Smith v. U.S., (S.D.Ind. 1996)

5 Citing cases

  1. In re McDonald

    249 B.R. 312 (Bankr. E.D. Mo. 1999)   Cited 2 times

    In civil contexts, on the other hand, courts have generally found willfulness to mean "a voluntary, conscious and intentional violation of a known legal duty." In re Ketchum, 177 B.R. 628, 630 (E.D.Mo. 1995); In re Toti, 24 F.3d 806, 809 (6th Cir. 1994), cert. denied, 513 U.S. 987, 115 S.Ct. 482, 130 L.Ed.2d 395; Smith v. United States. 202 B.R. 277, 279 (S.D.Ind. 1996). Consequently, section 523 (a)(1)(C) does not require a debtor to have committed the purported act with a bad purpose or an evil intent, but merely to have voluntarily, consciously and intentionally committed such an act.

  2. In re McGrath

    217 B.R. 389 (Bankr. N.D.N.Y. 1997)   Cited 10 times

    The majority of courts have concluded that the civil standard is the appropriate standard. See, e.g., Bruner v. United States (In re Bruner), 55 F.3d 195, 197 (5th Cir. 1995); Langlois v. United States, 155 B.R. 818, 821 (N.D.N.Y. 1993); United States v. Toti (In re Toti), 149 B.R. 829 (E.D.Mich. 1993), aff'd 24 F.3d 806 (6th Cir. 1994), cert. denied 513 U.S. 987, 115 S.Ct. 482, 130 L.Ed.2d 395 (1994); Smith v. United States (In re Smith), 202 B.R. 277 (S.D.Ind. 1996); Ketchum v. United States (In re Ketchum), 177 B.R. 628 (E.D.Mo. 1995); United States v. Freidus (In re Freidus), 165 B.R. 537, 541 (Bankr.E.D.N.Y. 1994); but see Haas v. IRS (In re Haas), 48 F.3d 1153, 1157 (11th Cir. 1995); Gathwright v. United States (In re Gathwright), 102 B.R. 211, 213 (Bankr. D.Or. 1989). Under the civil standard, there is no need to establish an affirmative act by the debtor or that the debtor possessed a "bad purpose or evil motive."

  3. In re Mixon

    CASE NO. 05-86866-BJH-7, ADVERSARY PRO. NO. 07-3257 (Bankr. N.D. Tex. May. 13, 2008)   Cited 7 times

    Dalton v. IRS, 77 F.3d 1297, 1301 (10th Cir. 1996) (quoting Spies v. United States, 317 U.S. 492, 499 (1943)). It is well-settled that the statute applies both to attempts to defeat the assessment of a tax and to attempts to defeat the payment or collection of a tax. In re Toti, 24 F.3d 806, 809 (6th Cir. 1994); United States v. Merrill, 336 B.R. 804, 808 (D. Or. 2005); Smith v. U.S., 202 B.R. 277, 279 (S.D. Ind. 1996); see also In re Griffith, 206 F.3d 1389, 1392-1396 (11th Cir. 2000) (en banc). Section 523(a)(1)(C) contains both a conduct element (i.e., that the debtor sought to evade or defeat a tax liability) and a mental state element (i.e., that he did so willfully). See In re Toti, 24 F.3d at 809.

  4. In re Geiger

    No. 05-87505, Adv. No. 06-8062 (Bankr. C.D. Ill. Apr. 28, 2008)   Cited 1 times

    Both actions to avoid assessment and to evade payment of taxes are encompassed by the exception. Smith v. U.S., 202 B.R. 277 (S.D.Ind. 1996). The exception encompasses acts of commission as well as omissions.

  5. In re Woods, (Bankr.S.D.Ind. 2002)

    285 B.R. 284 (Bankr. S.D. Ind. 2002)   Cited 4 times

    For instance, in Birkenstock, the 7th Circuit cites approvingly to In re Toti 24 F.3d 806 (6th Cir. 1994), in which the Sixth Circuit held that acts of omission, e.g., the nonpayment of taxes, coupled with a failure to file a return, can constitute a willful attempt to evade or defeat a tax. See also Smith v. United States, 202 B.R. 277, 279 (S.D.Ind. 1996) ("Section 523(a)(1)(C) does not require proof of affirmative act"). Based on these holdings, the United States can plausibly argue that a taxpayer/debtor who fails to file a tax return, wholly ignores the assessment process, and only begins to "cooperate" with the IRS when the threat of collection is imminent can be held liable under ยง 523(a)(1)(C).