JOHN R. BROWN, Chief Judge:

A weapon, little known and previously not too often employed, having atomic potentialities in the arsenal of the tax gatherer is the power of IRS to order quick termination of a taxpayer's tax year with summary demand for immediate full payment with the sanctions of levy, seizure and sale. The issue in this appeal in a now much contested area as this technique is found to be an effective tool in the relentless struggle against the traffic in drugs, is whether these awesome consequences can be consummated without a deficiency notice. If one is required, the present appellee taxpayer wins at least for the time being. But the result far transcends immediate relief to this litigants For a holding against the necessity for a deficiency notice deprives the "victim" of this summary administrative procedure of any right of prepayment judicial review by petition to the Tax Court and remits him to payment, filing of claim for refund and suit in the District Court for refund.

We hold that in the intricate structure of the Tax Act — which we painstakingly, perhaps painfully painstakingly dissect, since the Circuits are divided on it — Congress could, and did, not have any such discriminate purpose and consequently a proper construction is to require the deficiency notice. Consequently we affirm.

On June 11, 1969, the BNDD, pursuant to a warrant searched two buildings in Dallas, Texas seizing a substantial amount of property belonging to appellee (Elzie Clark) in the process. Appellee was notified by letter dated July 14, 1969 that his taxable period had been immediately terminated pursuant to the quick termination procedure of § 6851(a) of the Internal Revenue Code and that a tax of $104,697.20 for this period had been assessed and was immediately due and payable. The IRS posted notices of levy on and filed federal tax liens against real estate owned by appellee and served notices of levy on three Dallas banks, the Dallas Sheriff's Department and the Regional Director of the BNDD requesting that any property or monies of appellee should be surrendered to cover the alleged tax liability.

On November 10, 1969 appellee brought this suit in the District Court pursuant to § 6213(a) seeking to remove clouds on the title and to enjoin the levy on and seizure of his property on the grounds that the District Director should have, but had not issued a notice of deficiency to appellee. Finding that a deficiency notice was required, the District Court ordered that the assessment and levy would be enjoined unless the IRS issued a notice within 60 days. The IRS has appealed.

The Procedure — Ordinary And Jeopardy

Ordinarily, if, after the taxpayer has filed a return following the close of the tax year, the IRS has reason to believe that a taxpayer has failed to pay a portion of or the entire tax due, it will determine that a deficiency exists. In order to commence proceedings to recover the deficiency, the IRS is required to send the taxpayer a formal notice of deficiency by secured mail. The taxpayer may then contest liability in either of two alternate forums. The taxpayer may file a petition for redetermination in the Tax Court within 90 days of receipt of the deficiency notice (hence in the parlance of the tax-wise the deficiency notice has become known as a "90-day letter") pursuant to § 6213 or the taxpayer may choose to pay the alleged deficiency, file a claim of refund, and bring a suit for refund in the District Court in six months.

The jurisdiction of the Tax Court to redetermine tax liability prior to payment is explicitly based on the issuance of a deficiency notice. Concomitantly, § 6213(a) permits the taxpayer to obtain an injunction against the assessment or levy of a deficiency in the absence of the requisite deficiency notice and opportunity to petition the Tax Court.

Of course, even in the idyllic state of self-imposed taxation, the Congress long ago recognized that the ordinary procedures will at times prove inadequate. Thus two separate provisions of the Code grant the IRS special powers and procedures where there is reason to believe that the collection of the revenue is in jeopardy. Section 6861 authorizes the IRS to immediately assess a deficiency and demand immediate payment where the Secretary or his delegate believes that the assessment or collection of the deficiency would be jeopardized by delay. However, under § 6861(b) the Secretary is required to mail a notice of deficiency to the taxpayer within 60 days of the jeopardy assessment. Therefore, despite the summary assessment authority, the taxpayer retains the right to petition the Tax Court for a redetermination. But despite assessment, levy and seizure, the IRS is prohibited from disposing of the taxpayer's assets during the time in which the taxpayer may petition the Tax Court or during the pendency of the Tax Court proceedings..

