76 F.3d 306 (9th Cir. 1996), 94-55890, In re Osborne

Docket Nº:94-55890.
Citation:76 F.3d 306
Party Name:96 Cal. Daily Op. Serv. 963, 96 Daily Journal D.A.R. 1599 In re Rex O. OSBORNE; Helen C. Osborne, Debtors. UNITED STATES INTERNAL REVENUE SERVICE, Appellant, v. Rex O. OSBORNE, fdba: the Original Hamburger Stand # 7; fdba: Tommies Hamburgers; Helen C. Osborne, fdba; the Original Hamburger Stand # 7; fdba: Tommies Hamburgers, Appellees.
Case Date:February 12, 1996
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
FREE EXCERPT

Page 306

76 F.3d 306 (9th Cir. 1996)

96 Cal. Daily Op. Serv. 963,

96 Daily Journal D.A.R. 1599

In re Rex O. OSBORNE; Helen C. Osborne, Debtors.

UNITED STATES INTERNAL REVENUE SERVICE, Appellant,

v.

Rex O. OSBORNE, fdba: the Original Hamburger Stand # 7;

fdba: Tommies Hamburgers; Helen C. Osborne,

fdba; the Original Hamburger Stand # 7;

fdba: Tommies Hamburgers, Appellees.

No. 94-55890.

United States Court of Appeals, Ninth Circuit

February 12, 1996

Argued and Submitted Dec. 13, 1995.

Page 307

Marc J. Winter, Taylor, Simonson & Winter, Claremont, California, for appellees.

Gary R. Allen (on the briefs) and Gary D. Gray (argued), United States Department of Justice, Tax Division, Washington, D.C., for appellant.

Appeal from the Bankruptcy Appellate Panel of the Ninth Circuit; OLLASON, JONES, and MEYERS, Judges, Presiding.

Before: ALDISERT, [*] FARRIS and RYMER, Circuit Judges.

ALDISERT, Senior Circuit Judge.

We are to decide a case that arose prior to the enactment of the Bankruptcy Reform Act of 1994, Pub.L. No. 103-394, 108 Stat. 4106 (codified as amended at 11 U.S.C. § 502(b)(9) (1995)). This new statute specifically provides that a claim may be disallowed if proof of such claim is not timely filed. This amendment to the Bankruptcy Code, however, applies only to cases filed after October 22, 1994, the effective date of the Reform Act. Because this case was filed before that date, we must interpret the statutes, rules and case law that governed proceedings prior to the effective date.

This appeal by the United States from a judgment of the Bankruptcy Appellate Panel of the Ninth Circuit requires us to decide whether the government's claim for taxes, advanced by the Internal Revenue Service (IRS) in a Chapter 13 proceeding, was timely filed under Rule 3002 of the Bankruptcy Rules. We must decide whether this case is governed by the teachings of In re Tomlan, 102 B.R. 790, 791-92 n. 1 (E.D.Wash.1989), aff'd per curiam, 907 F.2d 114 (9th Cir.1990), or In re Pacific Atlantic Trading Co. (United States v. Towers), 33 F.3d 1064 (9th Cir.1994). We hold that there is a fundamental distinction between Chapter 13 and Chapter 7 timeliness requirements. Because timeliness is of the essence in claims filed in a Chapter 13 reorganization, this case is governed by the strict time requirements on filing claims set forth in In re Tomlan. Accordingly, we affirm the judgment on the basis that the IRS claims were not timely filed. In reaching this conclusion, we decide that the teaching of Pacific Atlantic is limited to Chapter 7 proceedings.

The Bankruptcy Appellate Panel had jurisdiction under 28 U.S.C. §§ 158(a) and 158(b)(1). This court has jurisdiction under 28 U.S.C. § 158(d). Appeal was timely filed under Rule 4(a), Federal Rules of Appellate Procedure.

Whether a claim may be disallowed in a bankruptcy proceeding on the ground that the proof of claim was not timely filed pursuant to Rule 3002(c), Fed.R.Bankr.P., is a question of law subject to de novo review. Pacific Atlantic, 33 F.3d at 1065 (citing In re Acequia, Inc., 787 F.2d 1352, 1357 (9th Cir.1986)).

Page 308

I.

The facts are not in dispute. Rex and Helen Osborne are debtors who filed a joint voluntary petition under Chapter 13 of the Bankruptcy Code on July 24, 1991. The debtors' schedule included, as priority unsecured debts, income and payroll taxes for the tax years 1985 through 1987 in the amount of $9,228 and income taxes for the tax years 1989 through 1990 in the amount of $16,000. The debtors' plan, which provided for full payment of these priority claims, was confirmed by the bankruptcy court on October 2, 1991. The bankruptcy court established December 31, 1991 as a bar date for filing timely proofs of claim.

The IRS filed a proof of claim on December 24, 1991 for $11,746.10, including estimates for personal income taxes for the tax years 1985 through 1989. A supplemental claim filed April 10, 1992 detailed personal income taxes for the years 1986 through 1990 in the amount of $31,470.32. A second amended claim followed on November 30, 1992, asserting for the first time a claim for unpaid payroll taxes. This claim, for $214,287.69, listed personal income tax liabilities and penalties for the years 1985 through 1990, and federal payroll tax liabilities and penalties for the years 1983 through 1986.

Debtors objected to the supplemental (April 10, 1992) claim on the ground that the 1990 tax year was not listed in the original proof of claim. They objected to the amended (November 30, 1992)...

To continue reading

FREE SIGN UP