In re: Richard Jackson and Tamara Anne Jackson

• Court: United States Bankruptcy Appellate Panel for the Ninth Circuit
• Decided: December 4, 2015
• Docket: EC-15-1072-DJuF
• Status: Published

Opinion

FILED DEC 04 2015

1 SUSAN M. SPRAUL, CLERK U.S. BKCY. APP. PANEL OF THE NINTH CIRCUIT 2 3 UNITED STATES BANKRUPTCY APPELLATE PANEL 4 OF THE NINTH CIRCUIT 5 In re: ) BAP No. EC-15-1072-DJuF ) 6 RICHARD JACKSON and ) TAMARA ANNE JACKSON, ) Bk. No. 10-11810-A-13 7 ) Debtors. ) 8 ______________________________) ) 9 RICHARD JACKSON; ) TAMARA ANNE JACKSON, ) 10 ) Appellants, ) 11 ) v. ) O P I N I O N 12 ) UNITED STATES, ) 13 ) Appellee. ) 14 ______________________________) 15 16 Argued and Submitted on November 19, 2015 at Sacramento, California 17 Filed - December 4, 2015 18 Appeal from the United States Bankruptcy Court 19 for the Eastern District of California 20 Honorable Frederick E. Clement, Bankruptcy Judge, Presiding 21 22 23 Appearances: David R. Jenkins appeared and argued for Appellants Richard Jackson and Tamara Anne Jackson. Jeffrey J. 24 Lodge, Assistant U.S. Attorney, appeared and argued on behalf of Appellee United States. 25 26 27 Before: DUNN, JURY, and FARIS, Bankruptcy Judges. 28 1 DUNN, Bankruptcy Judge: 2 3 The Internal Revenue Service (IRS”) timely filed a proof of 4 claim (“Initial Claim”) in the chapter 131 case of Richard and 5 Tamara Anne Jackson. The Initial Claim included (1) an estimate 6 of the Jacksons’ income tax liability for the 2009 tax year and 7 (2) a reservation of the right to assess the true tax liability 8 for the 2009 tax year once the Jacksons had filed their 2009 9 income tax return (“2009 Return”). Approximately six months 10 after the 2009 Return was filed, the IRS amended the Initial 11 Claim (“Amended Claim”) to assert priority status with respect to 12 the 2009 assessed tax liability, which was approximately six 13 times the amount estimated. Nearly four years later, the 14 Jacksons objected (“Claim Objection”) to the Amended Claim 15 pursuant to § 502(b)(9) on the basis that it was untimely, 16 asserting that § 1308 required the IRS to file its claim for the 17 2009 assessed tax liability within 60 days after the 2009 Return 18 was filed. 19 We AFFIRM the bankruptcy court’s order overruling the Claim 20 Objection. 21 I. FACTUAL BACKGROUND 22 The Jacksons filed their chapter 13 bankruptcy petition 23 (“Petition”) on February 24, 2010. At the time the Petition was 24 filed, the Jacksons’ 2009 Return had not been filed. 25 26 1 Unless otherwise indicated, all chapter and section 27 references are to the Bankruptcy Code, 11 U.S.C. §§ 101-1532, and all “Rule” references are to the Federal Rules of Bankruptcy 28 Procedure, Rules 1001-9037.

-2- 1 On February 28, 2010, the Jacksons filed their Chapter 13 2 Plan (“Plan”). The Plan provided that claims entitled to 3 priority pursuant to § 507 would be paid in full. The Plan 4 included an estimated IRS priority claim in the total amount of 5 $57,086.93.2 6 The IRS filed its Initial Claim on April 5, 2010. Through 7 the Initial Claim, the IRS asserted an unsecured priority claim 8 in the amount of $6,102.60 under § 507(a)(8) for the 2009 tax 9 year. The Initial Claim reflected that the Jacksons’ income tax 10 liability for that period was “unassessed” because no return had 11 been filed. In a footnote, the Initial Claim provided: 12 “Unassessed tax liability(ies) have been listed on this claim 13 because our records show no return(s) filed. When the debtor(s) 14 files the return or provides other information as required by law 15 the claim will be amended.” 16 Important to the resolution of this appeal, but not 17 addressed by either party, through the Initial Claim the IRS also 18 asserted assessed income tax unsecured priority claims in the 19 amounts of $3,526.00 and $3,857.00, respectively, for the 2007 20 and 2008 tax years. In addition, the IRS asserted unsecured 21 priority tax claims in the amount of $4,999.00 each for the 2007 22 and 2008 tax years; these latter amounts were marked “Pending 23 Examination” as “proposed tax deficiency determined by 24 examination of debtor(s) tax return.” In total, the IRS asserted 25 an unsecured priority claim in the amount of $23,992.92 through 26 2 27 Under §§ 3.04 and 5.04 of the First Amended Plan, the claim amounts stated in the Plan were estimates only. The proofs 28 of claim, not the Plan, controlled the allowed amounts of claims.