In addition to § 6861, the IRS is given the § 6851 quick termination power to terminate the taxpayer's taxable period "[i]f the Secretary . . . finds that [the] taxpayer designs quickly to depart from the United States or to remove his property therefrom, or to conceal himself or his property therein, or to do any other act tending to prejudice or to render wholly or partly ineffectual proceedings to collect the income tax . . . ." The IRS may then serve notice and demand payment of any tax determined to be owing for that year or the preceding tax year. Under § 6851(b) the taxpayer may reopen his taxable period after it has been terminated by filing a true and accurate return of income tax for the taxable period in question or the IRS may open the tax period as often as necessary if it discovers additional income earned within the taxable period.

Unlike § 6861, however, § 6851 makes no mention of deficiencies or Tax Court review nor does it explicitly provide assessment authority.

This focuses on the issue in this litigation of whether a quick termination taxpayer whose taxable year has been terminated pursuant to § 6851 is entitled to P the same procedural safeguards which are available to the taxpayer who is the subject of a § 6861 jeopardy assessment, Specific protections in issue have been recently summarized as follows:

1. The IRS is required to send a deficiency notice within sixty days after the assessment, thus enabling the jeopardy taxpayer to litigate in the Tax Court. § 6861(b). If the IRS does not comply with this requirement, the assessment and levy (or seizure) may be enjoined by the federal courts. § 6213(a); United States v. Ball [4 Cir., 1964, 326 F.2d 898], supra.

2. The jeopardy taxpayer can stay all collection action pending the Tax Court's decision if he is able to post an adequate bond. § 6863(a).

3. Property seized pursuant to the assessment may not, in general, be sold during the pendency of litigation in the Tax Court. § 6863(b)(3)(A).

4. The IRS "may" abate the jeopardy assessment if it "finds" that jeopardy does not exist. § 6861(g).

The Developing Case Law

Until quite recently there has been a paucity of litigation on the issue before this Court despite the lengthy codal coexistence of §§ 6851 and 6861. The emergence of the issue seems primarily attributable to the Service's recent pattern of its willingness to utilize § 6851 in conjunction with requests from BNDD in narcotics enforcement activities.

Genesis: In The Beginning

It all started back in 1938 when in Ludwig Littauer Co. v. Commissioner, 1938, 37 B.T.A. 840, appeal dismissed, 2 Cir., Dec. 31, 1938 (unpublished), the Board of Tax Appeals (the predecessor of the Tax Court) had occasion to consider whether the procedural safeguards provided by § 273 of the Revenue Act of 1936 (the predecessor of § 6861) were applicable to a termination of the taxable year under § 146 of the Revenue Act of 1936 (the predecessor of § 6851). The BTA recognized that both § 273 [§ 6861] and § 146 [§ 6851] were concerned with the collection of jeopardized revenue. However, reasoning that "§ 146(a) [§ 6851], presupposes a more exigent situation of jeopardy than that covered by a § 273 [§ 6861]," the BTA concluded that the deficiencies notice procedure of § 273 [§ 6861] did not apply to § 146 [§ 6851] in the absence of an explicit statutory mandate to that effect. 37 B.T.A. at 842. Pointing out that the taxpayer could avoid immediate payment by posting a bond and citing a Revenue Ruling that referred to the taxpayer's ability to file a full year return after having been subjected to a short year termination — the BTA concluded that a statutory deficiency could only be created by "a determination of correct tax liability" at the expiration of the full taxable year. 37 B.T.A. at 843. Having determined that the "thing" created by § 146(a) [§ 6851) was not a deficiency, the BTA concluded that it "is but a provisional statement of the amount which must be presently paid as against the impossibility of collection". 37 B.T.A. at 842.

Littauer was followed without further elaboration in Puritan Church of America v. Commissioner, 1951, 10 TCM 485, aff'd per curiam, 1953, 93 U.S.App.D.C. 129, 209 F.2d 306, cert. denied, 1954, 347 U.S. 975, 74 S.Ct. 787, 98 L.Ed. 1115.

There it stood until 1969 when District Judge Frank Kaufman in a lengthy and scholarly opinion in Schreck v. United States, D.Md., 1969, 301 F. Supp. 1265 held that the quick termination taxpayer was indeed entitled to a deficiency notice when his tax year was terminated pursuant to § 6851. After carefully tracing the development of § 6851, § 6861 and their predecessors, Judge Kaufman rejected the Government's argument that § 6851 granted independent assessment authority. Finding Littauer unpersuasive he observed that the Treasury's own definition of "deficiency" in its regulations was broad enough to encompass "the thing" created when a taxable year was quick terminated under § 6851. Emphasizing the clear Congressional policy of providing the taxpayer with an opportunity prompts to litigate liability prior to payment, Judge Kaufman concluded that the power to assess a deficiency under § 6851 must arise under § 6861 and with it comes the procedural safeguards found in the latter section. In 1971 in Williamson v. United States, 71-2 USTC ¶ 9753, the Seventh Circuit followed Littauer in an unpublished order.

