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Судебные дела / Зарубежная практика  / In re Chester E. EHRIG, Debtor. Chester E. Ehrig, Plaintiff, v. United States of America, ex rel., Internal Revenue Service, Defendant., United States Bankruptcy Court, N.D. Oklahoma., 308 B.R. 542, Bankruptcy No. 02-03828-R. Adversary No. 03-0142-R., March 9, 2004

In re Chester E. EHRIG, Debtor. Chester E. Ehrig, Plaintiff, v. United States of America, ex rel., Internal Revenue Service, Defendant., United States Bankruptcy Court, N.D. Oklahoma., 308 B.R. 542, Bankruptcy No. 02-03828-R. Adversary No. 03-0142-R., March 9, 2004


In re Chester E. EHRIG, Debtor. Chester E. Ehrig, Plaintiff, v. United States of America, ex rel.

Internal Revenue Service, Defendant.

United States Bankruptcy Court, N.D. Oklahoma.

308 B.R. 542

Bankruptcy No. 02-03828-R. Adversary No. 03-0142-R.

March 9, 2004.

Paul Tom, Tulsa, OK, for Plaintiff/Debt╜or.

Phyllis Jo Gervasio, Dept. of Justice Tax Division, Washington, DC, Phil Pinnell, Of╜fice of U.S. Attorney, Tulsa, OK, for De╜fendant.


DANA L. RASURE, Bankruptcy Judge.

Before the Court is the United States' Motion for Summary Judgment (Doc. 15) and the Memorandum in Support of the United States' Motion for Summary Judg╜ment (Doc. 16), both filed by the United States of America ex rel . Internal Revenue Service (the "IRS") on December 3, 2003 (the "IRS Brief"); Plaintiff's Motion for Summary Judgment and Brief in Support of Motion (Doc. 17) filed by the Plain╜tiff/Debtor Chester E. Ehrig ("Ehrig") on December 19, 2003 ("Ehrig's Brief"); United States' Response to Plaintiffs Mo╜tion for Summary Judgment (Doc. 18) filed on January 6, 2004 (the "IRS Response"); Plaintiffs Brief in Response to Defen╜dant's Motion for Summary Judgment (Doc. 19) filed on January 8, 2004 ("Ehrig's Response"); and United States' Reply Brief (Doc. 20) filed on January 13, 2004.

I. Jurisdiction

The Court has jurisdiction of this "core" proceeding by virtue of 28 U.S.C. ╖╖ 1334, 157(a), and 157(b)(2)(I) and (O); and Mis╜cellaneous Order No. 128 of the United States District Court for the Northern District of Oklahoma: Order of Referral of Bankruptcy Cases effective July 10, 1984, as amended.

II. Summary Judgment Standard

Summary judgment is proper "if the pleadings, depositions, answers to inter╜rogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed. R.Civ.P. 56(c) (made applicable herein by Bankruptcy Rule 7056). "One of the prin╜cipal purposes of the summary judgment rule is to isolate and dispose of factually unsupported claims or defenses [and] . . . it should be interpreted in a way that allows it to accomplish this purpose." Cel╜otex Corp. v. Catrett , 477 U.S. 317, 323-24, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).

Substantive law determines which facts are material. "Only disputes over facts that might affect the outcome of the suit under the governing law will properly pre╜clude the entry of summary judgment." Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). "[S]ummary judgment will not lie if the dispute about a material fact is 'genuine,' that is, if the evidence is such that a reasonable jury could return a ver╜dict for the nonmoving party." Id . It is incumbent upon the non-movant to demon╜strate that there are genuine issues of fact for trial. See Vitkus v. Beatrice Co. , 11 F.3d 1535, 1539 (10th Cir.1993).

"[A]t the summary judgment stage the judge's function is not ... to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial." Liberty Lobby , 477 U.S. at 249, 106 S.Ct. 2505. Reason╜able inferences that may be made from the proffered evidentiary record should be drawn in favor of the non-moving party. See Adams v. American Guarantee and Liability Ins. Co. , 233 F.3d 1242, 1246 (10th Cir.2000). However, "[i]f the [non╜moving party's] evidence is merely color╜able or is not significantly probative, sum╜mary judgment may be granted." Liberty Lobby , 477 U.S. at 249-50, 106 S.Ct. 2505 (citations omitted). "Where the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no 'genuine issue for trial.' " Matsushita Electric Industrial Co., v. Ze╜nith. Radio Corp. , 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986).

III. Material Facts as to Which No Genuine Issue Exists

The parties filed cross-motions for sum╜mary judgment. Pursuant to Rule 7056(a) of the Local Rules of the United States Bankruptcy Court for the Northern Dis╜trict of Oklahoma ("Local Rules")-

A brief in support of a motion for summary judgment ... shall begin with a section that contains a concise statement of material facts as to which movant contends no genuine issue exists. Each fact shall be stated in a separately num╜bered paragraph and shall refer with particularity to those portions of the af╜fidavits, discovery materials, pleadings, or other parts of the record before the Court upon which the movant relies. Affidavits, discovery materials, and oth╜er relevant portions of the record upon which the movant relies shall be at╜tached to the brief.

Local Rule 7056(a). The IRS Brief con╜tains a statement of eight separately numbered material facts, supported by af╜fidavits that identify and certify the au╜thenticity of various official records of the IRS including a "Master Filed 'Literal' Transcript Account" for Ehrig for tax year 1990; a Statutory Notice of Deficien╜cy dated April 4, 1997 that was issued to Ehrig relating to tax year 1990 to which was attached a form of a Notice of Defi╜ciency Waiver and a Proposed Individual Income Tax Assessment for tax year 1990, including a Summary of Income Sources reported to the IRS in tax year 1990, a Tax Calculation Summary and an Explanation of Penalties and Interest; copies of a Form 1040 Individual Income Tax Return for tax year 1990 signed by Ehrig and dated June 5, 2000; and a "Letter 3340C Audit Reconsideration De╜nial" dated January 22, 2002, rejecting Ehrig's request to recalculate IRS's as╜sessment for tax year 1990.

Local Rule 7056(b) requires that in re╜sponding to a motion for summary judg╜ment, the non-movant's response brief-

shall begin with a section stating, by paragraph number, each of the movant's facts to which the non-movant contends a genuine issue exists, and shall refer with particularity to those portions of affidavits, discovery materials, plead╜ings, and other relevant parts of the record before the Court upon which the non-movant relies to dispute the mov╜ant's fact. All material facts set forth in the movant's statement shall be deemed admitted for the purpose of summary judgment unless specifically controvert╜ed by a statement of the non-movant that is supported by evidentiary materi╜al.

