Shorton v. Commonwealth of Massachusetts

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UNITED STATES BANKRUPTCY COURT
FOR THE
DISTRICT OF MASSACHUSETTS
~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~
In re
JOHN B. SHORTON, Chapter 7
Debtor Case No. 06-11123-JNF
~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~
JOHN B. SHORTON,
Plaintiff
v. Adv. P. No. 07-1148
COMMONWEALTH OF MASSACHUSETTS,
Defendant
~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~
MEMORANDUM
I. INTRODUCTION
The matter before the Court is the “Motion by Defendant Massachusetts Department
of Revenue for Summary Judgment.” The Debtor, John B. Shorton (the “Debtor”), filed an
Response in opposition to the Motion. The Court heard the Motion and the Response on
July 31, 2007 and took the matter under advisement. The issue presented is whether, for
the purposes of the exception to discharge under 11 U.S.C. § 523(a)(1)(B), the Debtor
provided the Massachusetts Department of Revenue (“MDOR”) with “a return, or
equivalent report or notice” when the Internal Revenue Service notified him that it had
issued a final determination of deficiency assessment for additional income tax due for the
1995 and 1996 tax years.
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II. FACTS
The Debtor filed a Chapter 7 petition on April 25, 2006. On Schedule F-Creditors
Holding Unsecured Nonpriority Claims, he listed the Internal Revenue Service as a holder
of a claim in the amount of $491,262 for the period between 1995 and 1999 inclusive, and
the MDOR with a claim in the amount of $725 for the 1995 tax year, as well as a claim in
the sum of $23,100 for the 1996 tax year, and a claim in the sum of $41,653 for the period
between 1995 and 1999 inclusive, for a total of $65,478.
On May 26, 2006, the Chapter 7 Trustee filed a Report of No Distribution.
Approximately four months later, on October 2, 2006, the Court granted the Debtor a
discharge with respect to all dischargeable debts. On April 6, 2007, the Debtor commenced
the above-captioned adversary proceeding against the MDOR, captioned “Complaint to
Confirm Discharge of Unsecured Debt.” Through his Complaint, the Debtor sought a
declaration that a debt that arose out of a reassessment of his tax obligations for the 1995
and 1996 tax years was not entitled to priority by operation of 11 U.S.C. § 507(a)(8)(A). The
MDOR filed an Answer to the Debtor’s Complaint in which it admitted that the Debtor had
listed it as the holder of an unsecured claim in the total amount of $65,478; that the Debtor’s
taxes for the periods ending on December 31, 1995 and December 31, 1996 had been
increased because of increases in the Debtor’s federal income taxes; that notices of
reassessment were given to the Debtor on November 22, 2004; that an official reassessment
was made in February of 2004; and that more than 241 days had passed since the official
reassessment and the filing of the Debtor’s Chapter 7 petition.
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Although the MDOR raised an issue as to the sufficiency of service of process as an
affirmative defense, in its Motion for Summary Judgment it sought a determination that
the Debtor’s obligations to it, while admittedly not entitled to priority under § 507(a)(8),
nonetheless were nondischargeable under § 523(a)(1)(B)(i). It conceded that the Debtor
timely filed his 1995 and 1996 Massachusetts income tax returns, but it maintained that in
2004 the Internal Revenue Service (“IRS”) notified the Debtor “that it had issued a final
determination of deficiency assessment for additional income tax due for the years 1995
and 1996” and that in that same year the IRS notified it through the Federal Exchange
Program of the federal deficiency assessment. It further maintained that the Debtor did not
file any amended returns for the years 1995 and 1996. The MDOR added that on
November 22, 2004 it sent the Debtor Notices of Intent to Assess in the amount of $9,200.53
for the 1995 tax year and in the amount of $20,233.59 for the 1996 tax year; that on February
9, 2005 it sent the Debtor a Notice of Assessment in the amount of $9,340.20 for the 1995 tax
year; and that on February 24, 2005 it sent the Debtor a Notice of Assessment in the amount
of $20,547.77 for the 1996 tax year. It concluded that the Debtor failed to file any amended
returns and, thus, owed it the nondischargeable sum of $30,741.13, including tax and
statutory interest due and payable as of April 25, 2006.
The MDOR supported its Motion with the Affidavit of Stephen Kobialka, a “Tax
Examiner VII,” whom it employed. Mr. Kobialka stated that he had reviewed the books
and records maintained by the MDOR in the ordinary course of its business for the
purposes of attesting to the facts in the Answer and the Motion for Summary Judgment.