In early 1973, District Courts in the Fifth, Sixth and Ninth Circuits followed Schreck.

In Irving v. Gray, 2 Cir., 1973, 479 F.2d 20, a case involving the notorious bogus biographer of Howard Hughes whom the IRS suspected of intending to remove his ill-gotten assets from the reach of IRS, the Second Circuit determined that the deficiency procedure was inapplicable to a § 6851 quick termination. The Court rejected Schreck, reasoning that § 6201 provided independent assessment authority even if § 6851 did not and that the taxpayer had an adequate remedy either by payment of the tax and filing of a claim or by filing a full year return, paying and reporting an overpayment, and then filing a refund action in the District Court in six months.

To round out the picture the Sixth Circuit has just recently declared that the notice is required.

A careful consideration of the pertinent Code provisions, legislative history and the policies that Congress has sought to further convinces us of several critical matters. First, the "thing" created by an assessment following a short year termination under § 6851 falls within the statutory definition of "deficiency". Second, the assessment authority for a § 6851 deficiency is found in § 6861. Third, the procedural safeguards mandated by § 6861, particularly the right to petition the Tax Court for redetermination, are applicable to a § 6851 quick termination.

Is The "Thing" A Deficiency?

Tax Court jurisdiction to redetermine liability prior to payment is predicated on the existence of a deficiency within the meaning of the Code. Thus the formal deficiency notice prescribed by § 6213(a) or § 6861(a) (see notes 6 and 15, supra) in the case of a jeopardy assessment has been described as "[a] ticket to the tax court." Corbett v. Frank, 9 Cir., 1961, 293 F.2d 501, 502. See Mason v. Commissioner, 5 Cir., 1954, 210 F.2d 388. The Government argues that the liability created when a tax period is terminated pursuant to § 6851 and a tax is assessed is not a "deficiency", and therefore the taxpayer is not entitled to petition the Tax Court for a redetermination.

Section 6211 defines a deficiency (note 8, supra). But the applicable regulation § 301.6211-1 amplifies it further:

If no return is made, or if the return (except a return of income tax pursuant to sec. 6014) does not show any tax, for the purpose of the definition "the amount shown as the tax by the taxpayer upon his return" shall be considered as zero. Accordingly, in any such case, if no deficiencies with respect to the tax have been assessed, or collected without assessment, and no rebates with respect to the tax have been made, the deficiency is the amount of the tax imposed by subtitle A, chapter 11, or chapter 12. . . .

As § 6211 illustrates, ordinarily a deficiency is created when the taxpayer has filed a return at the close of his tax period and the IRS determines that the taxpayer's tax liability exceeds that amount which has been set forth in his return. In other words, an additional tax is due and payable. The regulation recognizes, however, that the Service may determine a deficiency in the absence of a return. See Rambo, supra 492 F.2d at 1064. Indeed, § 6211 in a very technical sense undertakes to define "deficiency" "if a return was made by the taxpayer" with no mention of that obvious class of under-payers who do not file a return.

When the Secretary finds that the collection of the revenue is jeopardized within the standards set forth in § 6851(a) he shall

declare the taxable period for such taxpayer immediately terminated and [cause] notice of such finding and declaration to be given the taxpayer, together with a demand for immediate payment of the tax for the taxable period so declared terminated . . . . (Emphasis added.)

The taxpayer is informed that his taxable year, which would have otherwise run its normal course, has been terminated and that the tax for the terminated year is immediately due and payable. In short, where the day before he literally did not then owe a tax, he is on receipt of this demand required to pay more than what he was (the day before) obligated to do.

In Littauer the Board of Tax Appeals viewed this event not as the final imposition of a tax but rather as a type of mandatorily imposed bond to ensure payment at the end of the normal taxable period. However, § 6851 itself clearly provides that immediate tax liability has been imposed. Although § 6851(b) grants the taxpayer the option of re-opening his tax period by filing "a true and accurate return of the items of gross income and of the deductions and credits allowed under this title for such taxable period, together with such other information as the Secretary or his delegate may by regulations prescribe . . . ." the tax remains immediately payable unless such bonding option is exercised and the taxpayer's assets remain immobilized.