-3- 1 the Initial Claim.3 2 On April 28, 2010, the Jacksons filed their First Modified 3 Chapter 13 Plan (“First Amended Plan”), which provided that IRS 4 claims entitled to priority pursuant to § 507 would be paid in 5 full. The First Amended Plan estimated that the IRS priority 6 claim was $42,678.44. The First Amended Plan was confirmed by 7 the bankruptcy court’s order entered July 8, 2010. 8 Pursuant to the extension they had requested, the Jacksons 9 filed their 2009 Return on October 14, 2010. No copy of the 2009 10 Return is included in the record either in the bankruptcy court 11 or on appeal. 12 On November 26, 2010, the Jacksons filed their Second 13 Modified Chapter 13 Plan (“Second Amended Plan”), which reduced 14 the total monthly plan payment from $2,677.00 to $2,127.00, 15 necessitated, as set forth in their declaration filed in support 16 of approval of the Second Amended Plan, by a decrease in income 17 experienced by the Jacksons. In their motion for approval of the 18 Second Amended Plan, the Jacksons outlined the impact on secured 19 creditors resulting from the reduction in the monthly plan 20 payment. The motion did not address the impact, if any, on 21 priority creditors. Notably, both the treatment and the amount 22 of the IRS priority claim remained unchanged under the Second 23 Amended Plan. The Second Amended Plan was approved by the 24 bankruptcy court’s order entered February 3, 2011. 25 The IRS filed the Amended Claim on April 11, 2011. Through 26 27 3 This total does not include interest to the petition date 28 in the amount of $462.12.

-4- 1 the Amended Claim the IRS asserted a total priority claim in the 2 amount of $61,735.00. The increase is accounted for as follows: 3 1. On March 12, 2011, following the examination of the 4 Jacksons’ return for the 2007 tax year, the IRS made an 5 additional assessment of $12,672.00, an increase of $7,673.00 6 over the amount included in the Initial Claim. 7 2. On February 7, 2011, following the examination of the 8 Jacksons’ return for the 2008 tax year, the IRS made an 9 additional assessment of $6,071.00, an increase of $1,072.00 over 10 the amount included in the Initial Claim. 11 3. On November 22, 2010, following the filing of the 2009 12 Return, the IRS assessed $35,309.00 for the 2009 tax year, an 13 increase of $29,206.40 over the estimated liability included in 14 the Initial Claim. 15 On January 5, 2015, nearly four years after the Amended 16 Claim had been filed, the Jacksons objected to the Amended Claim. 17 In the Claim Objection, the Jacksons acknowledged that they were 18 obligated under the Second Amended Plan to pay, in full, the IRS 19 priority tax claim. They asserted, however, that the $35,309.00 20 assessment for the 2009 tax year included in the Amended Claim 21 constituted an untimely claim where the IRS did not assert the 22 assessment for the 2009 Return either before the governmental 23 claims bar date of August 23, 2010, or within 60 days after the 24 2009 Return was timely filed. The IRS countered that there was 25 no deadline for amending the Initial Claim and that the Initial 26 Claim was sufficient to put the Jacksons on notice that the IRS 27 intended to assert a claim for any future assessment to be made 28 for the 2009 tax year once the Jacksons had filed the 2009