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The Debtor stated in response to a question about the approval of the offer in1
compromise: “No, they [the IRS] went on and on and on. They said I wasn’t working at
the time, and then they gave me some astronomical amount . . . - - which I couldn’t - -
which I could no way could I do.”
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He specifically stated that the Debtor had not filed amended tax returns for 1995 and 1996
with the Commonwealth.
The Debtor filed an Response to the MDOR’s Motion for Summary Judgment, as
well as an Affidavit. In his Affidavit, he represented that approximately seven years after
he filed his federal tax returns for the 1995 and 1996 tax years he was audited by the IRS.
He also indicated that “[d]ue to the time that had expires [sic] since timely filing and the
audit I no longer had the supporting documentation to prove that the income was
accurate.” He further represented that in several meetings with the IRS he refused to file
returns which he believed would be inaccurate. Nevertheless, according to the Debtor
Just prior to trial, after a conference with trial attorney [sic], a compromise
settlement was reluctantly reached.
It was also agreed that I would make an offer in compromise to reduce the
tax burden and that if possible favorable treatment would be accorded.
At the conference the proposed assessed tax, after discussion was reduced by
$10,000. I wanted a further reduction.
It was also stipulated that the I.R.S. would advise the state should an
assessment be made that I deny owing additional taxes and that a
compromise settlement was reached.
During the July 31, 2007 hearing, the Debtor represented that the proposed offer in
compromise had been rejected by the IRS.1
With respect to his communications with the MDOR, the Debtor indicated that he
“wrote a letter addressed to the Tax Department at the Commonwealth of Massachusetts
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which I had delivered, advising of the compromise settlement ahs [sic] I did not receive the
additional income.” The Debtor stated that the MDOR would not act or discuss the issues
with him because it had not received any communications from the IRS. The Debtor also
indicated that when he received the first Notice of Assessment from the MDOR he again
“appeared at their [sic] offices and stated the facts that I no longer had, after 9 years and
[sic] supporting documentation to back up my assertion that the taxes I had previously
written/discussed were not accurate.” The Debtor said that he received another Notice of
Assessment and “again inquired/discussed the issues” with the MDOR. He stated that “I
was again advised that there was nothing further I could do to stop the assessment,”
adding “I did not and could not file an amended return that would be accurate as I no
longer due to the time lapse have access to the supporting documentation needed to
confirm that the return was accurate” . . . [and] . . . “would not file and sign under the pains
and penalties [sic] a return I knew was not accurate.” The Debtor concluded that, in his
view, he had “satisfied the reporting requirement in writing, via telephone and in person.”
Moreover, he averred that he was unable to find Form 33X, captioned “Massachusetts
Amended Individual Income Tax Return,” a form referenced by Judge Hillman in an
unpublished opinion. See Eisner v. Internal Revenue Service and Massachusetts
Department of Revenue (In re Eisner), No. 95-1417 (Bankr. D. Mass. Nov. 20, 1996).
III. DISCUSSION
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A. Applicable Law
Section 523(a)(1)(B) of the Bankruptcy Code provides in relevant part the following:
(a) A discharge under section 727, 1141, 1228(a), 1228(b), or 1328(b) of this
title does not discharge an individual debtor from any debt–
(1) for a tax or a customs duty–
(A) of the kind and for the periods specified in
section 507(a)(3) or 507(a)(8) of this title, whether
or not a claim for such tax was filed or allowed;
(B) with respect to which a return, or equivalent
report or notice, if required--
(i) was not filed or given; or
(ii) was filed or given after the date
on which such return, report, or
notice was last due, under
applicable law or under any
extension, and after two years
before the date of the filing of the
petition; . . . .
11 U.S.C. § 523(a)(1)(B)(ii)(emphasis supplied). The issue in this case is whether the
Debtor’s assertion that he notified the MDOR of his dispute with the IRS satisfied the
requirement that he file or give the MDOR a return or equivalent report or notice following
the decision of the IRS to change the amount of his tax liability for the tax years 1995 and
1996. Notably, the Bankruptcy Code does not require payment of the additional tax - - the
filing of a return or equivalent report or notice is all that is required for purposes of the
dischargeability of the debt. Massachusetts law, on the other hand, requires both the
submission of a report or return and the payment of the tax. It provides in relevant part:
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The statute was amended effective December 8, 2005. The amended statute2
applies to final determinations made after December 8, 2005.
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If the federal taxable income of a person subject to taxation under chapter
sixty-two is finally determined by the federal government to be different
from the taxable income as originally reported, such final determination shall
be reported, accompanied by payment of any additional tax due with interest as
provided in section thirty-two, to the commissioner within one year of
receipt of notice of such final determination.
