In re Henne

359 B.R. 776, 2007 Bankr. LEXIS 84, 2007 WL 60800
CourtUnited States Bankruptcy Court, D. Arizona
DecidedJanuary 8, 2007
DocketNo. 4:03BK-01592-EWH
StatusPublished

This text of 359 B.R. 776 (In re Henne) is published on Counsel Stack Legal Research, covering United States Bankruptcy Court, D. Arizona primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re Henne, 359 B.R. 776, 2007 Bankr. LEXIS 84, 2007 WL 60800 (Ark. 2007).

Opinion

MEMORANDUM DECISION

EILEEN W. HOLLOWELL, Bankruptcy Judge.

INTRODUCTION

The Internal Revenue Service (“IRS”) filed a Proof of Claim for delinquent taxes, which includes a claim for unsecured debt in the amount of $422,390.92. Edward Henne (“Debtor”) contends that this debt was discharged in his previous Chapter 7 case.1 The IRS argues that the Debtor’s taxes were not discharged because the Debtor failed to file returns and therefore the taxes are excepted from discharge pursuant to 11 U.S.C. § 523(a)(1)(B).

An evidentiary hearing was held on November 30, 2005, and the parties subsequently submitted Proposed Findings of Fact and Conclusions of Law. The evidence demonstrates that the Debtor failed to file returns under 11 U.S.C. § 523(a)(1)(B). Consequently, his delinquent tax debts were not previously discharged and he does not qualify to be a Chapter 13 debtor because his unsecured debts to the IRS exceed the limit of 11 U.S.C. § 109(e).2

[778]*778 FACTS

In February 1992, the Debtor became very ill and was paralyzed for a period of time; he underwent therapy for nine months. In December 1997, he injured an artificial leg and required surgery. The Debtor testified that personal problems, including a divorce in 1991, interfered with his ability to file tax returns. The Debtor did not file timely tax returns for the 1992, 1993, 1994, 1995, 1996, 1999, 2000 and 2001 tax years.3

In 1997, the IRS issued statutory notices of deficiency to the Debtor for the 1992 through 1995 tax years due to the Debtor’s failure to file returns for those years. Following its procedures, the IRS first prepared substitute returns; when the Debtor failed to respond to the notice of substitute returns, the IRS issued the statutory notices of deficiency. The notices of deficiency provided the amounts of the tax deficiencies calculated by the IRS and advised the Debtor of his right to seek a redetermination of these deficiencies in the Tax Court. A statutory notice of deficiency provides the taxpayer with a ninety-day period within which to agree with or contest the deficiency. If the taxpayer does not contest the deficiency within the 90-day period, taxes can be assessed pursuant to 26 U.S.C. § 6213.

The Debtor did not contest the deficiencies within the ninety-day period. Thereafter, the IRS assessed the Debtor’s taxes, interest and penalties for the 1992 through 1995 tax years. The 1993 tax liabilities were assessed on March 17, 1997; the 1992, 1994 and 1995 liabilities were assessed on November 10,1997.

The Debtor testified that he met with an IRS examiner in 1997 concerning his 1992 and 1993 taxes. He also testified that he had subsequent meetings with the IRS examiner.

On September 29, 1998, the Debtor submitted Forms 1040 for the 1992 and 1993 tax years to the IRS. On December 13, 1998, the Debtor submitted Forms 1040 for the 1994 and 1995 tax years. The IRS treated the returns as a request for an audit reconsideration.

On April 5, 1999, the IRS sent an examination letter to the Debtor requesting verification of items reported on the Debtor’s Forms 1040 for the 1992 through 1995 tax years. The letter was returned to the IRS because the Debtor’s forwarding address order with the post office had expired. On April 21, 1999, the IRS sent the request for verification letter to the Debtor’s new address. The Debtor did not respond to the letter. On August 30, 1999, the IRS sent a letter to the Debtor advising him that because no response to the request for verification of expenses had been received, the IRS determined that no change to the original assessments was warranted and the case was closed.

On October 22, 2002, the Debtor filed a Chapter 7 petition. The Debtor sought to 'discharge the taxes owed for the 1992 through 1995 tax years. An Order of Discharge was entered on February 14, 2003. On April 1, 2003, the Debtor filed for relief under Chapter 13. The IRS filed a Proof of Claim on May 4, 2005, which includes unsecured claims of $422,390.92 for the tax years 1992 through 1995 and 1998.4 The taxes were assessed due to the Debtor’s failure to file returns for those years. The [779]*779claim includes interest that had accrued as of the date that Debtor’s Chapter 13 petition was filed.

ISSUE

Do the Forms 1040 filed by the Debtor in 1998 qualify as “returns” under 11 U.S.C. § 523(a)(1)(B)?

STATEMENT OF JURISDICTION

The Court has jurisdiction over this matter pursuant to 28 U.S.C. §§ 1334 and 157. Venue is proper under 28 U.S.C. § 1409.

DISCUSSION

The general rule is that a Chapter 7 debtor is discharged from personal liability for all debts incurred before the filing of the petition. See 11 U.S.C. § 727(b). There are, however, exceptions to the general rule of discharge, such as the exception for unpaid taxes under 11 U.S.C. § 523(a)(1)(B). Section 523(a)(1)(B) does not discharge an individual debtor from a debt for taxes if a return was required, and- the return was not filed or “was filed ... after the date on which such return ... was last due ... and after two years before the date of the filing of the petition.”

The Bankruptcy Code does not define the term “return,” so courts have constructed a four-prong test, known as the “Beard test,” for determining whether a document will be deemed a return for purposes of § 523(a)(1)(B). See In re Hatton, 220 F.3d 1057, 1060-61 (9th Cir.2000); In re Nunez, 232 B.R. 778, 782 (9th Cir. BAP 1999). To qualify as a return, the document must: (1) “purport to be a return”; (2) “be executed under penalty of perjury”; (3) “contain sufficient data” to calculate the tax liability; and (4) “represent an honest and reasonable attempt to satisfy the requirements of the tax law.” In re Hatton, 220 F.3d at 1060-61 (citations omitted).

The IRS concedes the first three prongs have been met in this case. (IRS’s Proposed Conclusions of Law, ¶ 6.) At issue is whether the Debtor’s Forms 1040 for 1992 through 1995, which were filed in 1998 after the IRS had assessed the Debt- or’s tax liability in 1997, “represent an honest and reasonable attempt to satisfy the requirements of the tax law.” Id.

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Related

Rushing v. United States (In Re Rushing)
273 B.R. 223 (D. Arizona, 2001)
Hetzler v. United States (In Re Hetzler)
262 B.R. 47 (D. New Jersey, 2001)
Haywood v. Illinois (In Re Haywood)
62 B.R. 482 (N.D. Illinois, 1986)
United States v. Klein
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United States v. Nunez (In Re Nunez)
232 B.R. 778 (Ninth Circuit, 1999)

Cite This Page — Counsel Stack

Bluebook (online)
359 B.R. 776, 2007 Bankr. LEXIS 84, 2007 WL 60800, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-henne-arb-2007.