Although perhaps not legally significant, it is almost certain that the taxpayer who receives a letter terminating his tax year, assessing a tax in excess of his existing assets and demanding immediate payment of the alleged taxes due, and then shortly discovers that all of his existing assets have been seized, would find neither comfort nor reason in the IRS's explanation that the opportunity for prompt adjudication of the alleged liability is precluded because the "thing" which has been assessed is not technically a deficiency.

The recent case of Nino Sanzogno, 1973, 60 T.C. 321 suggests that the Tax Court is no longer comfortable with the Littauer rationale. Petitioner, an Italian opera maestro, earned approximately $8,000 during a four week performance with the Lyric Opera of Chicago in 1965. On his departure to Italy, the IRS terminated his tax year under § 6851(a) and required him to obtain his "sailing permit" pursuant to § 6851(d) by filing a Form 1040C — a Departing Alien Income Tax Return. The maestro. presumably in a spirit of musical and official harmony, filed the form and was permitted to depart. Long after the curtain had fallen and the last United States bow forgotten he received over three years later a notice of deficiency pertaining to the income earned in 1965. Petitioner argued that by filing a Form 1040C he had filed a return within the meaning of § 6501 and thus the three-year statute of limitations had expired. The IRS contended that a 1040C was not a "final return" and that the petitioner was required to file a Form 1040B at the close of his normal tax year in order to trigger the statute of limitations.

In rejecting the argument of IRS, the Tax Court observed:

Form 1040C filed by petitioner herein covered his entire taxable year. The taxable year of petitioner ended on October 19, 1965, the date that the district director terminated it.[2] The form 1040C was a short-period return but was, nevertheless, a return and is recognized as such in section 443(a)(3) which refers to section 6851. See also, sec. 1.443-1(a) (3), Income Tax Regs., which directs the reader's attention to section 6851 and the regulations under that section. Respondent argues that the taxable year is the calendar year 1965 because petitioner could have returned to the United States and earned additional income before December 31. If that had occurred, the district director could have reopened the taxable year of petitioner. There is no evidence that the taxable year of petitioner was reopened.

[2] It is possible that our holding is in some conflict with the rationale of our opinion in Ludwig Littauer Co., 37 B.T.A. 840 (1938). However, the issue in that case is not before us here. Irving v. Gray, 344 F. Supp. 567 (S.D.N.Y. 1972), on appeals 479 F.2d 20 (C.A. 2, 1972); Williamson v. United States, an unreported case (N.D.Ill. 1969, 24 A.F.T.R.2d 69-5561, 69-2 U.S.T.C. par. 9681), affirmed in an unreported opinion (C.A. 7, Apr. 8, 1971); contra, Schreck v. United States, 301 F. Supp. 1265 (D.Md. 1969); Clark v. Campbell, 341 F. Supp. 171 (N.D.Tex. 1972); Rambo v. United States, 353 F. Supp. 1021 (W.D.Ky. 1972).

60 TC at 325.

In a concurring opinion, Judge Simpson declared, "I wholly agree with the results reached by the majority. In my opinion, such results are inconsistent with the rationale of this Court's opinion in Ludwig Littuer Co., 37 B.T.A. 840 (1938), but in my judgment, that rationale should no longer be followed . . .", citing Schreck, Rambo and the District Court decision in the instant case.

60 TC at 330.

Thus the Tax Court now appears to recognize that from the taxpayer's standpoint a § 6851 quick termination brings the tax period to a close and creates a liability not unlike that which would exist at the close of the normal tax period. Such an interpretation supports the conclusion that the tax liability created subsequent to a § 6851 quick termination falls within the Codal definition of deficiency as amplified by the regulations.

We agree with Schreck that § 6211 and the applicable regulations are broad enough to cover the "thing" created by an assessment following a § 6851 termination. See Schreck, supra, 301 F. Supp. at 1277; Rambo, supra, 492 F.2d at 1064. What is more, we believe that the liability created under § 6851 is as a matter of fact the same type of "thing" as a § 6211 deficiency. We see no significant distinction, nor any need for one. Since the tax liability which becomes immediately due and payable following a § 6851 quick termination fits within the Codal definition of deficiency, a prepayment redetermination of that liability would be within the jurisdiction of the Tax Court.

