the date on which that notice and demand was issued in this specific case does not appear on the record, the court here remands the case to the district court for that determination. I believe the district court correctly held that interest on fraud penalties assessed against a bankrupt taxpayer pursuant to the immediate assessment provisions of the former version of § 6871(a) does not accrue until the bankruptcy court adjudicates the validity of that particular penalty.
The government’s own regulation provides that notice and demand, in a bankruptcy case, should issue contemporaneously with the filing of the government’s proof of claim for taxes the bankrupt owes.1 26 C.F.R. § 301.6871(b) (1987). If that regulation was followed in this case, then, under the court’s holding, interest on the fraud penalties began to accrue on the date the government filed its claim, not on the date the bankruptcy court allowed the claim. This does not square with the sections of the Bankruptcy Act and the Internal Revenue Code in force when this taxpayer filed its Chapter XI petition on September 3, 1970.
To understand why this is so, some additional analysis and definition, are needed. Interest on “deficiencies” generally accrues as of the date the tax is due, by virtue of the general rule set forth in 26 U.S.C.A. § -6601(a). However, as the court correctly notes, interest on fraud penalties “shall be imposed only for the period from the date of the notice and demand to the date of payment.” 26 U.S.C.A. § 6601(e)(2)(A).
*670The initial step in the determination of an income tax liability over and above the amount the taxpayer returns is the government’s determination of a “deficiency.” 26 U.S.C.A. § 6211 (West Supp.1988). This is done administratively. The government then is required to give the taxpayer a statutory “notice of deficiency,” if the taxpayer is not under the protection of a bankruptcy court or has not waived his rights. 26 U.S.C.A. § 6212 (West Supp.1988). An “assessment of tax” cannot be made until ninety days after this notice of deficiency is mailed to the taxpayer; the assessment can be further delayed by the taxpayer’s filing of a petition with the Tax Court within that ninety days, in which case assessment cannot be made until the Tax Court has decided the amount of tax due and its decision has become final. 26 U.S.C.A. § 6213. The parties and the court are in agreement that a non-bankrupt taxpayer who files a petition with the Tax Court is not liable for interest on fraud penalties under § 6601(e)(2)(A) until the decision of the Tax Court becomes final.
However, when the taxpayer comes under protection of a bankruptcy court before the § 6213(a) statutory notice is given, § 6871 of Title 26 applies instead of § 6213(a). In its applicable form at the times relevant to this case, § 6871 allowed immediate “assessment” without the non-bankruptcy prerequisite of a § 6213 notice of deficiency. The text of the version of § 6871 applicable to this case provided:
(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 pend-ency 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.
26 U.S.C.A. § 6871 (since amended).2
The court assumes that interest under § 6601(e)(2)(A) begins to accrue on the bankruptcy court’s adjudication of a person as a bankrupt or a debtor. In doing so, the court fails to take adequately into account all the statutory prerequisites to both collection of tax and, in the case of fraud *671penalties, accrual of interest. The making of an assessment, whether in a bankruptcy or non-bankruptcy context, does not of itself permit the government to collect the tax. Collection generally may only begin upon “notice and demand” for payment. 26 U.S.C.A. § 6303 (West 1967). The government recognizes by its own regulation that notice and demand is required in a bankruptcy situation and provides that it shall be given, not when the person whose estate is being administered is adjudicated a bankrupt or a debtor, but only when the government files a proof of claim. See 26 C.F.R. § 301.6871(b). By statute, interest on fraud penalties is not imposed unless the taxpayer fails to pay the penalty “within 10 days from the date of notice and demand therefor.” 26 U.S.C.A. § 6601(e)(2)(A). If the taxpayer fails to timely pay the fraud penalty, interest on it accrues only from the date of the “notice and demand.” Id. Accordingly, the question on this cross-appeal, properly stated, is not whether interest on the fraud penalties begins to accrue on the date of assessment (that is, the date the petition for adjudication as a bankrupt or debtor is filed), but whether it accrues from the issuance of the notice and demand (by regulation, to issue contemporaneously with the filing of a proof of claim, see 26 C.F.R. § 301.6871(b)), regardless of whether the taxpayer contests the penalties in the bankruptcy proceeding.
