The failure to redesignate this cross reference in the 1984 amendments was merely an oversight, and the proper reference in section 523(a)(1) should be to section 507(a)(7). Easton v. United States (In re Easton), 59 B.R. 714, 716 n. 1 (Bankr.C.D.Ill. 1986).Edwards v. I.R.S. (In re Edwards), 74 B.R. 661, 662-63 (Bankr.N.D.Ohio 1987). (A) a tax on or measured by income or gross receipts —
Therefore, parts (i)-(iii) of § 507(a)(7)(A) are alternative grounds for priority treatment of claims falling within subparagraph (A) of § 507(a)(7). Debtor contends, however, that the cases of In re Doss, 42 B.R. 749 (Bankr.E.D.Ark.1984) and In re Edwards, 74 B.R. 661 (Bankr.N.D.Ohio 1987) mandate a different result. In Doss, at issue was the dischargeability and priority of unassessed tax liabilities for which debtor had made an untimely filing [after the date on which the return was last due] more than two years prior to debtor's bankruptcy filing.
See, e.g., In re Treister, 52 B.R. 735, 738 n. 2 (Bankr. S.D.N.Y. 1985) ("The debtor's reliance on In re Doss . . . is misplaced since there the tax returns were not timely filed); In re Longley 66 B.R. 237, 241 (Bankr. N.D. Ohio 1986) (distinguishing Doss because debtors in Longley did not file a late tax return); In re Edwards, 74 B.R. 661, 664 (Bankr. N.D. Ohio 1987) (stating that "the Doss decision is distinguishable since the tax claim at issue arose from an untimely filed tax return; the tax return in the instant case was timely filed"); In re Holden, No. 90-01314-13, 1991 Bankr. LEXIS 187, at *3 (Bankr. D. Idaho Feb. 4, 1991) ("The Doss case is dissimilar to the instant case since the taxes at issue do not meet the requirements for Section 523(a)(1)(B)(ii) and thus are not contained in the exclusion contained in Section 507(a)(7)(A)(iii)); see also In re Etheridge, 91 B.R. 842, 845 (Bankr. C.D.Ill. 1988), aff'd sub nom. Etheridge v. Illinois, 127 B.R. 421 (C.D. Ill. 1989) ("In the case before this Court, although Section 523(a)(1)(B)(ii) is involved, Section 507(a)(7)(A)(iii) is not and this court does not believe that the statutory interpretation of Doss can be extended to this case). Doss nonetheless raises questions about the proper construction of section 507(a)(7)(A)(iii), questions echoed by the debtors appeal. Although the Doss court pu
While that is true, the parties have not cited the court to any binding authority on this issue, and the court's own research has not disclosed any. It is worth noting that the cases the Division of Tax relies on are also outside this jurisdiction and are both more than twenty-five years old. One of the cases the Division of Tax relies on is In re Edwards, 74 B.R. 661 (Bankr.N.D. Ohio 1987). That case was decided under § 523(a)(1)(A) and both its facts and reasoning have no bearing on this issue.The Division of Tax relies on Wood for the proposition that “11 U.S.C. § 523(a)(1)(B)(ii) is the product of Congress' balancing of competing interests between a fresh start for debtors and the importance of paying taxes to State and Federal government.” That statement is not wholly accurate.
In re Hosack, 282 Fed.Appx. at 315. As stated in Edwards v. Internal Revenue Serv. (In re Edwards), 74 B.R. 661, 666 (Bankr.N.D.Ohio 1987), “a tax claim which arises from a timely filed tax return filed more than two years before the petition date, or even more than three years before the petition date, is a nondischargeable tax claim, entitled to priority treatment, if the tax is still assessable as of the petition date.” Accordingly, the Court finds that the IRS is entitled to summary judgment on this issue.
In re Hosack, 282 F.App'x at 315. As stated in Edwards v. Internal Revenue Serv. (In re Edwards), 74 B.R. 661, 666 (Bankr. N.D. Ohio 1987), "a tax claim which arises from a timely filed tax return filed more than two years before the petition date, or even more than three years before the petition date, is a nondischargeable tax claim, entitled to priority treatment, if the tax is still assessable as of the petition date." Accordingly, the Court finds that the IRS is entitled to summary judgment on this issue.
Therefore, these taxes have no priority in payment from the estate but would survive as continuing debts after the case.Savaria v. United States (In re Savaria), 317 B.R. 395, n. 1 (B.A.P. 9th Cir. 2004) (quoting S. Rep. No. 95-110622 (1978), reprinted in D Collier on Bankruptcy App. Pt. 4-2168; Edwards v. IRS (In re Edwards), 74 B.R. 661, 665 (Bankr. N.D. Ohio 1987)). However, such a debt will be discharged under chapter 13, the bankruptcy chapter offering a "super discharge" that eliminates most of the exceptions to discharge detailed in 11 U.S.C. § 523.See 11 U.S.C. § 1328(a) (2000) (exceptions to the section 1328(a) discharge do not include tax debts enumerated under section 523(a)(1)(A), (B) or (C)).
S. Rep. No. 95-1106 22 (1978), reprinted in D COLLIER at App. Pt. 4-2168; Edwards v. IRS (In re Edwards), 74 B.R. 661, 665 (Bankr. N.D. Ohio 1987). This last rule is implemented by § 507 (a) (8) (A) (iii), which affords priority status to prebankruptcy income taxes that become assessable after the bankruptcy case filing unless they are both stale and nondischargeable because of some fault ascribed to the debtor.
(Not giving priority to a debt means that the creditor can still collect part or all of the debt from the estate, but the creditor must do so as a general creditor, sharing pro rate with other general creditors.). In re Edwards, 74 B.R. 661, 665 n. 19 (Bankr.N.D.Ohio 1987) (quoting S.REP. No. 1106, 95th Cong., 2d Sess. 22 (1978) (emphasis added by Edwards); Daniel v. United States (In re Daniel), 170 B.R. 466, 470 (Bankr.S.D.Ga. 1994). In Chapter 7, the Section 523(a)(1)(C) tax debt for a fraudulent return is nondischargeable, and therefore, a tax authority can pursue a debtor after the bankruptcy case.
In balancing the interests of the general creditors, the debtor and the tax collector, the treatment of tax claims was designed to give "governmental units a priority claim on assets of the debtor's estate for certain taxes which have not grown so `stale' as to constitute an unjustifiable burden on general unsecured creditors (who may have extended new credit to the debtor since the tax liability arose)."In re Edwards, 74 B.R. 661, 665 (Bankr. N.D.Ohio 1987) ( quoting Committee on Finance, S.Rep. No. 1106, 95th Cong., 2d Sess. 5 (1978)). V. CONCLUSION