Local Rule 7056(b). In Ehrig's Response, Ehrig did not contest the IRS's statement of material facts, and therefore those facts are admitted by Ehrig for the purpose of adjudicating the IRS's summary judgment motion.

Ehrig's Brief contains thirteen separate╜ly numbered facts, supported by Ehrig's affidavit and by the documents attached to the IRS Brief. In the IRS Response, the IRS does not dispute Ehrig's statement of facts. Accordingly, the Court's sole task is to determine the legal consequences that flow from the following undisputed materi╜al facts.

Ehrig earned taxable income in 1990. In 1991, Ehrig filed an extension of time to file his 1990 federal income tax return until August 15, 1991. Ehrig failed to file a tax return for tax year 1990 on or before August 15, 1991. According to his affida╜vit, Ehrig suffered myriad reversals of for╜tune in 1991: his wife abandoned him and his son, his architecture business declined and eventually dissolved, his home was sold, and his car was repossessed. Ehrig Affidavit at ╤╤ 2-4.

On April 3, 1995, the IRS filed a "substi╜tute for return" ("SFR") on behalf of Eh╜rig for tax year 1990, utilizing information reported to the IRS by entities that paid income to Ehrig in 1990. The IRS deter╜mined that Ehrig had adjusted gross in╜come of $27,135.50, of which $22,360.00 was taxable, and of which $11,862.00 was subject to self-employment tax. IRS Ex╜hibit A.

On April 4, 1997, the IRS issued a notice of deficiency to Ehrig for tax year 1990, advising Ehrig that he owed income tax in the amount of $5,971.00, a failure to file penalty in the amount of $1,492.75, and an estimated tax penalty in the amount of $393.15 (the "Deficiency Letter"). IRS Exhibit B. The Deficiency Letter provided notice of procedures to contest the amount of the deficiency, and advised that Ehrig had ninety days from the date of the Defi╜ciency Letter to file a petition with the United States Tax Court to seek a redeter╜mination. The Deficiency Letter further stated "the Court cannot consider your case if your petition is filed late." In the Deficiency Letter, the IRS also stated that if Ehrig decided not to file a petition for redetermination with the Tax Court, it re╜quested that he sign an enclosed waiver form that would permit the IRS to "assess the deficiency quickly and ... limit the accumulation of interest." The IRS fur╜ther advised that if Ehrig did not file a petition or sign the waiver, then the IRS was required to assess and bill him for the deficiency after the ninety day contest pe╜riod expired.

The Court assumes that Ehrig did not file a petition with the Tax Court challeng╜ing the amount of the deficiency because on September 1, 1997, the IRS assessed the tax liability and penalties in the amounts stated in the Deficiency Letter plus interest in the amount of $5,245.58. IRS Exhibit A.

In 1999, Ehrig contacted the IRS and began the process of assembling and filing returns for years in which he failed to file, including tax years 1990, 1991, 1992, 1993, 1994, 1995 and 1996. Ehrig filed returns for 1991-96 in 1999 and the IRS accepted those late returns and concurred with Eh╜rig's calculation of tax liability for those years. Ehrig's Brief at 2, ╤╤ 4-6. There╜after, with the knowledge and cooperation of the IRS and others, 1 Ehrig attempted to reconstruct his 1990 income and expenses with the intention of filing an accurate return for tax year 1990. By that time, some sources and records had been lost or destroyed, however. Ehrig's Brief at 3, ╤ 7-10. On July 24, 2000, Ehrig submitted the Form 1040 Individual Income Tax Re╜turn for tax year 1990, which he signed under the penalty of perjury, and in which he reported negative adjusted gross in╜come of $4,860, no taxable income, and a tax liability of zero. Ehrig's Brief at 4, ╤ 10; IRS Brief at 2, ╤ 5; and IRS Exhibit C.


1. In his affidavit and brief, Ehrig details his communication and interaction with IRS rev╜enue officers during the period in which Eh╜rig attempted to create a return that accurate╜ly reported his income and expenses for tax year 1990. The IRS does not contest that in 2000, Ehrig diligently attempted to obtain data necessary to file a return for the tax year 1990 and that the IRS assisted in this endeav╜or by providing income information to Ehrig.


The IRS posted the return on Ehrig's account as an amended return but pro╜cessed it as an "audit reconsideration" of its original assessment. IRS Brief at 2, ╤ 6-7; IRS Exhibit A. By letter dated January 22, 2002, the IRS advised Ehrig that it "determined that [it] should not change the original audit assessment amount" and disallowed Ehrig's proposed recalculation of tax liability for failure to "report all world wide income." IRS Ex╜hibit D. The letter further advised that if Ehrig disagreed with the IRS's decision, he could request an appeals conference or file a formal written protest. The record does not show that Ehrig did either.

Ehrig's 1990 return discloses all income previously reported to the IRS by the payors, and an additional $401. Ehrig al╜located the income differently than the IRS did in its SFR. Ehrig's Brief at 3-4, ╤╤ 11, 12. Ehrig contends that his tax liability is more accurately determined in his 1990 return than in the SFR because the IRS did not take into consideration Ehrig's correct filing status (head of household rather than married filing sepa╜rately) or his business expenses. Ehrig reported a lower mortgage interest deduc╜tion and more income from his architectur╜al business than the IRS considered in determining Ehrig's tax liability in the SFR. Ehrig argues that the fact that he reported more income and, in some cases, lower deductions than the IRS had esti╜mated in the SFR demonstrates Ehrig's good faith effort to file an accurate return for tax year 1990 and thus to comply with the tax laws.

On August 7, 2002, more than two years after he submitted the 1990 return to the IRS, Ehrig filed a petition under chapter 7 of the Bankruptcy Code. As of the petition date, Ehrig's 1990 tax liability, including penalties and interest, was approximately $22,000 (the "1990 Tax Liability"). IRS Exhibit A; Complaint at ╤ 6.

IV. Conclusions of law

Ehrig seeks to discharge the 1990 Tax Liability, contending that it does not fall within the ambit of non-dischargeable tax╜es defined in Section 523(a)(1). Section 523(a)(1) states-

A discharge under section 727 ... of this title does not discharge an individu╜al from any debt-

(1) for a tax . . .

