Consumer Bankruptcy Journal Fall 2016 | Page 14

Court Rejects McCoy and Sticks with Beard W hether a post-assessment tax return represents an honest and reasonable attempt to comply with tax laws and is a “return” within the meaning of section 523(a)(*), depends on the taxpayer’s subjective intent and the content of the information provided in the late-filed return. Biggers v. I.R.S., No. 15-41 (M.D. Tenn. Sept. 9, 2016). After Pamela and James Biggers failed to file tax returns for several years, the IRS assessed federal taxes against James. In February, 2007, approximately one year after the IRS performed its final tax assessment, the Biggers filed joint tax returns for the years that had been assessed against James. Their returns showed different tax liability than that which had been determined by the IRS with several years claiming a lower liability and one year claiming higher liability. The Biggers then filed a chapter 7 bankruptcy petition and sought to discharge their tax debts for those years. Relying on United States v. Hindenlang (In re Hindenlang), 164 F.3d 1029 (6th Cir. 1999), the bankruptcy court found that the Biggers’ tax liability was not dischargeable (with the exception of the overage) because their returns showing reduced liability did not serve any purpose and, therefore, did not constitute “returns” within the meaning of section 523(a)(*). The court granted summary judgment in favor of the IRS. In re Biggers, 528 B.R. 870 (Bankr. M.D. Tenn. 2015). Section 523(a)(1)(B)(i) excludes from discharge any debt “with respect to which a return, or equivalent report or notice, if required … was not filed or given.” Under the hanging paragraph of section 523(a), added to the Code in the BAPCPA amendments of 2005, 14 CONSUMER BANKRUPTCY JOURNAL a return “must satisfy the requirements of applicable nonbankruptcy law and be filed in accordance with applicable filing requirements.” On appeal, the district court addressed the split in the circuits as to the effect of the BAPCPA definition of “return” on pre-BAPCPA analysis. The court noted that the First, Fifth and Tenth circuits have adopted the hard line that no latefiled return constitutes a “return,” based on the reasoning set forth in McCoy