The Source of Assessment

In an effort to determine whether the deficiency notice procedure is applicable to a § 6851 quick termination, the courts have given consideration to the source of the assessment authority for the tax which § 6851 presupposes. As we noted earlier, § 6861 explicitly provides its own assessment authority while there is no mention of assessment under § 6851. If assessment of the § 6851 tax due is indeed grounded sufficiently in § 6861 it would be impossible to avoid the conclusion that the deficiency notice procedure so carefully prescribed in § 6861 is likewise applicable to § 6851. So the source of the assessment is a significant argument in favor of reading into § 6851 the § 6861 deficiency notice.

Originally, in Schreck the IRS contended that § 6851 implicitly contained its own assessment authority. That contention was rejected by the Court and the IRS has since abandoned it. Instead the IRS successfully argued in Irving and here contends that § 6851, assessment authority is found in § 6201, the general assessment authority provision of the Code.

The Government argues that assessment under § 6851 cannot be dependent upon § 6861 since the predecessor of § 6851 was enacted prior to § 6861. However, as Judge Kaufman delineates so well in Schreck, the evolution of our revenue system from an unintegrated collection of separate revenue acts through two careful codifications, may well create new affiliations between long existent, but formerly disparate provisions.

In concluding that assessment authority for § 6851 liability is found in § 6861 rather than § 6201 (see note 24, supra), we are particularly cognizant of the necessity of reaching a result that is in harmony with "our carefully structured twentieth century system of tax litigation." Flora v. United States, 1960, 362 U.S. 145, 176, 80 S.Ct. 630, 647, 4 L.Ed. 2d 623, 641.

Section 6201 provides generally the authority to assess uncontested taxes. Where there is no contest (e. g. payment in accordance with the return) there is no great need for a prepayment forum. But where there is a dispute as to the liability in the ordinary run-of-the-mill non-jeopardy situation the IRS must proceed under the deficiency notice procedure contained in §§ 6211-6215.

When a jeopardy assessment is made pursuant to § 6861, a similar deficiency notice procedure is applicable — the chief difference being that the taxpayer receives his deficiency notice and right to petition the Tax Court subsequent to the assessment. Nevertheless, Congress has tempered this awesome power of immediate assessment by providing welcome procedural protection in the form of an opportunity for pre-payment litigation.

Like § 6861, § 6851 grants the IRS extraordinary powers to meet those situations where the collection of the revenue may be in jeopardy. Sections 6851 and 6861 are analogous — indeed both appear in the subchapter entitled JEOPARDY. It would be unsound construction to treat these two equally potent and similarly oriented provisions in the disparate manner which the Government has proposed. See Rambo, supra, 292 F.2d at 1064.

As the District Court in Lisner v. McCanless, supra, observed, the tax procedure has been structured to provide for ordinary uncontested assessment, normal year-end deficiency assessment, and jeopardy assessment. Section 6201 provides the ordinary assessment authority, § 6213 provides assessment authority for the year-end deficiency situation and § 6861 provides authority for jeopardy assessments. Section 6851 clearly covers a jeopardy situation and the assessment subsequent to a § 6851 quick termination is as to all of its practical consequences a jeopardy assessment. What it is in fact, it is also in law. To find the assessment power for a § 6851 assessment in the ordinary assessment provision (§ 6201) rather than the jeopardy assessment provision would be a complete derogation of the obvious and carefully considered pattern of the Code.

Thus we are in complete agreement with the observations of Judge Copple in Lisner, supra.

It is axiomatic that a true code — which Congress intended here to create — is primarily different from statutes in that a comprehensive, cross-related scheme of laws is presented. No one section can be interpreted without reference to its place in the scheme of things . . . .

. . . To imagine that Congress, which enacted these two sections under the general title "Subchapter A — Jeopardy," intended the sections to be used as "wild cards" without reference to its carefully constructed collection scheme, is to ignore plain english [sic].

* * * * * *

. . . Section 6861 is the only assessment authority in the Code designated "jeopardy." The attempt of the government to bypass the procedural requirements of section 6861 in this and other cases has led it on a path of convolutions and strained interpretations, instead of an attempt to find order in a highly structured code.

356 F. Supp. at 401-403 (footnotes omitted).

Furthermore, if we were to find the assessment authority for a § 6851 deficiency in § 6201 rather than § 6861 we would in effect invite the IRS to evade the procedural safeguards so deliberately embodied in § 6861 by relying on § 6851 when a jeopardy situation arises. In this way the right to Tax Court review could be totally cut off for all jeopardy situations, both § 6851 and § 6861.