(A) of the kind and for the periods specified in section 507(a)(2) or 507(a)(8) of this title, whether or not a claim for such tax was filed or al╜lowed;

(B) with respect to which a return, if required-

(i) was not filed; or

(ii) was filed after the date on which such return was last due, under applicable law or under any extension, and after two years before the date of the filing of the petition; or

(C) with respect to which the debtor made a fraudulent return or willfully attempted in any manner to evade or defeat such tax.

11 U.S.C. ╖ 523(a)(1).

A. ═ Non-dischargeability under Section 523(a)(1)(A)

Ehrig contends that the undisputed facts establish that the 1990 Tax Liability is not non-dischargeable under Section 523(a)(1)(A) because it is not a priority tax claim under Section 507(a)(2) or (a)(8). Section 507(a)(2), which refers to claims arising in an involuntary case, is inappli╜cable. Section 507(a)(8) grants priority to certain unsecured claims of governmental units; subparagraph (A) specifically re╜lates to claims for income taxes. General╜ly, this section confers priority (and con╜sequently, under Section 523(a)(1), non╜dischargeability) to claims for (1) income taxes for tax years in which a return was due less than three years prior to the petition date, (2) income taxes assessed within 240 days of the petition date, and (3) income taxes not assessed before the petition date which become assessable af╜ter the petition date. The undisputed facts establish that the 1990 Tax Liability is not a priority claim under Section 507(a)(8) and therefore is not non-dis╜chargeable under Section 523(a)(1)(A).

B. ═ Non-dischargeability under Section 523(a)(1)(B)

The IRS asserts and seeks summary judgment on the ground that the 1990 Tax Liability is non-dischargeable under Sec╜tion 523(a)(1)(B)(i) because it consists of taxes "with respect to which a return, if required . . . was not filed." Ehrig con╜tends that the 1990 Tax Liability is not non-dischargeable under Section 523(a)(1)(B)(i) (for failure to file a return) because he did file a 1990 tax return, albeit nine years after it was due. Furthermore, the return was filed in 2000, more than two years before Ehrig filed his petition for bankruptcy relief, eliminating Section 523(a)(1)(B)(ii) as a ground for barring dis╜charge.

At first blush, it appears that two returns were filed for tax year 1990-the SFR and the Form 1040 Ehrig filed in 2000. Whether the SFR filed by the IRS qualifies as a "return" contemplated by Section 523(a)(1)(B)(i) was settled by the Tenth Circuit Court of Appeals in Berg╜strom v. United States (In re Bergstrom) , 949 F.2d 341 (10th Cir.1991). A "substi╜tute for return" is a means by which the IRS may prepare a return for a taxpayer when the taxpayer fails to file a return as required by 26 U.S.C. ╖ 6012. 2 The au╜thority for the preparation of returns by the IRS, through the Secretary of Trea╜sury, is found in 26 U.S.C. ╖ 6020, entitled "Returns prepared for or executed by Sec╜retary," which provides-


2. Section 6012(a) states the general rule that-

Returns with respect to income taxes under subtitle A shall be made by the following:

(1)(A) Every individual having for the taxable year gross income which equals or exceeds the exemption amount.

26 U.S.C. ╖ 6012(a). Ehrig does not argue that he was exempt from filing a return for tax year 1990 under this section.


(a) Preparation of return by Secretary. If any person shall fail to make a return required by this title or by regulations prescribed thereunder, but shall consent to disclose all information necessary for the preparation thereof, then, and in that case, the Secretary may prepare such return, which, being signed by such person, may be received by the Secre╜tary as the return of such person.

(b) Execution of return by Secretary.

(1) Authority of Secretary to execute return. If any person fails to make any return required by any internal revenue law or regulation made there╜under at the time prescribed therefor, or makes, willfully or otherwise, a false or fraudulent return, the Secre╜tary shall make such return from his own knowledge and from such infor╜mation as he can obtain through testi╜mony or otherwise.

(2) Status of returns. Any return so made and subscribed by the Secretary shall be prima facie good and suffi╜cient for all legal purposes.

26 U.S.C.╖ 6020.

The statute thus allows the Sec╜retary to prepare, from such information as the Secretary is able to obtain, a "sub╜stitute for return" for any person who fails to timely file a return, but the statute does not require the Secretary to file a substi╜tute for return for every non-filing taxpay╜er, and therefore no taxpayer is excused from its statutory obligation to file a re╜turn by virtue of this section. Bergstrom , 949 F.2d at 343, citing Moore v. C.I.R. , 722 F.2d 193, 196 (5th Cir.1984). "[T]he pur╜pose of section 6020(b)(1) is to provide the Internal Revenue Service with a mecha╜nism for assessing the civil liability of a taxpayer who has failed to file a return, not to excuse that taxpayer from criminal liability which results from that failure." Id . at 343, quoting United States v. Lacy , 658 F.2d 396, 397 (5th Cir.1981). The sub╜stitute for return is effective as a return in those circumstances when a return is nec╜essary for the IRS to act ( i.e. , for the purpose of assessment, collection, levy), but, according to the Tenth Circuit, its existence does not shield the non-filing taxpayer from the consequences of failing to file. The statute was designed to ad╜vance the mission of the IRS, not to bene╜fit the non-filing taxpayer. For this rea╜son, courts, including the Tenth Circuit in Bergstrom , have held that "in the absence of the signature of the taxpayer," substi╜tutes for returns prepared and executed by the Secretary do not constitute filed returns under Section 523(a)(1)(B)(i). 3 Bergstrom , 949 F.2d at 343. See also United States v. Hatton (In re Hatton) , 220 F.3d 1057, 1060 (9th Cir.2000), quoting California Franchise Tax Bd. v. Jackson (In re Jackson) , 184 F.3d 1046, 1052 (9th Cir.1999) ("the purpose behind section 523(a)(1) [is that] 'a debtor should not be permitted to discharge a tax liability based upon a required tax return that was never filed [by the taxpayer]' "); United States v. Ralph , 266 B.R. 217, 219 (M.D.Fla.2001); Gentry v. United States , 223 B.R. 127, 129 (M.D.Tenn.1998); Swanson v. Commis╜sioner , 121 T.C. 111, 123-24, 2003 WL 22020782 (2003). Thus, it is well settled that the SFR filed by the IRS does not constitute a filed return for the purpose of avoiding the application of Section 523(a)(1)(B)(i) to issue of dischargeability of the 1990 Tax Liability.