Mass. Gen. Laws ch. 62C, § 30 (emphasis supplied). Pursuant to the Code of2
Massachusetts Regulations,
A taxpayer subject to taxation under M.G.L. c. 62 must report to the
Commissioner any change in federal taxable income or federal tax credits
resulting in increased Massachusetts tax liability within one year of the date
of notice of the federal government’s final determination, whether or not the
audit or other review is complete with respect to issues not addressed in the
agreement, accompanied by payment of any additional tax due plus interest.
Interest is calculated under the provisions of M.G.L. c. 62C, § 32, from the
due date of the original return. Offsets do not affect the determination
whether Massachusetts tax liability has increased due to a federal change.
Taxpayers subject to taxation under M.G.L. c. 62 must report changes in
federal taxable income in the manner prescribed by the Commissioner and
must submit a copy of the federal Revenue Agent’s Report, agreement,
document, or any other federal report that provides the necessary
information illustrating the changes in federal taxable income or federal tax
credits. The filing agent for a composite return shall report when there is any
final determination, allocated among the affected taxpayers, that increases
any taxpayer’s Massachusetts tax liability.
830 C.M.R. 62C.30.1(3)(a). This is the current version of the regulation. An earlier version
of the regulation quoted by Judge Hillman in Eisner referenced Form 33X. Finally,
Administrative Procedure 619.2, quoted by the MDOR in its Memorandum, requires that
the changes in federal taxable income or federal tax credits be reported on Form CA-6,
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“Application for Abatement/Amended Return,” together with “[a] copy of the IRS Form
CP-2000 or the IRS Revenue Agent’s Report and any other relevant documentation.”
In Eisner, the debtor unsuccessfully challenged the disallowance of certain
deductions claimed on his federal income tax returns. The IRS sent the MDOR a copy of
its Appeals Transmittal and Settlement Memorandum, which reflected an additional,
agreed upon tax liability. The debtor did not file amended income tax returns for the tax
years for which his deductions were disallowed. The debtor filed a voluntary Chapter 7
petition, and the MDOR subsequently issued a Notice of Assessment. The debtor argued
that Massachusetts law did not require an amended return and a report would suffice. In
his view, the Settlement Memorandum was the functional equivalent of the filing of a
report. The MDOR, on the other hand, contended that the debtor was required to file an
amended return and because the debtor failed to do so his tax liability was not discharged.
Judge Hillman identified the issues as whether an amended return is a return with
in the meaning of § 523(a)(1)(B); whether a return or a report is required by Massachusetts
law and whether the Settlement Memorandum satisfied the requirements of the law. He
determined that an amended return was “a return” within the meaning of §
523(a)(1)(B)(ii)(prior to its amendment by BAPCPA) and that an amended return is
required under Massachusetts law when there is a reportable change in income. Slip. Op.
at 8. Having found that the taxpayer was required to file the appropriate form, he held that
the filing of the Settlement Memorandum by the IRS did not satisfy the Debtor’s obligation.
Id. Citing Blutter v. United States (In re Blutter), 177 B.R. 209, 210 (Bankr. S.D. N.Y. 1995),
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he stated: “I join with Judge Brozman in saying that ‘a debtor cannot evade his obligations
under applicable law by relying on governmental authorities to fulfill them for him. . . .
Section 523(a)(1)(B) is addressed to the conduct of the debtor, and is designed to insure that
a debtor’s misconduct is not rewarded.’” Id.
Courts have adopted a four part test to ascertain whether a document constitutes
a “return.” To qualify as a return, “(1) it must purport to be a return; (2) it must be
executed under penalty of perjury; (3) it must contain sufficient data to allow calculation
of tax; and (4) it must represent an honest and reasonable attempt to satisfy the
requirements of the tax law.” United States v. Hindenlang (In re Hindenlang), 164 F.3d
1029, 1033 (6th Cir. 1999). In Maroney v. United States (In re Maroney), No. 02-1062-A,
2002 WL 31777588 (E.D. Va. Oct. 30, 2002), the court stated:
The Hindenlang test is a re-tooled amalgamation of widely accepted rulings
of both the Supreme Court and the Sixth Circuit defining the term “tax
return” under the Internal Revenue Code. See, e.g., Germantown Trust Co.
v. Commissioner, 309 U.S. 304 (1940); Zellerbach Paper Co. v. Helvering, 293
U.S. 172 (1934); and Beard v. Commissioner, 82 T.C. 766, 1984 WL 15573
(1984) aff’d, 793 F.2d 139 (6th Cir.1986).
Although the Hindenlang decision itself is not universally accepted, its
four-part test is not seriously questioned.