We hold that the authority to assess a § 6851 deficiency must be found in § 6861.

The Right To Litigate Now And Pay Later

The clear Congressional intention to provide all taxpayers with a forum in which to contest income tax liability prior to payment is a compelling factor in our conclusion that the § 6861 deficiency notice procedure applies to the § 6851 quick terminated taxpayer.

In 1924 Congress recognized that.

The right of appeal after payment of the tax is an incomplete remedy, and does little to remove the hardship occasioned by an incorrect assessment. The payment of a large additional tax on income received several years previous and which may have, since its receipt, been either wiped out by subsequent losses, invested in non-liquid assets, or spent, sometimes forces taxpayers into bankruptcy, and often causes great financial hardship and sacrifice. These results are not remedied by permitting the taxpayer to sue for the recovery of the tax after this payment. He is entitled to an appeal and to a determination of his liability for the tax prior to its payment.

H.R. Rep. No. 179, 68th Cong., 1st Sess. (1924). Therefore, Congress created the Board of Tax Appeals as a forum in which the taxpayer could obtain an adjudication of tax liability prior to payment. Initially the Board served in an essentially advisory capacity. In 1926, however, Congress transformed the Board into a more traditional adjudicatory body forcing the taxpayer to choose between litigation prior to payment in the Board of Tax Appeals or subsequent to payment in the District Court. Concurrently, Congress enacted § 279 (the predecessor of § 6861) which granted the subject of a jeopardy assessment the right to receive a deficiency notice and petition the Board of Tax Appeals for a redetermination. Thus as the law now stands the taxpayer has the right to an adjudication of income tax liability prior to payment regardless of whether the tax has arisen pursuant to an ordinary deficiency or a jeopardy assessment.

The power to make a jeopardy assessment under § 6861 or to order a quick termination declaring all taxes immediately due and payable under § 6851 is for both, both summary in nature and awesome in effect.

As our brothers in the Seventh Circuit once noted, "[t]here is little doubt but what a jeopardy assessment is a statutory label for the sovereign's stranglehold on a taxpayer's assets." Homan Mfg. Co. v. Long, 7 Cir., 1957, 242 F.2d 645. The stranglehold may be equally applied by § 6851 or § 6861 and to the neck there is no difference. Under either provision by summarily immobilizing his assets the financial disaster may overcome the taxpayer. Thus the taxpayer may become "indigent overnight". One commentator has observed that:

The action of freezing the assets of the taxpayers prevents them from paying fire insurance premiums on their property, making necessary repairs, paying real estate taxes and from using their funds for the protection of their property and for ordinary living expenses.

Another has noted that the freezing of the taxpayer's assets may result in "prevention of posting of the necessary bond, impossibility of adequate defense, and eventual loss of the property at a forced sale." We ought not to lightly disregard the apparent Congressional intention to temper the effects of this potentially devastating summary power.

As noted earlier there are certain protections aside from the right to petition the Tax Court available to the victim of a jeopardy assessment. However, these safeguards may be of questionable value to the victim of a short year quick termination. The taxpayer may stay immediate enforcement of proceedings under § 6851 or § 6861 by furnishing a bond equal to the amount of the assessment. Despite our vantage 80 far removed from the real world of business we know enough of the economic facts of life to recognize that a jeopardy taxpayer will find it difficult, if not impossible, to obtain a bond once all of his assets have been placed beyond his control. Some courts have said that the right to file a bond may be an "illusory remedy" if not a complete "mockery".

Indeed, it is the practicable inadequacy of the right to bond that makes so valuable the prohibition on sale of seized assets once the petition to the Tax Court may be and is filed. See discussion post and § 6863 (note 18, supra).

The IRS may abate the assessment under § 6861(c) if it is deemed excessive or under § 6861(g) if jeopardy does not exist Such power seems to be wholly discretionary and will be exercised only where the taxpayer is capable of persuading the District Director in conference that a mistake has been made. The abatement power necessarily offers limited protection.

Where the taxpayer's assets have been frozen, the only meaningful remedy is to obtain an adjudication of liability as promptly as possible. This is given to a § 6861 jeopardy taxpayer.

