In re Dobisch
| Decision Date | 13 April 1993 |
| Docket Number | Bankruptcy No. 91-29792-D,Adv. No. 91-0811. |
| Citation | 156 BR 546 |
| Parties | In re Jeffrey J. DOBISCH, Debtor. Jeffrey DOBISCH, Plaintiff, v. UNITED STATES of America and George W. Stevenson, Defendants. |
| Court | U.S. Bankruptcy Court — Western District of Tennessee |
G. Keith Rogers, Jr., Memphis, TN, for plaintiff.
Barbara M. Zoccola, U.S. Atty's. Office, Memphis, TN, for defendants.
This cause is before the Court on a Motion for Summary Judgment filed by plaintiff/debtor, Jeffrey Dobisch. On September 5, 1991, the debtor filed a voluntary petition under chapter 13 of the Bankruptcy Code. Under the debtor's confirmed chapter 13 plan, the Internal Revenue Service ("IRS") was listed as a priority creditor to receive $159.00 per month. On December 27, 1991, the debtor filed this adversary proceeding seeking to have the claim filed by the IRS disallowed. On February 6, 1992, this court entered an "Order Granting Petition for Temporary Restraining Order" enjoining the chapter 13 trustee from making any disbursements to the IRS and ordering it to hold all payments to the IRS pending a final determination in the adversary proceeding with regard to the claim of the IRS. On March 17, 1992, the defendants filed their response to the plaintiff's complaint and petition for temporary injunction.
Plaintiff argues in his motion for summary judgment that there is no genuine issue of material fact and moves the Court to enter an Order declaring that, as a matter of law:
A remaining issue is whether the plaintiff is entitled to recover damages, costs, expenses and attorney's fees pursuant to 26 U.S.C. § 7430, 26 U.S.C. § 7432, 26 U.S.C. § 7433 and 28 U.S.C. § 2412.
Plaintiff is the surviving son of Donald Dobisch who died intestate on May 16, 1984. Pursuant to the Tennessee Laws of Intestate Succession, the plaintiff acquired an undivided interest in 1448 Merrycrest Drive, Memphis, Tennessee which was owned by Donald Dobisch at the time of his death.
Jeffrey Dobisch testified that either on April 15, 1985 or shortly before, he mailed a final Form 1040 on behalf of his deceased father for the tax year ending December 31, 1984. On June 13, 1985, the IRS sent a form letter to Jeffrey Dobisch explaining that it either needed more information or did not have the fully completed forms that were required. Specifically, he had either failed to file a Form 1310 or the Form 1310 did not contain enough information. See, Ex. 1. Dobisch was also to send other required documents such as a court certificate evidencing the plaintiff's appointment as personal representative and a copy of the death certificate. Id. The IRS received the additional information required on July 12, 1985. See Ex. 2 to Jeffrey Dobisch Affidavit.
On August 19, 1985, the IRS assessed the tax against the estate of Donald Dobisch. The notice indicated that Donald Dobisch's income tax liability was $2,887 for the tax year 1984. The Service Center also assessed a late filing penalty of $398.27, an under payment penalty of $163.28, a late penalty of $26.55 and interest of $129.67. See Ex. 2. On May 18, 1987, the Service Center abated the late filing penalty for "reasonable cause shown." See Request for Adjustment.
On April 12, 1989, the IRS issued a Notice of Deficiency to the debtor in the amount of $2,975.00 as a transferee of assets of the deceased. Debtor did not file a petition with the Tax Court to contest the deficiency notice. The IRS avers it assessed the transferee's liability of the tax owed by the deceased to Jeffrey Dobisch on October 2, 1989. Subsequently, the IRS filed a "Notice of Federal Tax Lien Under Internal Revenue Law" in the Shelby County Register's Office and on July 8, 1991, wrote a letter to the debtor giving notice of intent to levy on the property. On August 15, 1991, the IRS gave notice of levy against the property and seized it on August 16, 1991.
Summary Judgment is available for a moving party only when, after consideration of the evidence presented by the pleadings, affidavits, answers to interrogatories, and depositions in a light most favorable to the non-moving party, there remain no genuine issues of material fact. F.R.B.P. 7056(c). The mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment, the requirement being that there be no genuine issue of material fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Street v. J.C. Bradford & Co., 886 F.2d 1472 (6th Cir.1989).
The debtor requests summary judgment on the following three issues:
A discussion of the issues will be taken in the order presented by the debtor. Thus, the Court will first consider whether the IRS timely assessed the transferee tax against Jeffrey Dobisch for the liability owed by Donald Dobisch.
I.R.C. § 6501(a) and § 6901(c) provide that the period of limitations for assessing tax against the transferee is one year after the expiration of the period for assessment against the transferor, which is three years. Furthermore, pursuant to I.R.C. § 6503(a)(1), the statute of limitations on assessment is suspended while the IRS is prohibited from assessing the tax (90 days) and for 60 more days following the prohibition of assessment. Thus, the IRS had four years plus 150 days from the time the IRS received a completed and signed final Form 1040 filed by the debtor on behalf of his deceased father in which to assess the transferee tax. Under the provisions of the Internal Revenue Code, the statute of limitations for assessment of a tax imposed under the Code commences to run on the date the return is actually filed. Automobile Club of Mich. v. C.I.R., 353 U.S. 180, 77 S.Ct. 707, 1 L.Ed.2d 746, rehearing denied, 353 U.S. 989, 77 S.Ct. 1279, 1 L.Ed.2d 1147 (1957). In order for a return to be deemed "filed" for purposes of determining the statute of limitations for assessments, it must both contain all the information necessary for a determination of tax liability and be properly signed or verified. See, Haring v. U.S., 142 F.Supp. 782 (D.C.Ohio 1956) and I.J. Knight Realty Corp., 431 F.Supp. 946 (D.C.Pa.1977).
The debtor contends that he filed the final return of Donald Dobisch on April 15, 1985. The IRS, on the other hand, argues that a signed and completed return was not filed until July 12, 1985. Debtor testified that on April 15, 1985, he filed his father's 1984 final income tax return, along with the debtor's own personal return, by dropping both in a U.S. Mailbox. (Transcript, p. 51). Debtor, further testified that he did not file a statement of refund due a deceased taxpayer (Form 1310) with his father's return since the return showed a tax owing for that year. (Transcript, p. 52).
A letter sent to the debtor by the IRS dated June 13, 1985 (Ex. 1) states in pertinent part as follows:
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