Menick v. Hoffman, 13330.

Citation205 F.2d 365
Decision Date15 June 1953
Docket NumberNo. 13330.,13330.
PartiesMENICK v. HOFFMAN et al.
CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)

Samuel A. Miller, Los Angeles, Cal., for appellant.

Greenbaum, Wolfe & Baker, Robert L. Ordin, Los Angeles, Cal., for appellee Hoffman.

Before STEPHENS and POPE, Circuit Judges, and McCORMICK, District Judge.

McCORMICK, District Judge.

A. S. Menick, as Trustee for the Estate of Arthur Hoffman, bankrupt, appeals from an order of the District Court which reversed a referee's order sustaining objections of the trustee to an allowance of an amended additional tax claim of the United States Collector of Internal Revenue.

The record discloses the following factual situation: The first meeting of creditors in this bankruptcy proceeding was held May 22, 1950, and the last day for filing claims herein was November 22, 1950, in the absence of any order for additional time as provided by Section 57, sub. n, of the Bankruptcy Act,1 herein also called the Act. On November 21, 1950, a claim was filed in the office of the referee by the United States of America through its appropriate Collector of Internal Revenue in the sum of $595.23, certified by such Collector to be the sum due for withholding taxes for the first quarter of 1950 in the sum of $510.90, and for federal insurance contribution for the first quarter of 1950 in the sum of $84.12, and a further sum of 21¢ as interest thereon.

On May 23, 1951, six months and one day after the time limit permitting the filing of claims in the absence of an order extending time as provided by Section 57, sub. n, of the Act, the Collector of Internal Revenue filed in the referee's office what was denominated and certified by the said Collector as an "Amended additional claim" of the United States for internal revenue taxes in the sum of $5,215.32, being income taxes due to the United States of America by the bankrupt and the bankrupt's wife for the years 1944, 1945 and 1946, as more fully appears from the said "Amended additional claim."

In due time and within eight days after May 23, 1951, and on or about the 31st day of May, 1951, the trustee, appellant herein, caused to be filed objections to the "Amended additional claim," which objections came on for hearing before the referee on June 5, 1951.

The objections to the "Amended additional claim" and a written notice of hearing thereof before the referee in bankruptcy on June 5, 1951, was directed to and served upon the United States Attorney and the Collector of Internal Revenue, and was also served upon the bankrupt. The bankrupt, although not expressly directed in the notice to do so, appeared and participated at the hearing before the referee on the trustee's objection to the "Amended additional claim" of the Collector of Internal Revenue.

At the hearing before the referee on the "Amended additional claim" on June 5, 1951, no evidence was introduced by the testimony of any witness, but the verified "Amended additional claim" and the trustee's objections were before the referee for his consideration and appropriate action. The Collector of Internal Revenue was represented by his attorney who appeared at the hearing. The trustee and appellant herein appeared by his attorney, and the bankrupt, appellee herein, also appeared by one of his attorneys, who filed a reply to trustee's objection to the "Amended additional claim" of the United States with a memorandum of points and authorities on the subject which were served on the respective attorneys for the Collector of Internal Revenue and the trustee of the bankrupt estate.

At this hearing the attorney for the Collector of Internal Revenue asked for time to file a brief, and the attorney for the bankrupt, appellee herein, likewise asked for time to file a brief. The attorney for the bankrupt, appellee herein, did file a brief, but the attorney for the Collector of Internal Revenue did not file any brief and acquiesced in the ruling of the referee which sustained the trustee's objections to the said "Amended additional claim."

The Collector of Internal Revenue did not petition the District Court for a review of the referee's order sustaining the trustee's objection to the said "Amended additional claim" filed by the Collector of Internal Revenue. The review to the District Court was solely by the bankrupt, appellee herein, who while not a party specifically named in the trustee's written objections to the said "Amended additional claim," did, as before stated, appear and participate in the referee's hearing which eventuated in the referee's order involved in this appeal.

This appeal involves no factual dispute, but presents three basic questions of law:

Firstly, under the record as a whole, is the bankrupt a "person aggrieved" within the meaning and scope of Section 39, sub. c, of the Bankruptcy Act?2 11 U.S.C.A. § 67, sub. c.

When the purposes and consequences of an ordinary orderly bankruptcy proceeding are considered it is clear that the bankrupt, being in a precarious and vexatious legal situation relative to his eventual discharge from tax debts due to the United States, was aggrieved by the referee's order rejecting the amended claim filed by the Collector of Internal Revenue. In such situation the bankrupt was entitled to petition for review and to have the District Judge consider and determine the merits of such petition.

The ruling of the referee rejecting...

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54 cases
  • In re Friesenhahn
    • United States
    • U.S. Bankruptcy Court — Western District of Texas
    • July 18, 1994
    ...to the formerly timely filed claim. In re Kolstad, 928 F.2d at 175. At one polar end of the continuum of relatedness is Menick v. Hoffman, 205 F.2d 365 (9th Cir.1953). In Menick, a case decided under the Bankruptcy Act of 1898 repealed, the IRS filed a claim for delinquent withholding taxes......
  • In re Harper, Bankruptcy No. 89-60943.
    • United States
    • U.S. Bankruptcy Court — Northern District of Indiana
    • August 12, 1991
    ...not make it a new claim and may be made after the six month period under § 57n has expired.") (footnote omitted); see, Menick v. Hoffman, 205 F.2d 365 (9th Cir.1953); Continental Motors Corp. v. Morris, 169 F.2d 315 (10th Cir.1948); Industrial Commissioner v. Schneider, 162 F.2d 847 (2d Cir......
  • In re Diversified Brokers Company, Inc., 69 B 569.
    • United States
    • U.S. District Court — Eastern District of Missouri
    • February 14, 1973
    ...In re Faulkner (8 Cir., 1908) 161 F. 900. Such amendments which merely increase the amount of the claim are not barred. Menick v. Hoffman (9 Cir., 1953) 205 F.2d 365; Continental Motors Corp. v. Morris (10 Cir., 1948) 169 F.2d 315; Industrial Commissioner of New York v. Schneider (2 Cir., 1......
  • In re Lona
    • United States
    • U.S. Bankruptcy Court — Northern District of California
    • July 9, 2008
    ...Willard, 240 B.R. 664, 668 (Bankr. D.Conn.1999) (citing In re Toms, 229 B.R. 646, 650-51 (Bankr.E.D.Pa.1999)); see also, Menick v. Hoffman, 205 F.2d 365 (9th Cir.1953) (debtor was a "person aggrieved" with standing to challenge disallowance of tax claim where, if tax claim was not paid in b......
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