Under § 6861(b) the IRS must send the taxpayer a deficiency notice within 60 days of the assessment. The taxpayer then has 90 days to petition for a redetermination in the Tax Court. At this point a very valuable protection comes into being — and one wholly unavailable for a taxpayer forced to say, file claim and then sue for refund, and in no way dependent upon the jeopardy taxpayer's unlikely ability to make a bond. For the Code expressly provides that the IRS may not sell the taxpayer's assets during [i] the period in which the taxpayer may apply for Tax Court review nor [ii] during the course of the proceedings. Thus the Tax Court can provide a jeopardy taxpayer, whether of the § 6851 or § 6861 variety, a reasonably speedy forum for obtaining an adjudication of the liability which has been so summarily imposed and before his property is forever lost to him by seizure and sale.

The taxpayer's other alternative — full payment — followed by a refund suit in the District Court does not offer as speedy or as effective an opportunity for review. The taxpayer must file a claim for refund with the Secretary and then wait six months before bringing the suit for refund. Obviously, when all of the taxpayer's assets have been placed beyond his control, the six month waiting period can prove to be an unbearable delay.

And as Judge Kaufman has so graphically illustrated, the road to the District Court may harbor a multiplicity of obstacles for the § 6851 taxpayer. See Schreck, supra note 21, 301 F. Supp. at 1280-1281. For instance, the IRS may levy on the taxpayer's property without applying the property seized to the tax liability assessed or the property seized may not cover the full amount of the assessment. In either case the taxpayer would be barred from the District Court by the Flora full payment rule. or as was apparently the case is Schreck, the IRS may not apply the property seized from the taxpayer to the outstanding liability because of a pending forfeiture proceeding.

This analysis reflects that under nearly every likely circumstance the refund suit in the District Court cannot, and does not, provide the § 6851 quick termination taxpayer with a remedy as prompt and effective as the pre-payment suit for redetermination in the Tax Court.

Under § 6861 and § 6851 as we interpret them the taxpayer may obtain review of liability prior to actual payment even though the IRS may seize the taxpayer's assets before the commencement of Tax Court proceedings. There is a considerable difference between an assessment and levy on the jeopardy taxpayer's assets prior to adjudication and the ultimate disposal of those assets coupled with the application of the proceeds to the alleged liability. It is the latter against which the jeopardy taxpayer is protected by the deficiency procedure.

We fail to see how any legitimate government interest will be prejudiced by construing the law to permit the § 6851 quick termination taxpayer to seek a redetermination in the Tax Court before his assets are involuntarily applied to the liability. The opportunity for prompt review will hardly dry up the sources of revenue or stop the Government in its tracks since virtually all other taxpayers (§ 6861 jeopardy or otherwise) who desire to contest income tax liability prior to payment are currently allowed to do so. Nor will the purpose of § 6851 and § 6861 — the avoidance of tax evasion — be thwarted since the Government will still be able to seize all of the taxpayer's available assets necessary to satisfy the potential liability prior to the Tax Court proceeding.

In view of the Congressional intent long held since 1926 to provide taxpayers with a forum for review of income tax liability prior to payment, the disastrous effects that a § 6851 termination can have on the taxpayer in the absence of a prompt review of liability, the relative inadequacy of a post-payment review, and the lack of prejudice to any legitimate governmental interest attributable to a Tax Court redetermination, we conclude that in the contemporary structure of the Code, Congress meant for the deficiency notice procedures of § 6861 to be equally applicable to a § 6681 quick termination taxpayer. We cannot believe that Congress would find any real basis for withholding the protection of a prepayment Tax Court review from the § 6851 victim while granting it freely to all other § 6861 jeopardy taxpayers. Since the ticket to the Tax Court is the deficiency notice, we think that Congress intended that right to be for § 6851 taxpayers as well.

Accordingly we hold that the District Court's order enjoining the IRS from assessing and levying on appellee's assets unless a notice of deficiency is first issued pursuant to § 6861 was correct.

Affirmed.

* * * * *

(3) Termination of taxable year for jeopardy. — When the Secretary or his delegate terminates the taxpayer's taxable year under section 6851 (relating to tax in jeopardy).

If any person fails to make any return (other than a declaration of estimates tax required under section 6015 or 6016) required by any internal revenue law or regulation made thereunder at the time prescribed therefor, or makes, willfully or otherwise, a false or fraudulent return, the Secretary or his delegate shall make such return from his own knowledge and from such information as he can obtain through testimony or otherwise.