(caption unavailable)

* Local Rule 47.5 provides: "The publication of opinions that
have no precedential value and merely decide particular cases on
the basis of well-settled principles of law imposes needless
expense on the public and burdens on the legal profession."
Pursuant to that Rule, the Court has determined that this opinion
should not be published.
UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
__________________
No. 94-60694
Summary Calendar
__________________
IN THE MATTER OF: JAMES R. SNYDER, JR.,
Debtor.
JAMES R. SNYDER, JR., Appellant,
versus
INTERNAL REVENUE SERVICE,
Appellee.
______________________________________________
Appeal from the United States District Court for the
Southern District of Texas
(CA 93 321)
______________________________________________
(August 31, 1995)
Before GARWOOD, HIGGINBOTHAM and DAVIS, Circuit Judges.*
GARWOOD, Circuit Judge:
Appellant James R. Snyder, Jr. (Snyder), a debtor in Chapter
11 bankruptcy proceedings, appeals the district court's judgment
affirming the bankruptcy court's denial of his motion to reconsider

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1 Snyder was assessed liability for the nonpayment of withheld
taxes at Phoenix during the third and fourth quarters of 1981,
the first and fourth quarters of 1982, the third and fourth
quarters of 1985, and the first and second quarters of 1986.
Liability for Phoenix-Texas was assessed for the second quarter
of 1985, the first and third quarters of 1986, and the first
quarter of 1987.
2 On May 14, 1986, Snyder filed a petition on behalf of
Phoenix for reorganization under Chapter 11. Under Snyder's
management, Phoenix continued operations for a time as debtor-in-
possession, but its reorganization was converted to a Chapter 7
liquidation on January 20, 1987. Phoenix-Texas had also been
delinquent in the payment of its federal payroll taxes; in or
around June 1987, it was dissolved.
2
the award of summary judgment for the Internal Revenue Service (the
Service) on its claim against him for unpaid federal employment
taxes. We affirm.
Facts and Proceedings Below
This controversy stems from the nonpayment of federal taxes
withheld from the wages of employees of Phoenix Masonry, Inc.
(Phoenix) and Phoenix Masonry of Texas, Inc. (Phoenix-Texas), two
corporations of which Snyder was at all times chief executive
officer as well as sole director and sole shareholder. On December
28, 1987, pursuant to Internal Revenue Code (I.R.C.) § 6672, the
Service assessed liability against Snyder, as a responsible officer
of Phoenix, for unpaid withheld payroll taxes amounting to
$173,375.68 and on October 17, 1988, as a responsible officer of
Phoenix-Texas, for unpaid withheld payroll taxes in the amount of
$96,051.65.1
On December 12, 1988, Snyder, through counsel, filed a
voluntary petition for reorganization of his personal finances
under Chapter 11 of the Bankruptcy Code.2 On May 3, 1988, the

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3
Service submitted a proof of claim in the amount of $291,949, to
which Snyder filed an objection and an amended objection. On
August 6, 1990, the Service filed an amended proof of claim in the
total amount of $285,512, to which Snyder filed second and third
amended objections. The Service's proof of claim and amended proof
of claim included the employment tax liabilities assessed against
Snyder under I.R.C. § 6672 as well as an unliquidated claim for
Snyder's personal income tax liability for 1986, estimated at
$4,000.
On January 14, 1992, the Service filed a motion for summary
judgment, with supporting memorandum, on its amended proof of
claim. On February 3, 1992, the bankruptcy court held a hearing on
the motion, at which Snyder stated, "What we would really like
would be to postpone the entire matter until we can get all our
discovery, but I'm not asking that right now. I'm only asking for
two additional weeks to reply to the summary judgment motion." The
bankruptcy court granted Snyder's request for a two-week extension
on the deadline for filing a brief in opposition to the Service's
motion. Snyder made no other request for a continuance before
filing his brief, nor did he ever formally request discovery.
Snyder submitted his brief on February 20, 1992. On Monday, June
29, 1992, the bankruptcy court granted the Service's motion for
summary judgment, thereby allowing the claim.
Sixteen days later, on Wednesday, July 15, 1992, Snyder served
and filed in the bankruptcy court a "motion to reconsider" its
order granting the Service's motion for summary judgment, expressly
relying on 11 U.S.C. § 502(j) (providing for the reconsideration of