-5- 1 Return. 2 The bankruptcy court overruled the Claim Objection, holding 3 that the claims bar date pertained only to the filing of the 4 Initial Claim and was “not intended to preclude an amendment.” 5 Tr. of Feb. 19, 2015 H’rng at 11:2-8. The Jacksons filed a 6 timely notice of appeal. 7 II. JURISDICTION 8 The bankruptcy court had jurisdiction under 28 U.S.C. 9 §§ 1334 and 157(b)(2)(B). We have jurisdiction under 28 U.S.C. 10 § 158. 11 III. ISSUE 12 Whether the bankruptcy court erred when it determined that 13 neither § 502(b)(9) nor Rule 3002(c)(1) rendered the Amended 14 Claim untimely. 15 IV. STANDARDS OF REVIEW 16 We review de novo issues of statutory construction and 17 conclusions of law, including a bankruptcy court’s interpretation 18 of the Bankruptcy Code. Samson v. W. Capital Partners, LLC (In 19 re Blixseth), 684 F.3d 865, 869 (9th Cir. 2012)(per curiam). See 20 also Aspen Skiing Co. v. Cherrett (In re Cherrett), 523 B.R. 660, 21 667 (9th Cir. BAP 2014). 22 Similarly, we review a bankruptcy court’s interpretation and 23 application of the Rules de novo. All Points Capital Corp. v. 24 Meyer (In re Meyer), 373 B.R. 84, 87 (9th Cir. BAP 2007) (citing 25 Ruvacalba v. Munoz (In re Munoz), 287 B.R. 546, 550 (9th Cir. BAP 26 2002)). 27 De novo means that we review a matter anew, as if no 28 decision previously had been rendered. Dawson v. Marshall, 561

-6- 1 F.3d 930, 933 (9th Cir. 2009). 2 V. DISCUSSION 3 Section 502(b)(9) authorizes the bankruptcy court, upon the 4 filing of an objection, to disallow a claim that has not been 5 timely filed. 6 Section 1308 was added to the Bankruptcy Code in 2005 7 through the enactment of the Bankruptcy Abuse Prevention and 8 Consumer Protection Act of 2005 and requires debtors to file tax 9 returns for all taxable periods ending during the 4-year period 10 ending on the date of the filing of the petition. At the same 11 time, § 502(b)(9) was amended to address the timeliness of claims 12 filed as a result of § 1308. 13 [A] claim of a governmental unit shall be timely filed if it is filed before 180 days after the date of the order for 14 relief or such later time as the [Rules] may provide and except that in a case under chapter 13, a claim of a 15 governmental unit for a tax with respect to a return filed under section 1308 shall be timely if the claim is filed on 16 or before the date that is 60 days after the date on which such return was filed as required. 17 18 § 502(b)(9) (emphasis added). 19 Rule 3002(c)(1) was amended in 2008 to address the 20 implications of § 1308. 21 Rule 3002. Filing Proof of Claim or Interest . . . 22 (c) TIME FOR FILING. . . . 23 (1) A proof of claim filed by a governmental unit, other than a claim resulting from a tax return filed 24 under § 1308, is timely if it is filed not later than 180 days after the date of the order for relief. A 25 proof of claim filed by a governmental unit for a claim resulting from a tax return filed under § 1308 is 26 timely if it is filed no later than 180 days after the date of the order for relief or 60 days after the date 27 of the filing of the tax return. The court may, for cause, enlarge the time for a governmental unit to file 28 a proof of claim only upon motion of the governmental