3. Substitutes for return filed by the IRS under Section 6020(a), which are prepared by the Secretary with the participation and coopera╜tion of the taxpayer, and are executed by the taxpayer, may therefore qualify as returns un╜der Section 523(a)(1)(B)(i). In this case, the SFR was prepared using sources other than Ehrig, and Ehrig did not execute or adopt the SFR. Since the SFR was not prepared pursu╜ant to Section 6020(a), it cannot enjoy the status of a "return."


Accordingly, the Court must con╜sider the second candidate for "return" under Section 523(a)(1)(B)(i)-the Form 1040 prepared and submitted by Ehrig in July 2000. Preliminarily, the language of the statute raises the question of whether a return is even "required" after a substi╜tute for return has been filed by the IRS. The statute provides that a tax is not dischargeable if "with respect to which a return, if required , . . . was not filed." 11 U.S.C. ╖ 523(a)(1)(B)(i)(emphasis added). If a taxpayer has an obligation to file a return and does not file a return, and because of the taxpayer's dereliction, the IRS devotes resources to gathering income information and filing a substitute for re╜turn for the purpose of assessing tax liabil╜ity, and according to Section 6020(b)(2), the IRS is entitled to consider the substi╜tute for return "prima facie good and suffi╜cient for all legal purposes," then, argu╜ably, there is no longer any reason for a taxpayer to file a return. Some courts have interpreted Section 523(a)(1)(B)(i) as precluding a taxpayer from redeeming it╜self from the non-dischargeability conse╜quence of failing to file by filing a return after a substitute for return has been filed by the IRS and tax liability has been as╜sessed. See, e.g., Miniuk v. United States (In re Miniuk) , 297 B.R. 532, 541 (Bankr. N.D.Ill.2003) (taxes were non-dischargea╜ble for failure to file a return notwith╜standing that debtor filed a post-assess╜ment return, because the later return was no longer "required"); Walsh v. United States (In re Walsh) , 260 B.R. 142 (Bankr. D.Minn.2001), aff'd 2002 WL 1058073 (D.Minn.). The court in Walsh explained-

Once an involuntary government-made assessment is final, then, the taxpayer no longer can use the perfunctory expe╜dient of filing belated voluntary returns to subject a now-stale tax claim to dis╜charge in bankruptcy. As here, such an action only duplicates a process complet╜ed under law, to no identifiable purpose in the government's revenue function.

As a taxpayer, such a debtor may still have the option of paying and then prov╜ing in a suit for refund that he was in fact not liable for the taxes. This would be a matter of the merits, under tax law. By inaction that forces the taxing au╜thority through involuntary assessment, however, such a debtor forfeits the right to discharge the liability in bankruptcy.

Walsh , 260 B.R. at 151. 4


4. In reviewing the legislative history of Section 523(a)(1)(B) in order to divine its intent, the court identified three policies sought to be served and balanced by the rules governing discharge of taxes: (1) preservation of the integrity of the tax system through voluntary assessment; (2) elimination of "an excessive accumulation of taxes for past years" for the benefit of the taxpayer's other creditors; and (3) promotion of the concept of a "fresh start" to honest debtors. Walsh , 260 B.R. at 148. The court discerned that Congress did not intend to allow a debtor who contributed to the "staleness" of tax claims "by some wrongdoing or serious fault in the process of voluntary assessment" to discharge those tax claims. Id . (internal quotes omitted). "The import of legislative history is clear: the vol╜untary filing of personal income tax returns is an essential step in the assessment process that must be encouraged. Section 523(a)(1)(B)(i) must be construed to promote it. Applying the penalty of nondischargeabili╜ty to debtors who have failed to follow filing requirements provides a strong deterrent to others." Id . at 148-49.


The Court finds this construction of the statute persuasive. Although Ehrig sub╜mitted a Form 1040 in 2000, the IRS had already completed its tax assessment func╜tion. Prior to assessment, Ehrig chose not to respond to the Deficiency Letter con╜taining the notice of proposed assessment and did not seek a redetermination by filing a petition in Tax Court. After as╜sessment, Ehrig's remedy for the per╜ceived inaccurate assessment was limited-he was obligated to first pay the assessed amount and then commence a suit for a refund. Ehrig chose not to avail himself of the authorized avenues of appeal, but instead sought to renegotiate the amount of the assessment by a method not recog╜nized by the tax code or regulations-by submitting a return nine years after it was due. This return was not only "not re╜quired," it had no legal sanction or effect. Thus, the Court concludes that since no return was required, the return Ehrig filed in 2000 was a nullity and did not cure his non-filing status for the purpose of Section 523(a)(1)(B)(i).

Ehrig fares no better under an alternative interpretation of the statute that has been adopted by several appellate courts addressing this issue. Rather than focusing on the "if required" prong of the statute, these appellate courts have con╜cluded that a return filed by a taxpayer subsequent to the filing of a substitute for return by the IRS is not a "return" as that term is used in Section 523(a)(1)(B)(i). These courts turn to the widely accepted definition of "return" derived from two United States Supreme Court cases: Ger╜mantown Trust Co. v. Commissioner , 309 U.S. 304, 60 S.Ct. 566, 84 L.Ed. 770 (1940) and Zellerbach Paper Co. v. Helvering , 293 U.S. 172, 55 S.Ct. 127, 79 L.Ed. 264 (1934). See, e.g., United States v. Hindenlang (In re Hindenlang) , 164 F.3d 1029, 1033 (6th Cir.), cert. denied 528 U.S. 810, 120 S.Ct. 41, 145 L.Ed.2d 37 (1999). Under the Germantown/Zellerbach definition, for a document to qualify as a "return," it must (1) purport to be a return; (2) be executed under penalty of perjury; (3) contain suffi╜cient data to allow calculation of tax; and (4) represent an honest and reasonable attempt to satisfy the requirements of the tax law. See Hindenlang , 164 F.3d at 1033, quoting United States v. Hindenlang (In re Hindenlang) , 214 B.R. 847, 848 (S.D.Ohio 1997). 5


5. ═ In some circuits, the Germantown/Zeller╜bach test is referred to as the Beard test since the Tax Court in the case of Beard v. Commissioner , 82 T.C. 766, 1984 WL 15573 (1984), aff'd 793 F.2d 139 (6th Cir.1986), first synthe╜sized the elements and announced the defini╜tion. See Swanson v. Commissioner , 121 T.C. 111, 122, 2003 WL 22020782 (2003).