2007 WL 31777588 at * 2. See also United States v. Hatton (In re Hatton), 220 F.3d 1057 (9th
Cir. 2000). This Court applied the four-part test in Mulcahy v. United States (In re
Mulcahy), 260 B.R. 612 (Bankr. D. Mass. 2001).
B. Standard for Summary Judgment
In Desmond v. Varrasso (In re Varrasso), 37 F..3d 760 (1st Cir. 1994), the United
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States Court of Appeals for the First Circuit set forth the applicable summary judgment
standard. It stated:
It is apodictic that summary judgment should be bestowed only when no
genuine issue of material fact exists and the movant has successfully
demonstrated an entitlement to judgment as a matter of law. See Fed.R.Civ.P.
56(c). As to issues on which the movant, at trial, would be obliged to carry
the burden of proof, he initially must proffer materials of evidentiary or
quasi-evidentiary quality-say, affidavits or depositions-that support his
position. See Lopez v. Corporacion Azucarera de Puerto Rico, 938 F.2d 1510,
1517 (1st Cir.1991); Bias v. Advantage Int’l, Inc., 905 F.2d 1558, 1560-61
(D.C.Cir.), cert. denied, 498 U.S. 958, 111 S.Ct. 387, 112 L.Ed.2d 397 (1990); cf.
Mendez v. Banco Popular de Puerto Rico, 900 F.2d 4, 7 (1st Cir.1990) (“The
mere fact that plaintiff failed to file a timely opposition does not mean that
defendant's Rule 56 motion should be granted”). When the summary
judgment record is complete, all reasonable inferences from the facts must
be drawn in the manner most favorable to the nonmovant. See, e.g., Morris
v. Government Dev. Bank, 27 F.3d 746, 748 (1st Cir.1994); Garside, 895 F.2d
at 48; Greenburg v. Puerto Rico Maritime Shipping Auth., 835 F.2d 932, 934
(1st Cir.1987). This means, of course, that summary judgment is
inappropriate if inferences are necessary for the judgment and those
inferences are not mandated by the record. See Blanchard v. Peerless Ins. Co.,
958 F.2d 483, 488 (1st Cir.1992) (warning that summary judgment is
precluded “unless no reasonable trier of fact could draw any other inference
from the ‘totality of the circumstances’ revealed by the undisputed
evidence”).
37 F.3d at 763 (footnote omitted).
C. Analysis
The Debtor has not disputed that he was audited with respect to his 1995 and 1996
federal income tax returns and that his offer in compromise was rejected by the IRS.
Accordingly, the Court finds that the Debtor was required to report a change in income to
the MDOR. The Debtor in his Affidavit set forth his attempts to notify the MDOR about
the status of his federal income tax obligations. Indeed, according to his Schedules, he
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owes the United States almost half a million dollars.
The Debtor did not produce copies of any written correspondence forwarded or
delivered to the MDOR, and he indicated that he could not file amended returns because
he lacked the documents necessary to prepare them properly. Accordingly, the Court finds
that the Debtor did not submit amended returns to the MDOR. Moreover, the Court finds
that the Debtor failed to submit any documents that could purport to be a return or an
equivalent report or notice, let alone a document executed under penalty of perjury.
Additionally, the Debtor failed to produce any document which contained information that
would permit the MDOR to calculate the tax due, although the information it received
from the IRS enabled it to assess the Debtor. Although the Debtor in his Affidavit made
unsubstantiated assertions in an attempt to convince this Court that he had satisfied the
requirement of “a return, or equivalent report or notice,” in the absence of copies of, or
details about, documents submitted to MDOR, the Court finds that the Debtor failed to
satisfy the MDOR’s requirements for filing amended returns or the Bankruptcy Code’s
requirement to file a return or equivalent report or notice. The Debtor failed to submit any
evidence to rebut the Affidavit submitted by the MDOR, which established that he did not
file amended returns or any equivalent report or notice.
For this Court to deny summary judgment, it would have to accept the Debtor’s
assertions that his discussions with the MDOR and the submission of papers to the MDOR,
which the Debtor did not produce and which this Court has not had the opportunity to
review, satisfy the requirement of the state and federal statutes. The Court finds that
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Debtor’s conclusory statements are insufficient to create a genuine issue of material fact
concerning his compliance with the provisions of Massachusetts law.
IV. CONCLUSION
In view of the foregoing, the Court shall enter an order granting the Motion for
Summary Judgment filed by the MDOR.
By the Court,
______________________________
Joan N. Feeney
United States Bankruptcy Judge
Dated: September 6, 2007
cc: John B. Shorton, Celene E. Jackson, Esq.
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