-7- 1 unit made before expiration of the period for filing a timely proof of claim. 2 3 As stated in the Advisory Committee note to the 2008 amendment to 4 Rule 3002: 5 Subdivision (c)(1) is amended to reflect the addition of § 1308 to the Bankruptcy Code in 2005. This 6 provision requires that chapter 13 debtors file tax returns during the pendency of the case, and imposes 7 bankruptcy-related consequences if debtors fail to do so. Subdivision (c)(1) provides additional time for 8 governmental units to file a proof of claim for tax obligations with respect to tax returns filed during 9 the pendency of a chapter 13 case. The amendment also allows the governmental unit to move for additional 10 time to file a proof of claim prior to the expiration of the applicable filing period. 11 12 The Jacksons assert on appeal that, because the 2009 Return 13 was filed as directed by § 1308, any claim by the IRS for the 14 assessed liability for the 2009 tax year would have been timely 15 only if the IRS had asserted that liability in a claim filed by 16 December 13, 2010, the date which is 60 days after the October 17 14, 2010 filing date of the 2009 Return. 18 The only question presented by this appeal is whether § 1308 19 establishes an absolute deadline for asserting the assessed 20 dollar amount of the 2009 tax liability. We conclude that it 21 does not. 22 It has long been established in the Ninth Circuit that an 23 amendment to a timely proof of claim “relates back” to a timely 24 filed claim when the original claim provided “fair notice of the 25 conduct, transaction, or occurrence that forms the basis of the 26 claim asserted in the amendment.” State of Cal. Bd. Of 27 Equalization v. Ulrich (In re Solari), 63 B.R. 115, 117 (1986), 28 quoting Pepperland, Inc. v. Westgate-California Corp. (In re

-8- 1 Westgate-California Corp.), 621 F.2d 983 (9th Cir. 1980). With 2 respect to federal taxes, a timely-filed claim based on estimated 3 personal income taxes can be amended. 4 [T]he fact that the IRS filed a proof of claim for income taxes put the debtors on notice that the IRS 5 might augment its claim, especially where it only listed estimated liability. Therefore, equitable 6 principles reinforce a finding that the IRS may amend its original proof of claim for income taxes to include 7 income taxes due for other years not initially listed. 8 In re Osborne, 159 B.R. 570, 577 (Bankr. C.D. Cal. 1993), aff’d 9 167 B.R. 698 (9th Cir. BAP 1994), aff’d 76 F.3d 306 (9th Cir. 10 1996). 11 There is no dispute that the Initial Claim was timely filed, 12 that it included an estimated liability for the 2009 tax year, 13 and that it explicitly stated the Initial Claim would be amended 14 after the 2009 Return was filed. There also is no dispute that 15 the Amended Claim explicitly indicated it amended the Initial 16 Claim and that it replaced the estimated claim with an assessed 17 liability based on the 2009 Return. We see no reason why the 18 Amended Claim cannot benefit from the relation back principle for 19 amended claims generally, particularly where the audits with 20 respect to the Jacksons’ 2007 and 2008 tax years were continuing. 21 The Advisory Committee note to Rule 3002 suggests that, 22 because § 1308 provides for tax returns to be filed post- 23 petition, the general 180-day claims deadline for governmental 24 units may not be sufficient. For that reason, the general claims 25 deadline for governmental units is automatically extended to a 26 date 60 days after the post-petition tax return is filed, if the 27 general deadline expired before that date. We see nothing in the 28 Bankruptcy Code or the Rules that precludes, as a matter of law,

-9- 1 the IRS from asserting a claim based on an estimate within the 2 general claims deadline, and then amending it once the debtor has 3 provided the information necessary for the actual assessment of 4 the tax liability.4 5 VI. CONCLUSION 6 The bankruptcy court correctly overruled the Claim 7 Objection, holding that the Amended Claim is not an untimely 8 claim under § 502(b)(9), but instead is an amendment to the 9 previously-filed timely Initial Claim. 10 We AFFIRM. 11 12 13 14 15 16 17 18 19 4 We recognize that in chapter 13 cases, claims bar dates 20 serve an expanded purpose in allowing debtors to formulate and 21 confirm a plan promptly to address their debts. As such, there may be cases where it would be inequitable to allow an amendment 22 to a claim if there is an unreasonable delay. However, the bankruptcy court was not asked to reach the equities of allowing 23 the Amended Claim under the circumstances of this case. We 24 observe that the Jacksons filed the Second Amended Plan after the 2009 Return was filed, at a time when they would have been aware 25 of their true liability for the 2009 tax year, yet they did not 26 address the increased liability in the Second Amended Plan. In addition, for unknown reasons, the Jacksons waited until almost 27 four years after the Amended Claim was filed and within approximately one month prior to the end of the plan term before 28 filing the Claim Objection.

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