F.3d at 1133-1134.81 In contrast, settlement officers, appeals officers, and team managers lack not only final decisionmaking power but also these formal powers granted to ALJS under the Administrative Procedure Act. See 26 C.F.R. sec. 301.6330-1(d)(2), Q&A-D6, Proced. & Admin. Regs. CDP hearings are "informal in nature" and do not even require a face-to-face meeting. Id.

Since we find persuasive the reasoning of the Court of Appeals for the District of Columbia Circuit in its determination that ALJS for the FDIC do not exercise "significant authority", we hold that the lesser position of CDP "appeals officer" ("or employee") within the Office of Appeals likewise does not exercise "significant authority". We therefore hold that the positions of settlement officer, appeals officer, and team manager are not invested with "significant authority" under Buckley v. Valeo, 424 U.S. at 126.

Conclusion

An "officer or employee" of the IRS Office of Appeals who conducts CDP hearings has neither a position "established by Law" nor "significant authority" that is characteristic of an "officer of the United States" for purposes of the Appointments Clause. Without at all minimizing the importance of conducting a CDP hearing, that function does not involve an authority more "significant" than the authority exercised by other personnel important to tax administration (whether the Chief of the Office of Appeals (their superior), other highranking officials in the IRS, or many internal revenue collection personnel over the past 200 years) or as significant as the authority exercised by ALJS in many other agencies. To survey these thousands of employees important to the administration of law and single out IRS "appeals officers" as

81 The status of ALJs as employees or "Officers of the United States" is "disputed". Free Enter. Fund v. PCAOB, 516 U.S. at n.10, 130 S. Ct. at 3160 (citing Landry v. FDIC, 204 F.3d 1125 (D.C. Cir. 2000)). In Landry a divided panel of the Court of Appeals for the D.C. Circuit held that ALJs for the FDIC are not officers. However, in Free Enter. Fund v. PCAOB, dissenting Justice Breyer apparently indicates that he would hold that all ALJs are officers. 516 U.S. at 130 S. Ct. at 3180 (Breyer, J., dissenting) (citing Freytag v. Commissioner, 501 U.S. at 910 (Scalia, J., concurring in part and concurring in judgment)). No court has held contrary to Landry, and we follow it. However, even assuming arguendo that ALJs are "Officers of the United States", it does not follow that CDP hearing officers are likewise "officers". CDP hearing officers lack not only final decision-making power but also the formal powers granted to ALJs. Whether or not the position of ALJ constitutes an "Office[] of the United States", the lesser position of CDP "appeals officer" is not an "office".

somehow requiring constitutional appointment would be unwarranted. They are instead properly hired, pursuant to section 7804(a), under the authority of the Commissioner of Internal Revenue.

To reflect the foregoing,

An appropriate order will be issued.

DENNIS KLEIN, PETITIONER v. COMMISSIONER OF INTERNAL REVENUE, RESPONDENT

Docket No. 1382-10.

Filed July 27, 2010.

P filed a bankruptcy petition in December 2007 that the Bankruptcy Court dismissed in March 2009; and P filed a second bankruptcy petition in October 2009, 7 months after the Bankruptcy Court had dismissed his first case. Two weeks later R issued P a notice of deficiency for 2006. In January 2010 (13 weeks after he filed his second bankruptcy petition and while the second bankruptcy case was still pending) P filed a petition in this Court for redetermination of the deficiency. After the Bankruptcy Court dismissed P's second bankruptcy case, he filed a succession of four more bankruptcy petitions-three of which the Bankruptcy Court has dismissed; the latest case, his sixth, is still pending. Held: Pursuant to 11 U.S.C. sec. 362(c)(3) (2006), the automatic stay arising from P's second bankruptcy petition terminated in November 2009-i.e., 30 days after P filed that bankruptcy petition. The stay therefore did not bar the commencement of P's deficiency case under 11 U.S.C. sec. 362(a)(8), and this Court has jurisdiction to consider P's deficiency case. Held, further, pursuant to 11 U.S.C. sec. 362(c)(4), no automatic stay arose following P's third, fourth, fifth, and sixth bankruptcy petitions because P had two or more bankruptcy cases dismissed during the year before he filed each of those bankruptcy petitions. Therefore, 11 U.S.C. sec. 362(a)(8) does not stay the continuance of this deficiency case.

Dennis Klein, pro se.

Frederick C. Mutter, for respondent.

OPINION

GUSTAFSON, Judge: By a statutory notice of deficiency dated October 26, 2009, the Internal Revenue Service (IRS) determined a deficiency of $1,201 in petitioner Dennis Klein's

2006 Federal income tax, with additions to tax totaling $438.37 pursuant to section 6651(a)(1) and (2) of the Internal Revenue Code ("I.R.C.", 26 U.S.C.). Mr. Klein brought this case pursuant to I.R.C. section 6213(a), asking this Court to redetermine the deficiency and additions to tax. However, since December 2007 Mr. Klein has filed the following six petitions in the U.S. Bankruptcy Court for the Middle District of Pennsylvania (hereinafter, "the Bankruptcy Court”), five of which that court has dismissed: 1

Because those bankruptcy filings provoke questions about our jurisdiction over this case, we ordered the parties to show cause why the case should not be dismissed for lack of jurisdiction. For the reasons explained below, we hold that the automatic stay imposed by 11 U.S.C. section 362(a)(8) does not deprive us of jurisdiction or prevent the continuation of proceedings here.

