APPEAL OF IRS CLAIM IN BANKRUPTCY CASE DISMISSED.

[1] The events giving rise to this bankruptcy appeal stem from the Chapter 13 proceedings brought by Appellants, Charles and Connie Daniels ("the Daniels"), on November 12, 1997. (Dkt. Entry 6, p. 2.) On or about March 27, 1998, the Internal Revenue Service ("IRS") timely filed a proof of claim in the amount of $138,952.81, which consisted of a secured claim in the amount of $98,952.81 and an unsecured priority claim in the amount of $40,000. (Id.) The secured portion of the IRS claim reflects additional federal income tax assessments for the tax years 1989 and 1990 made after an examination of the Form 1040 federal income tax returns the debtors filed for these years. (Id.) The unsecured general portion of the IRS proof of claim reflects estimated liabilities for federal income taxes due for the tax years 1993 up through 1996. (Id.) The IRS estimated the taxes due because the debtors failed to file individual income tax returns for these years. (Id.)

[2] On March 9, 1998 and April 2, 1998 respectively, the Chapter 13 Trustee and the United States timely objected to the Daniels' plan on various grounds. (Id., p. 3.) Most notably, the objections were based on the Daniels' failure to provide for the payment of the IRS priority claims. (Id.) The United States subsequently filed a motion to compel the Daniels to file tax returns for the years estimated on the IRS proof of claim. (Id.) On July 23, 1998, the Daniels filed an objection to the IRS claim, alleging that the claim was an "illegal encroachment of the Constitutional mandate of Article I, Section 8, Clause 17 and also beyond the scope of their own law Title 26 of the United States Code." (Id.)

[3] On April 19, 1999, the Bankruptcy Court denied the United States' motion to compel Daniels to file their tax returns. (Id.) Following the Bankruptcy Court's April 19, 1999 order, the United States initialed discovery regarding the Daniels' objection to the IRS claim. (Id.) At their depositions on July 27, 1999, the Daniels refused to answer any questions concerning their income for the tax years 1993 through 1996. (Id.) On August 3, 1999, the United States filed a motion to dismiss Daniels' bankruptcy case, or, in the alternative, to dismiss Daniels' objection to the claim of the IRS. (Id.) On April 6, 2001, the Bankruptcy Court granted the United States' motion and dismissed the Daniels' bankruptcy case pursuant to 11 U.S.C. § 1307(c)(1). (Id.)

[4] On May 4, 2001, the Daniels filed a "Notice of Appeal" from the Bankruptcy Court's April 6, 2001 Order and a "Request for Stay on Appeal." On May 14, 2001, the Daniels filed in the Bankruptcy Court their "Request of Debtors for Relief from Failure to File Timely Notice of Appeal," in which the Daniels conceded their "mistake and inadvertence in the filing of the notice of appeal." On May 18, 2001, following a telephone conference, the Bankruptcy Court denied the Daniels' request for an extension to file their appeal late and their request for a stay on appeal.

[5] On May 29, 2001, the Daniels filed a Notice of Appeal "from the Bankruptcy Court's orders denying Debtors' leave to expand time to file their notices of appeal, and denial of Debtor's request for stay pending Appeal." (Id.) Also on May 29, 2001, the Daniels filed a "Request for Stay on Appeal" and "Request for Time to File Notice of Appeal." (Id.) The Bankruptcy Court did not rule on the Daniels' request for additional time to file their notice of appeal of the court's May 18, 2001 orders. (Id.) The instant bankruptcy appeal was docketed in this Court on July 12, 2001. (Dkt. Entry 1.) On July 20, 2001, the United States moved to dismiss the matter based on the untimely filing of the underlying notice of appeal. (Dkt. Entry 3.) The issue before the Court is whether the Bankruptcy Court properly determined that Appellants' notice of appeal was untimely pursuant to the requirements of Rule 8002 of the Federal Rules of Bankruptcy Procedure.

DISCUSSION

[6] Rule 8002(a) of the Federal Rules of Bankruptcy Procedure, in pertinent part, states, "[t]he 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." The ten day limitations period is calculated according to the provisions of Rule 9006(a) of the F.R.B.P., which states:

[7] According to Rule 8002(c)(2), postponement of the ten day deadline is allowed in two specific situations:

(c) Extension of time for appeal

[8] As pointed out in In re Universal Minerals, Inc., 755 F.2d 309 (3d Cir. 1985), "failure to file timely notice within the meaning of Bankruptcy Rule 8002 is indeed a jurisdictional defect barring appellate review." Id. at 310. In Universal Minerals, the appellant had filed the notice of appeal 14 days after the entry of the rescission order, and the court noted that:

[9] It is clear that the Daniels' notice of appeal was untimely. It is also clear that the Bankruptcy Court correctly found that the request to extend the time to appeal was itself untimely. Therefore, the motion to dismiss this appeal must be granted. An appropriate Order follows.

1. The Motion to Dismiss the Bankruptcy Appeal (Dkt. Entry 3) is GRANTED.

2. The Clerk of Court is directed to mark this matter CLOSED.