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4
an allowed or disallowed claim "for cause"). In his section 502(j)
motion, Snyder essentially reiterated those contentions raised in
his original brief. In addition to these contentions, however,
Snyder asserted that the Service's motion for summary judgment did
not address that portion of the proof of claim concerning his
estimated personal income tax liability for 1986. On April 13,
1993, the bankruptcy court denied Snyder's motion for
reconsideration because of his failure "to allege sufficient cause
for reconsideration." Snyder thereafter noticed an appeal to the
district court.
In the district court, Snyder reurged the contentions raised
in the bankruptcy court, but conceded that the Service was entitled
to summary judgment on the issue whether Snyder was a person
responsible for the nonpayment of withheld payroll taxes. In
response, the Service argued, among other things, that the district
court did not have jurisdiction over the merits of the order
granting summary judgment, but conceded the novel point raised in
Snyder's motion for rehearing, that the proof of claim should be
reduced by the $4,000 estimated as personal income tax liability
for 1986. The Service pointed out, however, that the actual
summary judgment award did not include this $4,000 sum. After
briefing and a hearing, the district court issued its "order on
appeal of denial of motion to reconsider," in which it affirmed the
bankruptcy court's denial of the motion to reconsider but ordered
that the proof of claim be amended to reflect the Service's
concession regarding the personal income tax liability. Snyder
then filed the instant appeal.

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5
Discussion
We first consider the scope of our jurisdiction in this
appeal. The Service contends that Snyder failed to timely appeal
the bankruptcy court's award of summary judgment and that the only
appealable order is that of the bankruptcy court denying Snyder's
section 502(j) motion for reconsideration. We agree. Although 28
U.S.C. § 158(a) gives the district court jurisdiction to hear
appeals "from final judgments, orders, and decrees" of the
bankruptcy court, here the only timely appeal was that from the
order of the bankruptcy court denying Synder's motion for
reconsideration. Any appeal from the order granting the Service's
motion for summary judgment was untimely. The "[f]ailure to file
a timely notice [of appeal from the bankruptcy court] deprives the
district court of jurisdiction to consider the appeal." Solomon v.
Smith, 41 F.3d 1024, 1026 (5th Cir. 1995); see Budinich v. Becton
Dickinson and Company, 108 S.Ct. 1717, 1722 (1988); Pryor v. Postal
Service, 769 F.2d 281, 285 (5th Cir. 1985) (describing adherence to
time limitations on filing notices of appeal as "mandatory and
jurisdictional").
Under Fed. R. Bankr. P. 8001, an appeal from a final judgment,
order, or decree of a bankruptcy court must be brought by filing a
notice of appeal within the time prescribed by Fed. R. Bankr. P.
8002. Rule 8002 provides that a notice of appeal "shall be filed
with the clerk within 10 days of the date of the entry of the
judgment, order, or decree appealed from." Here, the bankruptcy
court's order granting the Service summary judgment was entered
June 29, 1992; Synder's notice of appeal was filed April 23, 1993,

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3 Under Fed. Bankr. R. 9006(a), the first day of this period
is excluded from the ten-day calculation, and the last day is
included, unless it falls on a Saturday, Sunday, or legal
holiday. Ever since the 1989 amendments to Rule 9006(a),
intervening holidays and weekends are included in the calculation
unless the prescribed time is less than eight days. Id. Here
the tenth day fell on Thursday, July 9, 1992 (if intervening
holidays, Saturdays, and Sundays were excluded, the tenth day
would have fallen on Tuesday, July 14, 1992); the motion to
reconsider was not served or filed until Wednesday, July 15,
1992.
6
almost ten months later. Although the ten-day period for filing a
notice of appeal may be tolled by a section 502(j) motion for
reconsideration that is itself filed within the ten-day period,
Abraham v. Aguilar, 861 F.2d 873, 874 (5th Cir. 1988), in this case
such a motion was not filed within ten days from the entry of
summary judgment,3 and a late-filed motion may not toll what has
already expired. See Whitemere Development Corp. v. Cherry Hill,
786 F.2d 185, 187 (3d Cir. 1986). Thus, Snyder's motion, filed
sixteen days after the entry of summary judgment, did not operate
to toll the time within which he could have filed a timely notice
of appeal from the summary judgment. His failure to timely file
deprived the district court of jurisdiction over this aspect of the
appeal, Solomon, 41 F.3d at 1026, and our jurisdiction under 11
U.S.C. § 158(d) is no broader than that possessed by the district
court sitting on appeal below, In re Abdallah, 778 F.2d 75, 77 (1st
Cir. 1985), cert. denied, 106 S.Ct. 1973 (1986).
Snyder does not dispute that he failed to timely appeal the
summary judgment; indeed, he does not dispute that this failure
operates as a jurisdictional bar. Instead, he argues that the
district court, although styling its decision as one affirming the