Background

Mr. Klein's first two bankruptcy petitions

On December 11, 2007, Mr. Klein filed a bankruptcy petition-apparently his first-under Chapter 13 of the Bankruptcy Code. The Bankruptcy Court dismissed Mr. Klein's first bankruptcy case on March 11, 2009.

On October 13, 2009-i.e., seven months after the dismissal of his first bankruptcy case-Mr. Klein filed a second bankruptcy petition under Chapter 13. Mr. Klein did not move the Bankruptcy Court to issue any order pertaining to the automatic stay. 2

1 We take judicial notice of the records of these bankruptcy cases, pursuant to Rule 201 of the Federal Rules of Evidence.

2 The Government also did not move the Bankruptcy Court to issue any order pertaining to the automatic stay. One creditor, apparently a bank holding a mortgage on Mr. Klein's resiContinued

Notice of deficiency and Tax Court petition

On October 26, 2009, the IRS mailed to Mr. Klein the notice of deficiency for taxable year 2006.3 On January 15, 2010 (i.e., while his second bankruptcy petition was still pending, but more than 30 days after he filed his second bankruptcy petition), Mr. Klein filed his Tax Court petition commencing this case. He is the sole petitioner named in the petition. Mr. Klein resided in Pennsylvania when he filed his petition with this Court.

Mr. Klein's third, fourth, fifth, and sixth bankruptcy petitions

On February 9, 2010, the Bankruptcy Court dismissed Mr. Klein's second bankruptcy case (filed in October 2009); and on the same date Mr. Klein filed his third bankruptcy petition under Chapter 13. The Bankruptcy Court dismissed that third case on March 3, 2010. On March 11, 2010, Mr. Klein filed his fourth bankruptcy petition under Chapter 13. On April 6, 2010, the Bankruptcy Court dismissed that fourth case (and denied a motion to reconsider the dismissal of his third case); and on the same date Mr. Klein filed his fifth bankruptcy petition. The Bankruptcy Court dismissed the fifth case on May 25, 2010; and Mr. Klein filed his sixth Chapter 13 petition on June 2, 2010. The bankruptcy trustee has filed a motion to dismiss that sixth case for failure to file a complete list of creditors; but as far as we know, the sixth case is still pending.

Discussion

Proceedings in this case overlap with bankruptcy proceedings in two significant respects: First, Mr. Klein filed his petition here in January 2010-after the October 2009 filing of his second bankruptcy petition and before the Bankruptcy Court dismissed that second case in February 2010. Second, Mr. Klein's sixth bankruptcy petition filed in June 2010 is

dence, moved for relief from the automatic stay, filing the motion more than 30 days after Mr. Klein filed his second bankruptcy petition. The Bankruptcy Court did not rule on the bank's motion for relief but effectively terminated the automatic stay when it dismissed the second case altogether in February 2010. See 11 U.S.C. sec. 362(c)(2); Lomagno v. Salomon Bros. Realty Corp., 429 F.3d 16, 17 (1st Cir. 2005).

3 Under 11 U.S.C. section 362(b)(9)(B), a bankruptcy filing does not operate as a stay of "the issuance to the debtor by a governmental unit of a notice of tax deficiency". Consequently, the propriety of the IRS's issuance of the notice of deficiency is not in question here.

apparently still pending. These overlaps raise questions about the automatic stay provisions of the bankruptcy law. I. The general rule

Under 11 U.S.C. section 362(a), the filing of a bankruptcy petition

(8) the commencement or continuation of a proceeding before the United States Tax Court * * * concerning the tax liability of a debtor who is an individual for a taxable period ending before the date of the order for relief under this title. [Emphasis added.]

Thus, as a general rule, the filing of a bankruptcy petition gives rise to an automatic stay that bars the "commencement or continuation" of a Tax Court suit. If nonetheless a petition is filed with the Tax Court after a bankruptcy petition has been filed, then the automatic stay bars "commencement" of the Tax Court suit. In that circumstance the Tax Court lacks jurisdiction over the deficiency proceeding and must dismiss the case. Thompson v. Commissioner, 84 T.C. 645, 648 (1985). If a Tax Court petition is timely filed before the bankruptcy petition is filed, then the automatic stay bars the "continuation" of the Tax Court case; and proceedings in the Tax Court normally are stayed until the case is closed or dismissed or a discharge is granted or denied, see 11 U.S.C. sec. 362(c)(2), or the stay is lifted by the bankruptcy court, see 11 U.S.C. sec. 362(d).

The automatic stay generally prevents the commencement or continuation of any proceedings in this Court-thereby vesting in the bankruptcy court the discretion to control the adjudication of tax liabilities. The bankruptcy court either can maintain the stay and redetermine the liability itself, see 11 U.S.C. sec. 505(a), or can lift the stay and allow a Tax Court case to proceed, Halpern v. Commissioner, 96 T.C. 895, 902 (1991). This fosters judicial economy by avoiding duplicative adjudication. 4

4 The provisions in 11 U.S.C. section 362(c)(3) and (4) that terminate a stay or keep it from going into effect thereby create the possibility of duplicative proceedings in the Tax Court and the Bankruptcy Court (a circumstance that does not appear to be present here). However, in such an instance both parties in the Tax Court case would also be parties in the bankruptcy case, and they would therefore have the opportunity to advise each court that the other court Continued