The facts in Hindenlang are materially indistinguishable from the facts in this case. In Hindenlang , the debtor failed to file tax returns for three years. After the debtor did not respond to notices of pro╜posed deficiencies, the IRS prepared sub╜stitute returns and sent them to the debt╜or, who chose not to execute the substitute returns or consent to the liability calculat╜ed therein. The IRS sent deficiency let╜ters notifying the debtor of the proposed tax liability and the right to contest the liability within ninety days by filing a peti╜tion in the Tax Court. After ninety days expired without a challenge by the debtor, the IRS assessed the liability against the debtor. Hindenlang , 164 F.3d at 1031. Two years later, the debtor prepared tax returns for the delinquent years and sent them to the IRS, but did not pay the tax liability. 6 More than two years later, the debtor filed a petition for relief under chapter 7 of the Bankruptcy Code and sought a determination that the tax liabili╜ty was not non-dischargeable under Sec╜tion 523(a)(1)(B). The IRS's sole argu╜ment was that "once a taxpayer has been assessed a deficiency, a Form 1040 submit╜ted by the taxpayer to the IRS no longer qualifies as a return under ╖ 523(a)(1)(B) of the Bankruptcy Code." Id . at 1032. This argument compelled the Sixth Circuit Court of Appeals to examine what consti╜tutes a "return" for the purpose of this statute. Quoting the United States Supreme Court, the Sixth Circuit panel stat╜ed-


6. In Hindenlang , the debtor reported substan╜tially the same income and tax liability on his late return that the IRS reported on its substi╜tute for return. The return filed by Ehrig in 2000, however, contained more information than the IRS included on the SFR, primarily deductions that the IRS did not know about or consider, which resulted in the elimination of all tax liability according to Ehrig's calcu╜lations. The Court does not believe that this distinction is relevant in analyzing the effect of filing a post-SFR return by a debtor. As hereinafter explained, filing a return only af╜ter the IRS has prepared a return and as╜sessed tax in an amount with which the tax╜payer disagrees (rather than challenging the deficiency or assessment in a timely manner) is not necessarily indicative of honest efforts to comply with the tax laws.


"[t]he purpose [of the return] is not alone to get tax information in some form but also to get it with such unifor╜mity, completeness, and arrangement that the physical task of handling and verifying returns may be readily accom╜plished." Commissioner v. Lane-Wells Co ., 321 U.S. 219, 223[, 64 S.Ct. 511, 88 L.Ed. 684] . . . (1944). "[I]t is clear that the existing tax system could not func╜tion properly if the great majority of taxpayers did not report the correct amount of tax without the government's prior determination of tax liability." BERNARD WOLFMAN, JAMES P. HOLDEN, KENNETH L. HARRIS, STANDARDS OF TAX PRACTICE ╖ 201 (1995).

Hindenlang , 164 F.3d at 1033. With those principles in mind, the Sixth Circuit tested the debtor's return against the German╜town/Zellerbach factors and found that the debtor's post-assessment return satisfied the first three components: it purported to be a return, it was signed under penalty of perjury, and it included all the information needed to calculate the debtor's tax liabili╜ty. Id . at 1034. The dispositive issue was whether the debtor's post-SFR return was an "honest and reasonable attempt to sat╜isfy the requirements of the tax law." Id . The Sixth Circuit held "as a matter of law that a Form 1040 is not a return if it no longer serves any tax purpose or has any effect under the Internal Revenue Code." Id . "Once the government shows that a Form 1040 submitted after an assessment can serve no purpose under the tax law, the government has met its burden." Id . Because the debtor filed a return only after the IRS sent, and received no re╜sponse or challenge to, thirty-day and ninety-day deficiency letters, filed substi╜tutes for returns and assessed the tax liability, the panel concluded that the Form 1040 filed by the debtor had no meaningful effect and "served no tax pur╜pose." Id . at 1034-35. 7 The court noted that the post-SFR return did not extend statutes of limitation, did not mitigate or release the debtor from civil or criminal liability for failure to file, or eliminate pen╜alties. Thus, the Court concluded, the re╜turn was not an honest or reasonable at╜tempt to satisfy the tax laws. The only effect of the return was potentially creat╜ing a condition under which otherwise non╜dischargeable tax debt could be dis╜charged. "Nothing in ╖ 523(a)(1) of the Bankruptcy Code suggests that a docu╜ment that does not qualify as a return under the Internal Revenue Code should nonetheless qualify as a return for pur╜poses of bankruptcy discharge. Such a result would create an unjustifiable incon╜sistency in the law." Id . at 1035.


7. The court footnoted the IRS's position that a post-SFR, post-assessment return filed by a debtor might serve a tax purpose if it revealed a greater tax liability than the IRS calculated, but declined to comment on whether that circumstance would be sufficient to imbue the debtor's efforts to comply with tax law with the requisite sincerity and diligence. Id . at 1034 n. 5. Thus, contrary to Ehrig's assertion that the Hindenlang court "set down a bright line rule holding that a return which is filed after an SFR assessment cannot as a matter of law constitute an honest attempt to comply with the requirements of the tax law" and that the court "cuts off any attempt by a Debtor to prove his return was filed in good faith," the court did leave the door to proving good faith compliance slightly ajar. Ehrig's Response at 4, and at n. 5. See also Miniuk v. United States (In re Miniuk) , 297 B.R. 532, 538 (Bankr.N.D.Ill.2003) ("The Sixth Circuit did not declare that a return filed post-assess╜ment could never satisfy the requirements of Section 523(a)(1)(B)(i). Instead, the court simply established that a fact-based inquiry would in most instances be necessary to re╜solve the dischargeability issue.").


Ehrig argues that the Hindenlang case is distinguishable because the return he filed did not merely parrot the SFR as did Hindenlang's, but contained the fruits of his good faith and diligent investigation and research into his 1990 income and expenses, which resulted in a return that more accurately depicted his tax liability than the SFR. This raises the question: If the debtor files a return only for the pur╜pose of minimizing already assessed tax liability, is that an "honest and reasonable attempt to satisfy the requirements of the tax law?" The Fourth Circuit Court of Appeals addressed this precise issue in Moroney v. United States (In re Moro╜ney) , 352 F.3d 902 (4th Cir.2003).