If the court is placing the accrual date upon either assessment or the presentation of the notice and demand, it is necessarily starting the accrual of interest no later than the filing of a proof of claim in bankruptcy. This seems inconsistent with the applicable section of the Bankruptcy Act in effect when Resyn filed its Chapter XI petition, namely, § 2 a(2A). Section 2 a of the Bankruptcy Act, as amended in 1966, empowered the bankruptcy court to:
(2A) 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, and in respect to any tax, whether or not paid, when any such question has been contested and adjudicated by a judicial or administrative tribunal of competent jurisdiction and the time for appeal or review has not expired, to authorize the receiver or the trustee to prosecute such appeal or review[.]
Pub.L. No. 89-496, 80 Stat. 270 (1966), reprinted in 1966 U.S.Code Cong. & Ad. News 306 (since repealed). This court concluded that § 2 a(2A) vested bankruptcy courts with jurisdiction to determine the validity of tax penalties and interest. In re: Becker’s Motor Transp., Inc., 632 F.2d 242, 245 (3d Cir.1980).3
Even if we were to assume that the Internal Revenue Service is a competent administrative tribunal within the meaning of the Bankruptcy Act, and that the government’s assessment under § 6871(a) constitutes an adjudication by a competent tribunal, that “adjudication” does not occur before the commencement of the case, but at best contemporaneously with it. Consequently, I believe that the bankruptcy *672pourt has jurisdiction to determine the correct amount of tax, additions to tax, interest and penalties due from this taxpayer, that the taxpayer is entitled to such a determination and that, therefore, interest on the fraud penalty can only begin to accrue under § 6601(e)(2)(A) from the date that the bankruptcy court allows the claim, or otherwise adjudicates the validity of the ■ fraud penalty.
While the court correctly observes that there is no case authority precisely on point, two other courts of appeals have . concluded that former § 6871 entitles a ' taxpayer (whether a bankrupt under Chapter YII or a debtor under Chapter XI) to a review of tax deficiencies in the bankruptcy court similar to the review afforded in the Tax Court under § 6213. See Rutas Aereas Nacionales, S.A. v. United States, 373 F.2d 213 (5th Cir.1967) (stating that provisions of the Internal Revenue Code regarding the filing of a claim for income taxes in 9, bankruptcy proceeding provide for the taxpayer a substitute tribunal which, if he acts during the pendency of the proceedings, gives him the same protection with respect to an adjudication as that afforded taxpayers who file a petition in the Tax Court) (citing Abel v. Campbell, 334 F.2d 339 (5th Cir.1964)); Jamy Corp. v. Riddell, 337 F.2d 11 (9th Cir.1964) (holding that a taxpayer in a bankruptcy receivership situation has the right to an adjudication of tax claim in the bankruptcy or receivership court and stating that such review is not under circumstances less favorable than in the tax court), cert. denied, 380 U.S. 953, 85 S.Ct. 1085, 13 L.Ed.2d 970 (1965).4
I believe that the provision in former § ¡5871 for immediate assessment “despite the restrictions imposed by section 6213(a) upon assessments” was designed to protect the government’s interest in property of the bankrupt or debtor’s estate by permitting it to assert a claim with lien status as to after-acquired property instead of a mere unsecured claim. See United States v. Fidelity Philadelphia Trust Co., 459 F.2d 771, 773 (3d Cir.1972) (federal tax lien arises at time of assessment). Without this end run around § 6213, the Commissioner would be helpless to obtain a lien by assessing a deficiency against a taxpayer under the protection of a bankruptcy court not only during the ninety day waiting period but thereafter during the pendency of a Tax Court proceeding. This would give a debtor who successfully emerges from reorganization, or its lien creditors, an advantage over the government unavailable to others with respect to after-acquired property.
