Matter of Rosemiller

• Decision Date: 25 August 1995
• Docket Number: Bankruptcy No. 92-15370.
• Parties: In the Matter of Robert J. ROSEMILLER, Debtor.
• Court: U.S. Bankruptcy Court — District of New Jersey

188 B.R. 129 (1995)

In the Matter of Robert J. ROSEMILLER, Debtor.

Bankruptcy No. 92-15370.

United States Bankruptcy Court, D. New Jersey.

August 25, 1995.

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Robert J. Rosemiller, Laurel Springs, NJ, Pro Se.

Steven W. Ianacone, United States Attorney, Newark, NJ, for Internal Revenue Service.

Robert M. Wood, Chapter 13 Trustee, Manasquan, NJ.

OPINION

JUDITH H. WIZMUR, Bankruptcy Judge.

We consider here the final resolution of debtor's motion for reconsideration of our ruling on debtor's objection to the proof of claim filed by the Internal Revenue Service. As a corollary, we also consider debtor's supplemental motion, characterized as a motion "to declare government's exhibits inadmissible in evidence."

FACTS AND PROCEDURAL HISTORY

On November 2, 1992, Robert J. Rosemiller ("debtor") filed a voluntary petition for relief, pro se, under Chapter 13 of the Bankruptcy Code. Debtor's assets, as listed in his schedules, included an interest as a "co-tenant" of a single family home with a value of $100,000, encumbered by a $30,000 mortgage held by Fidelity Bond Mortgage Company. Debtor also listed personal property in the amount of $11,420 against which he claimed $3,550 in personal exemptions. In addition to the Fidelity mortgage, debtor scheduled other debts in the amount of $2,182, including an unsecured priority claim held by the United States Internal Revenue Service ("IRS") in the amount of $1,000, an unsecured non-priority claim held by Kennedy Hospital of Cherry Hill in the amount of $182, and an unsecured non-priority claim held by the Medical College of Pennsylvania in the amount of $1,000. As a self-employed artist and sign painter, debtor claimed a monthly income of $4,992.

Debtor filed a Chapter 13 plan on December 2, 1992, proposing to pay the Fidelity mortgage, on which he was current, outside of the plan, and to pay the unsecured creditors in thirty-six equal monthly payments. This court confirmed a plan on March 24, 1993 requiring the debtor to make payments of $98 per month for 36 months.

On March 17, 1993, the IRS filed a proof of claim for $71,071.12. The proof of claim indicated three categories of claims: secured claims, unsecured priority claims, and unsecured general claims. The secured claims included unpaid income taxes from 1984 to 1988, plus interest and penalties, totalling $55,301.30. The unsecured priority claims included estimates of taxes due for 1990 and 1991 plus interest, totaling $13,856.87. The unsecured general claims included a penalty on the 1990 and 1991 tax assessments, totaling $1,913.¹

On April 4, 1994, the Chapter 13 Trustee filed a motion requesting instructions regarding the treatment of the IRS proof of claim. Debtor objected to the IRS's proof of claim on June 10, 1994, asserting numerous violations of form and procedure. Specifically, debtor raised the following objections to the IRS's proof of claim:

1. The proof of claim was not written under oath or under the penalty of perjury pursuant to 26 U.S.C. § 6065, Rule 1008 of the Bankruptcy Code and 28 U.S.C. § 1746;

2. The proof of claim was an Internal Revenue Service form that "did not conform to the Rules of Bankruptcy";

3. The IRS substituted the term "unsecured general claims" for the term "unsecured non-priority claims" on its proof of claim and such term does not conform to Form 10 of the "Bankruptcy Rules";

4. The IRS did not provide any evidence of a "security interest" for the secured claim, as provided in Items 4 and 10 of Form 10;

5. The "Authority to Execute Lien and Levy Action" was based on the Internal Revenue Manual, which is of no legal precedent to the court;

6. The IRS exceeded its statutory authority by including estimated tax claims in the category of "unsecured priority claims";

7. The Secretary of the Internal Revenue Service did not, as required by the "plain language" of 26 U.S.C. § 6020, sign under penalty of perjury the "dummy returns" filed on debtor\'s behalf;

8. The IRS made no legal assessment of debtor\'s tax indebtedness, because it did not comply with IRS Form 23C; and

9. The proof of claim does not clearly specify to whom the term "United States" or "States" refers and consequently there is no clear creditor.

Asserting that the proof of claim was improperly assessed and filed, debtor argued that the burden of proof shifted to the IRS to prove debtor's liability.