Again, the facts in Moroney are familiar. Upon the failure of the debtor to timely file tax returns, the IRS prepared substi╜tutes for returns in order to determine and assess the debtor's tax liability. Id . at 903-04. Several years after the assess╜ment, the debtor filed returns that re╜flected a lower tax liability. Id . at 904. The IRS reduced the assessment pursuant to the debtor's late filed returns. Id . More than two years later, the debtor sought bankruptcy relief. The IRS contended that the recalculated tax debt was non╜dischargeable pursuant to Section 523(a)(1)(B)(i). The issue on appeal was whether, under these circumstances, the debtor's late filed forms were "returns" for the purposes of Section 523(a)(1)(B)(i). Id . at 905.

Applying the Germantown/Zellerbach test, the issue was again reduced to wheth╜er the debtor's returns constituted a rea╜sonable and honest effort to comply with tax laws. The debtor contended that the court should examine the diligence and good faith of the debtor's efforts to satisfy the tax laws as of the time he filed his late returns. The IRS asserted that when a taxpayer files a return only after the IRS has already invested resources in prepar╜ing substitutes for returns, notifying of deficiencies and assessing the tax, and the taxpayer files for the purpose of obtaining a reduction in the assessment, the taxpay╜er has not honestly and reasonably at╜tempted to comply with the tax laws. Id . at 905. The Fourth Circuit agreed with the IRS, concluding that "a debtor's delin╜quency is relevant to determining whether the debtor has filed a return. The very essence of our system of taxation lies in the self-reporting and self-assessment of one's tax liabilities." Id . at 906. Further, [a] reporting form filed after the IRS has completed the burdensome process of assessment without any assistance from the taxpayer does not serve the basic purpose of tax returns: to self-report to the IRS sufficient information that the returns may be readily pro╜cessed and verified . . . . Simply put, to belatedly accept responsibility for one's tax liabilities, only when the IRS has left one with no other choice, is hardly how honest and reasonable taxpayers at╜tempt to comply with the tax code.

Id . (citations omitted). Cf. United States v. Hatton (In re Hatton) , 220 F.3d 1057, 1061 (9th Cir.2000)(finding that a substi╜tute for return was not a "return" under Section 523(a)(1)(B)(i) because taxpayer's "belated acceptance of responsibility [by executing an installment agreement and accepting without objection the assessed liability after the IRS filed a substitute for return] ... does not constitute a reasonable attempt to comply with the require╜ments of the tax law").

The debtor in Moroney argued that be╜cause the IRS accepted his returns and reduced his tax liability accordingly, the IRS itself admitted the honesty and accu╜racy of the returns. The court concluded, however, that "Moroney's argument miss╜es the point. The relevant inquiry is whether Moroney made an honest and rea╜sonable effort to comply with the tax law, not whether Moroney's eventual effort had some effect on his tax liability." Moroney , 352 F.3d at 906.

Under Moroney's approach, the avail╜ability of discharge would turn on the IRS's accuracy in assessing taxes, rath╜er than on Moroney's sincerity and dili╜gence in complying with the tax code. In effect, Moroney failed to provide the IRS with the very information it needed to accurately assess his taxes, and now he seeks to benefit from the IRS's re╜sulting imprecision (which was hardly surprising, given Moroney's lack of as╜sistance). Moroney's approach would only discourage the IRS from abating debtors' tax liabilities-especially when any adjustment, no matter how small, would lead to a discharge of the entire tax liability, no matter how late.

Id . at 906. The court held that the debtor, "too busy for no less than six years, to file returns, and whose ultimate filing was merely an attempt to lessen the liability that he never wanted to assume," did not file a return "in any meaningful sense of that word." Id . at 907. The court refused to declare, however, that a post-SFR, post-assessment filing could never be deemed a "return" for the purposes of Section 523(a)(1)(B)(i), again contemplating that a late filed accurate return might actually result in an increase of the tax liability, recognizing, however, that such a filing might also be a dishonest attempt to manipulate the facts in order to create condi╜tions necessary to discharge the tax.

Ehrig claims that Moroney , too, is dis╜tinguishable, because unlike Moroney, who the court found "too busy" to file, Ehrig explained the circumstances that caused his "delay" in filing, which included a di╜vorce, job loss, loss of home and car, and the attendant distress. The Court sympa╜thizes with Ehrig's plight, but concludes as a matter of law that these hardships, which befall large segments of the popula╜tion at some time or another in their tax╜paying careers, cannot excuse a failure to file a return for nine years. 8


8. ═ The Court also notes that seeking to reduce tax liability by filing a post-SFR return sub╜verts the protest and appeals processes estab╜lished by the tax code and regulations. In 1997, six years after the 1990 return was due, Ehrig could have challenged the accuracy of the SFR and the assessed tax liability during the ninety day contest period outlined in the deficiency letter, by filing a petition in Tax Court. Instead, Ehrig did nothing. It was not until 1999 that Ehrig became seriously interested in observing his obligations under the tax laws.


Ehrig also urges the Court to judge his good faith in attempting to com╜ply with tax laws by reviewing his efforts immediately preceding the filing of the belated return, as some bankruptcy courts have. See, e.g., United States v. Nunez (In re Nunez) , 232 B.R. 778, 783 (9th Cir. BAP 1999) (focusing the good faith inquiry on the debtor's intent at the time of filing); Crawley v. United States (In re Crawley) , 244 B.R. 121, 127-28 (Bankr.N.D.Ill.2000) (same). The Court concludes, however, that the inquiry into honesty and good faith in complying with the tax laws must encompass the entire period during which a return was outstanding, beginning at the time the return was originally due. 9 A deathbed conversion from being a chronic non-filer to an earnest (but late) filer does not serve the policy of uniform, timely and accurate self-reporting upon which the tax system is based.


9. ═ Arguably, according to the Walsh and Mi╜niuk decisions, after assessment, a return is no longer due and efforts made by a debtor to file a return at that point cannot be attempts to comply with the law but instead constitute attempts to minimize or eliminate (discharge) tax liability.


Ehrig asserts that notwithstanding the logic and appeal of the Hindenlang and Moroney analyses, this Court is con╜strained to follow the precedent set by the Bankruptcy Appellate Panel for the Tenth Circuit Court of Appeals in Savage v. IRS (In re Savage) , 218 B.R. 126 (10th Cir. BAP 1998). In Savage , the IRS filed sub╜stitutes for returns for a non-filing debtor and issued notices of deficiency affording the debtor ninety days to seek reconsider╜ation by the Tax Court. The debtor did not challenge the deficiency and the IRS assessed the taxes. Id . at 128. Years later, the debtor, who resided in Wyoming, prepared and delivered certain post-as╜sessment returns to the regional IRS of╜fice located in Oregon although the region╜al office assigned to residents of Wyoming is in Ogden, Utah, and delivered other post-assessment returns to the Ogden re╜gional office. The returns were accepted and processed as amended returns and tax was assessed pursuant to the amended returns. More than two years later, the debtor filed bankruptcy and sought a dec╜laration that the taxes were discharged.