Congress’s establishment of a separate procedure for assessment5 in bankruptcy cases to insure the government’s lien status, despite the restrictions on assessment contained in § 6213, does not show that it intended to deprive a bankrupt taxpayer of the benefit of deferring accrual of interest on fraud penalties until the fact of fraud has been adjudicated. This court has read § 2 a(2A) of the old Bankruptcy Act as vesting the bankruptcy courts with jurisdiction to resolve the validity of tax penalties and interest. In re: Becker’s Motor Transp., Inc., 632 F.2d at 245. Nothing in § 6871 indicates that a taxpayer- who contests the government’s assessment during the pendency of his bankruptcy proceedings is not entitled to protection from the immediate accrual of interest that would flow from such an adjudication. Because Resyn contested the government’s assessment during the pendency of this bankruptcy proceeding, I believe interest on the assessed fraud penalty should run from the date that determination is considered final, that is, 30 days after December 9, 1981, the date upon which the bankruptcy court ren*673dered its decision. See 26 C.F.R. § 301.7481-1 (1987).
Accordingly, I dissent and would affirm the order of the district court in its entirety.
. Generally, claims for pre-petition fraud penalties and post-petition interest can be allowed only if the bankruptcy court finds that the debt- or has been rehabilitated. Such penalties and interest are assessed against the debtor personally, rather than against the bankruptcy estate, and are satisfied from assets that are after-acquired properties of the debtor. See In re Becker’s Motor Transp., Inc., 632 F.2d 242, 248 (3d Cir.1980), cert. denied, 450 U.S. 916, 101 S.Ct. 1358, 67 L.Ed.2d 341 (1981); Hugh H. Eby Co. v. United States, 456 F.2d 923, 925 (3d Cir.1972). In this case, the government entered into a stipulation for the creation of a fund which would satisfy tax penalties and interest. App. at 4-7.
. Section 6871, as amended in 1980, distinguishes between receiverships and Chapter XI proceedings. With respect to the latter, it now reads:
(b) Immediate assessment with respect to certain title 11 cases. — Any deficiency (together with all interest, additional amounts, and additions to the tax provided by law) determined by the Secretary in respect of a tax imposed by subtitle A or B or by chapter 41, 42, 43, 44, or 45 on—
(1) the debtor's estate in a case under title 11 of the United States Code, or
(2) the debtor, but only if liability for such tax has become res judicata pursuant to a determination in a case under title 11 of the United States Code,
may, despite the restrictions imposed by section 6213(a) on assessments, be immediately assessed if such deficiency has not theretofore been assessed in accordance with law.
26 U.S.C.A. § 6871 (West Supp.1988).
. 11 U.S.C.A. § 505(a) was derived, with only stylistic changes, from section 2a (2A) of the old Bankruptcy Act. See Historical and Revision Notes, 11 U.S.C.A. § 505 (West 1979 & Supp. 1988). Subsection (a) now reads:
(a)(1) Except as provided in paragraph (2) of this subsection, the court may determine the amount or legality of any tax, any fine or penalty relating to a tax, or any addition to tax, whether or not previously assessed, whether or not paid, and whether or not contested before and adjudicated by a judicial or administrative tribunal of competent jurisdiction.
(2) The court may not so determine—
(A) the amount or legality of a tax, fine, penalty, or addition to tax if such amount or legality was contested before and adjudicated by a judicial or administrative tribunal of competent jurisdiction before the commencement of the case under this title; or
(B) any right of the estate to a tax refund, before the earlier of—
(i) 120 days after the trustee properly requests such refund from the governmental unit from which such refund is claimed; or
(ii) a determination by such governmental unit of such request.
11 U.S.C.A. § 505(a) (West 1979 & Supp. 1988).
. In Rutas Aereas Nacionales, Abel, Jamy Corp., and Cohen v. Gross, 316 F.2d 521 (3d Cir.1963), the courts held that a taxpayer against whom the government had assessed tax deficiencies under section 6871 during the pendency of bankruptcy or receivership proceedings could not enjoin the government pursuant to section 6213(a) from collecting the assessed taxes once those proceedings had terminated. In each case, the court held that the bankruptcy or receivership court became the sole forum for adjudicating tax liability.
. I note, again, that accrual of interest follows from the taxpayer’s failure to pay the penalty upon notice and demand, and not from the government's act of assessment.