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7
denial of his motion to reconsider, actually acted beyond this
jurisdictional limit, as evidenced by its modification of the proof
of claim in accordance with the Service's concession of error.
This argument begs the question. Even assuming the district court
implicitly determined that it had jurisdiction over an appeal from
the order of the bankruptcy court granting summary judgment, that
does not mean the district court in fact had such jurisdiction and
does not alter our own de novo determination on the issue.
Snyder goes on to argue that the Service's concession that the
proof of claim erroneously included a $4,000 liability means that
the Service "necessarily" conceded to the district court's exercise
of jurisdiction over the entire appeal and that, in any event, the
Service has not cross-appealed the jurisdictional question. These
arguments are totally without merit. The district court purported
to rule on the denial of the motion to reconsider, and the appellee
seeks only affirmance of the judgment below. Moreover, parties
cannot cure otherwise defective federal subject matter jurisdiction
simply by conceding to it or by waiving the defect; this Court has
a duty to police, sua sponte, the scope of its own limited
jurisdiction. Vincent v. Consolidated Operating Co., 17 F.3d 782,
785 (5th Cir. 1994); Ceres Gulf v. Cooper, 957 F.2d 1199, 1207 n.16
(5th Cir. 1992); see also Silver Star Enterprises, Inc. v. M/V
Saramacca, 19 F.3d 1008, 1013 n.6 (5th Cir. 1994) ("[W]e also have
the obligation to satisfy ourselves of the jurisdiction of the
district court."). Our review is properly confined to the denial
of the motion to reconsider. See Pryor, 769 F.2d at 285-86.
This Court has held that the bankruptcy court has broad,

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4 Although Snyder did not allege the existence of any newly
discovered evidence that could not have been discovered earlier,
he did state in a brief filed several months after his motion for
reconsideration that "[t]he Court should order a rehearing on . .
. any points to be raised by newly discovered documents once they
are acquired." Clearly, however, a rehearing is not justified
under Rule 60(b) merely because of the possibility that new,
though unspecified, evidence may be acquired.
8
virtually plenary discretion to determine, in response to a section
502(j) motion, whether to reconsider "for cause" either the
allowance or disallowance of proofs of claim. Matter of Colley,
814 F.2d 1008 (5th Cir.), cert. denied, 108 S.Ct. 234 (1987). To
demonstrate cause under 502(j), the movant must allege one of the
following bases for reconsideration under Fed. R. Civ. P. 60(b):
"(1) mistake, inadvertence, surprise, or excusable
neglect; (2) newly discovered evidence which by due
diligence could not have been discovered in time to move
for a new trial under Rule 59(b); (3) fraud . . .,
misrepresentation, or other misconduct of an adverse
party; (4) the judgment is void; (5) the judgment has
been satisfied, released, or discharged, or a prior
judgment upon which it is based has been reversed or
otherwise vacated, or it is no longer equitable that the
judgment should have prospective application; or (6) any
other reason justifying relief from the operation of the
judgment." Id.
Snyder has not alleged fraud, newly discovered evidence,4 mistake,
neglect, or any other matter capable of justifying reconsideration
under Rule 60(b); his only claimed basis for reconsideration was
"to point out to the Court that the Court had not specifically
commented" on all the issues raised in his brief filed in
opposition to the motion for summary judgment. As in Colley,
Snyder's motion for reconsideration was essentially "a rehash of
his original objections" to the proof of claim. 814 F.2d at 1010.
To the extent that Snyder's motion went beyond his original

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5 On appeal, the only evidence Snyder identifies as
undiscovered but material relates to what he considers the
liability of the bank that dishonored his overdrawn checks to the
Service. As stated below, however, whatever potential liability
the bank may have for the nonpayment of the withheld taxes is
independent of Snyder's and certainly cannot relieve him of his
own obligations under section 6672. This evidence is thus not
material to the issues decided on summary judgment. See Ginsberg
1985 Real Estate Partnership v. Cadle Company, 39 F.3d 528, 531
(5th Cir. 1994) (an issue is material for summary judgment
purposes if "its resolution in favor of one party might affect
the outcome of the lawsuit under governing law").
9
objections, he has failed to explain why these new matters could
not have been raised earlier, in his opposing brief, and why, if
they could not have been, he did not seek a further extension of
time to file his response to the Service's motion. Although Snyder
complains generally that he should have been allowed an opportunity
for discovery before summary judgment was awarded, he never
formally requested discovery, specifically stated that he did not
request a continuance for further discovery, and failed to allege
specific, material facts that he believed would be adduced through
discovery.5 In short, Snyder has not adequately raised any basis
for reconsideration under Rule 60(b). We hold, therefore, that the
bankruptcy court was well within its broad discretion not to
reconsider its order granting summary judgment.
Our conclusion that the bankruptcy court did not abuse its
discretion in denying Snyder's 502(j) motion is reinforced by the
questionable merits of his case. To obtain summary judgment, the
Service had only to establish as a matter of law that Snyder was a
person responsible for the collection, accounting for, and payment
of the withheld taxes, that he acted willfully in failing to pay
them over, and that the proof of claim represents an amount equal