The first issue on appeal was whether the returns delivered to the wrong region╜al office could be considered "filed" for the purpose of applying Section 523(a)(1)(B)(i). Id . at 129. The Bankruptcy Appellate Panel concluded that merely delivering a return to any local IRS office or any re╜gional IRS service center did not constitute a "filing"; the tax code required that the return be received by a particular of╜fice or service center to qualify as a "filed" return. Id . at 131. Thus, the panel held that the taxes assessed for the years in which returns were not properly filed were non-dischargeable. Id .

The second issue in Savage was wheth╜er taxes assessed pursuant to the post-as╜sessment returns filed in the proper office and treated by the IRS as amended re╜turns were dischargeable. The panel framed the issue as "whether the Debtor's amended returns, filed after the IRS's substitutes for return, are 'returns' under ╖ 523(a)(1)(B)(i)." Id . at 131. Surveying existing bankruptcy and district court cases on the issue, the panel acknowl╜edged that courts were split, but quoted extensively and with apparent approval from the bankruptcy court's opinion in Hindenlang v. United States (In re Hindenlang) , 205 B.R. 874 (Bankr.S.D.Ohio), aff'd 214 B.R. 847 (S.D.Ohio 1997), rev'd 164 F.3d 1029 (6th Cir.), cert. denied 528 U.S. 810, 120 S.Ct. 41, 145 L.Ed.2d 37 (1999), for the proposition that Section 523(a)(1)(B)(i) does not specifically man╜date that taxes sought to be discharged be based upon a return filed prior to assessment by the IRS. Savage , 218 B.R. at 132. The bankruptcy court in Hinden╜lang maintained that the only condition to discharge provided in the statute relating to the time of filing a return was the two-year rule, which requires that the return be filed more than two years prepetition. Id . The panel agreed with the Hinden╜lang bankruptcy court's reasoning, further concluding that the IRS's position, that a document filed subsequent to assessment pursuant to a substitute for return could never be a "filed return" under Section 523(a)(1)(B)(i) "would lead to absurd re╜sults," particularly that "a debtor, for whom the IRS prepares substitute re╜turns, could never discharge taxes." Id . at 132. 10


10. ═ A handful of courts agree with Savage that Section 523(a)(1)(B)'s two year rule is the exclusive time limitation affecting recognition of a return for the purpose of determining dischargeability on the ground that a return was not filed. See, e.g., United States v. Nunez (In re Nunez) , 232 B.R. 778, 783 (9th Cir. BAP 1999); Woods v. IRS (In re Woods) , 285 B.R. 284, 289 (Bankr.S.D.Ind.2002); Crawley v. United States (In re Crawley) , 244 B.R. 121, 127 (Bankr.N.D.Ill.2000); Ralph v. United States (In re Ralph) , 258 B.R. 504, 509 (Bankr.M.D.Fla.2000), rev'd 266 B.R. 217 (M.D.FIa.2001). But see Miniuk v. United States (In re Miniuk , 297 B.R. 532, 540 (Bankr.N.D.Ill.2003) (expressly declining to follow Savage or Nunez ); Walsh v. United States (In re Walsh) , 260 B.R. 142, 151 (Bankr.D.Minn.2001), aff'd 2002 WL 1058073 (D.Minn.) (examining the good faith of a debtor's efforts to comply with tax laws by filing a return after a return is no longer required leads to absurd results).

Other courts recognize that the Sixth Cir╜cuit's decision in Hindenlang does not "en╜graft a[n] [additional] timing requirement onto ╖ 523(a)(1)(B)" but rather "instructs that the determination of whether a debtor's submission to the IRS constitutes a 'return' . . . must take into account whether that sub╜mission would qualify as a return for any purpose under the Internal Revenue Code." United States v. Pierchoski (In re Pierchoski) , 243 B. R. 267, 271 (W.D.Pa.1999).


As established above, however, the bankruptcy court's opinion in Hindenlang was subsequently reversed by the Sixth Circuit Court of Appeals, see United States v. Hindenlang (In re Hindenlang) , 164 F.3d 1029, 1033 (6th Cir.), cert. denied 528 U.S. 810, 120 S.Ct. 41, 145 L.Ed.2d 37 (1999), casting doubt upon the current vi╜tality of Savage , as the panel may have been persuaded toward a contrary conclu╜sion by the Sixth Circuit's opinion. 11 In any event, the panel in Savage consciously narrowed the applicability of its holding, leaving for another day a decision on the issue of whether a post-assessment return qualifies as a "return" under the German╜town/Zellerbach test.


11. ═ In United States v. Pierchoski (In re Pier╜choski) , 243 B.R. 267 (W.D.Pa.1999), the dis╜trict court reversed a bankruptcy court that had, like the panel in Savage , relied upon the lower court opinions in the Hindenlang case to conclude that a debtor's tax debts were dischargeable. During the pendency of the appeal in Pierchoski , the Sixth Circuit re╜versed the lower courts in Hindenlang and established the rule that to qualify as a return, a filing must serve some tax purpose. The district court in Pierchoski thus remanded the matter for a determination of whether the post-assessment returns filed by the debtor had any tax purpose. Id . at 267. On re╜mand, the bankruptcy court concluded that the post-assessment returns served no tax-related purpose and accordingly held that the debtor had not filed a "return" and that the tax liability was therefore non-dischargeable. Pierchoski v. United States (In re Pierchoski) , 243 B.R. 639 (Bankr.W.D.Pa.1999).


[W]e note that numerous courts have relied on the definition of "return" es╜tablished by the Supreme Court in Ger╜mantown Trust Co. v. Commissioner , 309 U.S. 304[, 60 S.Ct. 566, 84 L.Ed. 770] . . . (1940), and Zellerbach Paper Co. v. Helvering , 293 U.S. 172[, 55 S.Ct. 127, 79 L.Ed. 264] . . . (1934), to deter╜mine whether a document is a "return" under ╖ 523(a)(1)(B). [citations omitted]. Under these cases, a document must: (1) purport to be a return; (2) be sworn to as such, under penalties of perjury; (3) contain sufficient data to allow calcu╜lation of tax; and (4) appear on its face to constitute an honest and genuine en╜deavor to satisfy the law . . . . We cannot use this definition in this case, however, as the IRS, the party with the burden of proving the Debtor's debts to be nondis╜chargeable, apparently did not raise this argument before the Bankruptcy Court. As a result and because it involves factu╜al inquires that are beyond the scope of the appellate record, we will not address it in this case.