The IRS responded to debtor's motion on June 29, 1994, as follows:

1. Neither the Bankruptcy Code nor Form 10 require that they sign the proof of claim under penalty of perjury;

2. The proof of claim did conform to the Rules of Bankruptcy;

3. The terms "Unsecured General Claims" and "Unsecured Non-Priority Claims" are interchangeable;

4. The IRS lien is a statutory lien under 26 U.S.C. § 6231, not a consensual security interest, and was secured by the filing of a Federal Tax Lien, the details of which are provided in the proof of claim;

5. The IRS has the power to delegate the authority to execute lien and levy authority under 26 U.S.C. §§ 7701(a)(11) and (12);

6. Amendment No. 2 of the Proof of Claim, filed June 30, 1994, lists the unsecured priority claims based on the tax years 1990 and 1991 as fixed liabilities rather than estimated claims;

7. 26 U.S.C. § 6201(a) gives the office of the Secretary the power to assess debtor\'s tax liability; and

8. A Substitute for Return (SFR) is an appropriate procedural mechanism for the assessment of debtor\'s tax liability;

9. The term United States refers to the "governmental entity."

In its response, the IRS emphasized the debtor's responsibility to file his own tax returns pursuant to 26 U.S.C. §§ 6012, 6013, 6017 and 6072(a), which he had failed to do for the tax periods in question.

The trustee's motion and the debtor's objections to the IRS proof of claim were considered on July 6, 1994. We rejected debtor's objections and determined, on the trustee's motion, to dismiss debtor's Chapter 13 petition. An order overruling debtor's objections and dismissing the petition was entered July 18, 1994.

On July 28, 1994, debtor moved for reconsideration of the July 18th order, and followed with a motion to strike sections of the IRS pleadings under Rules 11 and 12(f) of the Federal Rules of Civil Procedure. Debtor's motions were heard on October 5, 1994. We examined debtor's arguments at length, rejecting again his objections to the IRS proof of claim. Prior to the entry of a final order, however, we directed the IRS to provide to debtor and the court copies of the Substitute for Returns (SFRs), assessment documents, and the federal tax liens filed in Camden County. In response to our direction, the IRS provided certain information on December 1, 1994, including the following:

1) "Facsimile Federal Tax Lien Document" indicating that a lien was recorded on May 12, 1992, and showing a total amount due of $48,116.99 for the years 1984 through 1988;

2) Several handwritten 1040 forms (for 1984 and 1988) which reflect that they have been "prepared by the ITP Team", containing the debtor\'s name and social security number, with a slip of paper attached entitled "Deficiency Interest and Penalty Negligence or Fraud Short Form" with figures indicating the following:

                                         1984        1988
                   Tax due                $ 4,904.00    $5,342.00
                   Interest               $ 4,638.17    $1,577.01
                   N/F Int.               $ 2,319.09    $  788.51
                   Penalty                $   366.00    $  267.00
                                          ___________   _________
                Balance Due               $12,227.26    $7,974.52
                

3) Transcripts of Certificates of Assessments and Payments for the periods ending December 31, 1984 through December 31, 1990, prepared November 8, 1994; and

4) Notices of Deficiency addressed to debtor as follows:

a. Letter dated March 26, 1991, for the tax years ended December 31, 1987 and December 31, 1988, with all computations attached.

b. Letter dated July 29, 1992, for the tax year ended December 31, 1990, with all computations attached.

c. Letter dated June 23, 1993, for the tax year ended December 31, 1991, with no attachments.

In response to these documents, debtor filed a motion on January 6, 1995, "to declare the government's exhibits inadmissible as evidence", in which the debtor challenged several aspects of the IRS documents submitted. At a hearing on February 14, 1995, both parties were again offered additional opportunity to make submissions, which were received on February 24, 1995. The IRS submitted an affidavit from a Revenue Officer to describe the process by which substitutes for return are filed, collection efforts proceed, and federal tax liens are filed. The debtor also supplemented his submissions with an affidavit which, in large part, repeated pleadings he had filed previously in this matter.

DISCUSSION

On this motion for reconsideration, we observe at the outset that the bases of our previous rulings recited orally on the record at the hearings on July 6, 1994 and October 5, 1994, are incorporated herein. We seek to focus primarily on those matters which have been raised by the parties since the October 5, 1994, hearing date. As noted above, on that date, although we rejected debtor's arguments objecting to the IRS proof of claim, we left debtor's motion for reconsideration unresolved pending the submission by the IRS of the underlying documents supporting their proof of claim (e.g., substitutes for return, notice of deficiency, assessments and tax levies). The IRS submitted a "Certificate of Assessments and Payments" for each of the tax periods from 1984 through 1990, but could not locate all substitutes for return or notices of deficiency for the applicable years.

The tax liabilities asserted by the IRS in its proof of claim stem from debtor's failure to file any federal income tax returns or to pay any federal income taxes from 1984 until the present date. As described in an affidavit...