Opinion
No. 05-55944.
The panel unanimously finds this case suitable for decision without oral argument. See Fed.R.App.P. 34(a)(2).
February 28, 2007.
Appeal from the Ninth Circuit Bankruptcy Appellate Panel Brandt, Montali, and Dunn, Bankruptcy Judges, Presiding, BAP No. CC-04-01446-BMoD.
Before: BEEZER, FERNANDEZ, and McKEOWN, Circuit Judges.
MEMORANDUM
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
Harry H. Mitchell appeals pro se from the Bankruptcy Appellate Panel's ("BAP") order affirming the bankruptcy court's summary judgment concluding that Mitchell's liability to the California Franchise Tax Board ("FTB") was not discharged as part of the general discharge Mr. Mitchell and his late wife received on February 29, 1996, in their underlying Chapter 7 bankruptcy proceeding. We have jurisdiction pursuant to 28 U.S.C. § 158(d). We review de novo decisions of the BAP, and we review the bankruptcy court's conclusions of law de novo and its findings of fact for clear error. Hanf v. Summers (In re Summers), 332 F.3d 1240, 1242 (9th Cir. 2003). We vacate and remand.
Under King v. Franchise Tax Bd. (In re King), 961 F.2d 1423, 1424 (9th Cir. 1992), the dischargeability of state tax liability depends on the date on which an assessment becomes final. According to the bankruptcy court's Statement of Uncontroverted Facts, the FTB issued notices of proposed assessment on October 13, 1992, and the Mitchells filed protests of these assessments on January 26, 1993. This time line is important because "the amount of the deficiency assessed becomes final upon the expiration of the 60-day period" if no protest is filed. Cal. Rev. Tax. Code § 18591 (1992).
In response to an order for additional briefing on this issue, Appellee points to "[s]everal facts [that] indicate that . . . Mitchell may well have submitted a protest earlier than currently reflected in the FTB's computerized files." The information provided by Appellee indicates that there may also have been FTB denials that predate the May 17, 1995 FTB notice affirming the Mitchells' liability. These uncertain facts are material because there are other points where the assessments in question may have become final. See Cal. Rev. Tax. Code § 18593 (1992) (providing that the FTB's action upon a protest becomes final within 30 days unless there is a written appeal). Because a complete record is necessary to determine whether the Mitchells' tax liability was final and therefore discharged, we are unable to conclude that summary judgment was proper. We therefore vacate and remand to the BAP with instructions to remand to the bankruptcy court for further proceedings.
The parties shall bear their own costs on appeal.