Consumer Bankruptcy Journal Fall 2016 - Page 17

FEDERAL AND STATE TAX DISCHARGE tax return for 1987 because Mo.Ann. Stat. § 143.601 states only that a taxpayer must “report” the change in federal income, and that a “report” does not constitute a requirement to file an amended return. Similar ruling, In re Olson.12 The most recent case addressing the issue is the chapter 7 case In re Berry,13 a 2016 Massachusetts opinion, took the opposite position. In Berry, the state required the debtor to file what it termed an “amended return” following an IRS assessment. The debtor failed to file the required document. Massachusetts argued, and the court agreed, that the requirement to file an “amended return” constituted a failure to file a required return or “equivalent report or notice…”14 The court said, citing precedent15: “ … Congress amended the text of § 523(a)(1)(B) to add further exceptions from discharge for a tax with respect to which an “equivalent report or notice … was not filed or given.” (emphasis added) “Under Massachusetts law the debtor must report changes in federal taxable income in the manner prescribed …” The opinion goes on to cite text from the Massachusetts statutes identifying the kind of document that must be filed, namely, Mass. Form CA-6. The author looked up CA-6 and it appears to require that it be signed “under penalty of perjury.”16 What is a “return”? In order to determine whether a document is an equivalent report or notice, it is first necessary to define what a return is, then address what an equivalent is. 1) What is a “return?”17 a. Does it have to satisfy the 4-prong Beard18 test? b. Does it satisfy the McCoy rule (in circuits following McCoy19)? c. Straddling; Under either McCoy or Beard.20 d. Is it a “written stipulation”?21 2) Was there an IRS audit that assessed additional taxes? 3) Is there a document required to be filed with the state to report it? 4) Is the document in question “required” to be filed? 5) Is the required document a “return” or the “equivalent” of a “return”? 6) In what respects would it not amount to the “equivalent” of a return? 7) Was it filed or given? There will be three situations where all of these questions should be answered: 1) Filed. A return or equivalent was required to be filed and the debtor argues that he did file the required return or “equivalent.” 2) Not required to be Filed. The document he filed was not a return or equivalent, because a return or the equivalent was not required to be filed. 3) Required, but need not be equivalent. The document he filed was not a return or equivalent, because the document that was required is not a return or equivalent. The question, what is an “equivalent National Association of Consumer Bankruptcy Attorneys Fall 2016 report or return,” is unanswered The cases addressing the “equivalent” issue in connection with state piggyback taxes do not adequately explain why or in what respect a required document may be deemed the equivalent of a return. None of the 14 cases I’ve found have addressed that issue, or addressed it but only in passing. The challenge appears to be, what features of a required document make it the equivalent of a return? Complicating this situation and lurking in the background is the McCoy rule; if the state required equivalent of a return is late-filed, does that render it not a valid “equivalent” and hence not a valid return? Trap for the unwary – overlooking the piggy-back taxes The mistake often made comes before any of those questions must be dealt with. The most frequent mistake is for the attorney to address the client’s IRS taxes and original state taxes, but overlook the question, was there an IRS audit that increased the federal tax liability, and thus possibly a piggy-back tax problem, and was it reported to the state? If the document is 1) not required, or 2) is required but is not the equivalent of a return, the only one of the five rules that would appear to apply would be the 240-day rule for assessment.22 The debtor could in theory, file it and wait 240 days following the state assessment before filing bankruptcy (that is, assuming there is no McCoy issue). However, if the state requires an amended return or something that is the equivalent of a return, then arguably it gives rise to the requirements of § 523(a)(1)(B)(ii) (must be filed more than 2 years before the bankruptcy is filed), or § 507(a)(8)(A)(i) (due date must be over three years old).23 CONSUMER BANKRUPTCY JOURNAL 17