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6 Given the undisputed fact that Snyder was a responsible
person under section 6672, the burden shifted to him to prove a
"lack of willfulness." Mazo v. United States, 591 F.2d 1151,
1155 (5th Cir.), cert. denied, 100 S.Ct. 82 (1979). Snyder
presented no summary judgment evidence indicating a lack of
willfulness for any period at Phoenix-Texas. The only evidence
or argument presented by Snyder concerning willfulness with
regard to Phoenix's tax liability is limited to the years 1985
and 1986; no mention is made of those taxes withheld but unpaid
during 1981 and 1982. See supra note 1.
10
to the taxes that Snyder owed as result of this willful failure.
See I.R.C. § 6672; Howard v. United States, 711 F.2d 729, 733 (5th
Cir. 1983). Although the first issue--whether Snyder is a
responsible person under section 6672--is uncontested, the second
and third issues are.
With regard to the issue of willfulness, Snyder has
consistently focused on what he considers the liability of Citizens
Bank (the bank), now known as Society Bank, for those employment
taxes withheld but unpaid by Phoenix during 1985 and 1986.6
Essentially, Snyder contends that because the bank dishonored only
those checks that would have satisfied his delinquent employment
tax liability during this time, his acts should not be considered
willful. However, whatever liability the bank may have regarding
the unpaid taxes is independent of Snyder's and cannot relieve him
of his obligations under section 6672. See McDonald v. United
States, 939 F.2d 916, 919 (11th Cir. 1991); Williams v. United
States, 931 F.2d 805, 810-11 (11th Cir. 1991). Snyder admitted
that he paid other creditors before satisfying his obligation to
pay over to the Service the withheld taxes, and this concession

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7 In response to the Service's requests for admissions, Snyder
admitted that he "authorized or allowed payments to be made to
corporate creditors other than the [Service] after [he] became
aware of the failure to pay withholding taxes."
11
sufficiently establishes willfulness.7 Turnbull v. United States,
929 F.2d 173, 179 (5th Cir. 1991); Howard, 711 F.2d at 735
("[E]vidence that the responsible person had knowledge of payments
to other creditors after he was aware of the failure to pay
withholding tax is sufficient for summary judgment on the question
of willfulness."); see Williams, 931 F.2d at 810.
Regarding the third issue, the amount of the proof of claim,
Snyder argues that the Service erroneously refused to deduct from
his employment (FICA) tax liability a $49,000 "voluntary payment"
he made in June 1986. This amount, however, was collected by levy
from one of Phoenix's creditors, and as such it constitutes an
involuntary payment. Interfirst Bank Dallas, N.A. v. United
States, 769 F.2d 299, 305 (5th Cir. 1985), cert. denied, 106 S.Ct.
1458 (1986). A taxpayer is simply not free to designate the
application of an involuntary credit. See Lindon v. United States,
448 F.2d 509, 513 (5th Cir. 1971), cert. denied, 92 S.Ct. 1769
(1972). Snyder nevertheless argues that the money should be
treated as a voluntary payment because, allegedly, the Service
attempted to "refund" this money but did not because he "told the
Service to keep the check" as a credit for his liability for some
of Phoenix's unpaid employment taxes. Although Snyder suggests
that this money would otherwise have gone to him or Phoenix, it is
clear that the reason the Service was considering releasing the
funds was to satisfy certain lien creditors. Snyder told the

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8 Snyder also contends that the proof of claim is excessive
because it includes amounts over that claimed as delinquent in
Phoenix's Chapter 7 bankruptcy proceedings. In the bankruptcy
court, the Service explained that the amount claimed here is
larger because the proof of claim submitted in Phoenix's
bankruptcy proceedings did not include delinquent employment
taxes for the years 1981 and 1982. These amounts were not
included because the tax returns for those years had not been
filed as of the date of Phoenix's bankruptcy petition. The only
summary judgment evidence in the record supports the Service, and
Snyder has produced no evidence to the contrary.
12
Service to keep the $49,000 only because he learned that the bank,
because of its alleged superior security interest, would not allow
the money to go to these claimants. None of this money thus
belonged to him as a "refund," and he had no right to take it back
or otherwise to direct its flow. Snyder cannot voluntarily pay
what is not his to give. Because this amount was not voluntarily
paid to the Service, Snyder had no right to choose how it would be
applied to his tax liabilities.8
Conclusion
For the foregoing reasons, we affirm the judgment of the
district court affirming the bankruptcy court's denial of Snyder's
motion for reconsideration.
AFFIRMED

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