Id . at 132-33. Any pronouncement in Sav╜age regarding the sufficiency of a docu╜ment as a "return" under the German╜town/Zellerbach definition is clearly dicta and this Court is not bound by dicta. 12 Nonetheless, Ehrig argues that the Bank╜ruptcy Appellate Panel's statement of the Germantown/Zellerbach test indicates that the Tenth Circuit has adopted the defini╜tion as set forth in Savage and that it is this statement of the definition that this Court must apply. Ehrig's Brief at 4. The last factor recited in Savage , that the docu╜ment that purports to be a return must " appear on its face to constitute an honest and genuine endeavor to satisfy the law," seems to require a less stringent examina╜tion of the conduct of the debtor than that factor has been interpreted by other courts. See, e.g., United States v. Hatton (In re Hatton) , 220 F.3d 1057, 1060-61 (9th Cir.2000)(the document must "repre╜sent an honest and reasonable attempt to satisfy the requirements of the tax law"); Swanson v. Commissioner , 121 T.C. 111, 122, 2003 WL 22020782 (2003) (same); Mi╜niuk v. United States (In re Miniuk) , 297 B.R. 532, 536 n. 9 (Bankr.N.D.Ill.2003) (same); Crawley v. United States (In re Crawley) , 244 B.R. 121, 127-28 (Bankr. N.D.Ill.2000) (same); Rushing v. United States (In re Rushing) , 273 B.R. 223, 226 (Bankr.D.Ariz.2001) (same). But see Unit╜ed States v. Nunez (In re Nunez) , 232 B.R. 778, 783 (9th Cir. BAP 1999) (adopts Sav╜age's "on its face" language; arguably overruled by Hatton , supra ); United States v. Ralph , 266 B.R. 217, 219 (M.D.Fla.2001) (uses "appear on its face" language, but concluded that even returns on proper forms were not "returns" if they served no tax purpose).

Pursuant to the Savage definition, Ehrig would have the Court examine the document itself to determine whether it appears to contain sufficient relevant infor╜mation to compute a tax. Under Ehrig's interpretation, only the appearance and content of the document are relevant. The courts in Hindenlang and Moroney , how╜ever, place great weight on the history and behavior of the taxpayer and the circum╜stances under which the document was filed. Indeed, limiting the inquiry to the face of the document would render the fourth factor redundant since the first fac╜tor requires that the document "purport to be a return" and the third factor requires the document to contain sufficient data to calculate tax liability. The Court also notes that the original articulation of this element by the Tax Court in Beard v. Commissioner , 82 T.C. 766, 777, 1984 WL 15573 (1984), aff'd 793 F.2d 139 (6th Cir. 1986) i.e. , "there must be an honest and reasonable attempt to satisfy the require╜ments of the tax law''-did not restrict the investigation into "honest and reasonable attempts" to an examination of the face of the document. In any event, because the panel in Savage declined to address wheth╜er the Germantown/Zellerbach definition of a "return" was even applicable to determine the validity of a post-assessment re╜turn for dischargeability purposes, its statement of the definition is not prece╜dential.

The Court concludes that the document Ehrig submitted to the IRS in 2000 for tax year 1990, the accuracy of which was ulti╜mately rejected by the IRS, although it may have been as accurate as was possible after such an extended delay, was a self-serving attempt to reduce his tax liability after the IRS (1) prepared and filed an SFR without the cooperation of Ehrig, (2) sent a notice of deficiency, to which Ehrig failed to respond, (3) assessed the 1990 Tax Liability, which Ehrig failed to con╜test, and was so long belated that it can╜not, as a matter of law, be deemed an honest attempt to comply with tax laws. Moreover, the filing served no tax purpose; it did not allow tax liability to be assessed, it did not affect the amount of liability, 13 nor it did not abate or purge penalties or other liabilities incurred on account of fail╜ing to timely file. Accordingly, the Court concludes, as a matter of law, that the document was not a "return" as that term is given effect in Section 523(a)(1)(B)(i). Closely allied with the conclusion that the document served no tax purpose is the fact that a return was no longer required at the time of Ehrig's 2000 submission and there╜fore Ehrig's 2000 submission did not cure his filing delinquency for tax year 1990. Pursuant to both of these theories, the Court declares the 1990 Tax Liability non╜dischargeable.


13. ═ Whether the IRS was justified in refusing to reconsider its previous assessment or ac╜cept Ehrig's declaration of filing status, real╜located income and deductions is not relevant here, since Ehrig had and missed the opportunity to challenge the IRS's refusal to recon╜sider the assessment. In any event, this Court is not empowered to review that decision by the IRS.


C. ═ Non-dischargeability under Section 523(a)(1)(C)

Section 523(a)(1)(C) provides that a claim for a tax "with respect to which the debtor made a fraudulent return or willful╜ly attempted in any manner to evade or defeat such tax" is non-dischargeable. 11 U.S.C. ╖ 523(a)(1)(C). Ehrig obliquely contends that the undisputed material facts establish that he did not file a fraudu╜lent return or willfully attempted to evade or defeat the 1990 Tax Liability. Ehrig's Brief at 5; Ehrig's Response at 2. As the non-movant, the IRS had the duty to artic╜ulate facts and come forward with admissi╜ble evidence in support of fraud or willful evasion in order to defeat Ehrig's request for summary judgment on the issue of non-dischargeability under Section 523(a)(1)(C). In the IRS Response, the IRS did not submit evidence sufficient to establish a prima facie case of fraud or willful evasion. Thus, the Court concludes that the 1990 Tax Liability is not non╜dischargeable under Section 523(a)(1)(C).

V. Conclusion

The United States' Motion for Summary Judgment is granted. Plaintiff's Motion for Summary Judgment is granted in part (with respect to negating non-discharge╜ability under 11 U.S.C. ╖ 523(a)(1)(A) and (a)(1)(C)) and denied in part (with respect to non-dischargeability under 11 U.S.C. ╖ 523(a)(1)(B)). The 1990 Tax Liability is hereby declared non-dischargeable pursu╜ant to 11 U.S.C. ╖ 523(a)(1)(B).


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