First Circuit Holds IRS Collection Efforts Did Not Violate Discharge Injunction

Nina M. Parker, Esq., and Kate E. Nicholson, Esq., on brief for Appellee.

The United States of America, Internal Revenue Service (the "IRS") appeals from: (1) a bankruptcy court order granting the debtor's Motion for Determination of a Violation of the Discharge Injunction and Request for Protective Order (the "Determination Motion"); and (2) the bankruptcy court's denial of reconsideration. For the reasons discussed below, we REVERSE the Determination Motion and deem waived the appeal of the order denying reconsideration.

In May 2007, the debtor filed and served her initial chapter 13 plan, which provided for payment in full of the allowed priority tax claim of the IRS over the course of the 60-month life of the plan. The debtor subsequently filed and served a First Amended Plan (the "Amended Plan"), which, like its predecessor, provided for the payment in full of allowed priority tax claims. The Amended Plan provided for no distributions to allowed non-priority unsecured claims.

Absent objection, the court confirmed the Amended Plan in September 2008. Thereafter, the debtor made all of the payments required under the Amended Plan, and in May 2012, she filed a motion for the entry of her discharge. After receiving the trustee's final report, the bankruptcy court entered the discharge order, also without objection. The discharge order provided that "all allowed claims have been fully paid in accordance with the provisions of the confirmed plan." The explanation page appended to the discharge order further provided: (1) "the debtor ha[d] completed all payments under the chapter 13 plan"; (2) the "chapter 13 discharge order eliminate[d] a debtor's legal obligation to pay a debt that is discharged"; and (3) "[d]ebts for certain taxes to the extent not paid in full under the plan" were not discharged.

Following the entry of the discharge order, the IRS sent four Notices of Intent to Levy to the debtor. In the first notice, the IRS indicated that the debtor owed "interest charges" of $5,332.05 for the tax year ending June 30, 2003. In the second notice, the IRS indicated that the debtor owed interest charges of $3,697.31 for the tax year ending December 31, 2003. The third notice reflected interest charges of $2,302.69 due for the tax year ending September 30, 2004. The last notice reflected interest charges of $6,026.03 for the tax year ending December 31, 2004. In each notice, the IRS warned:

The debtor therefore filed the "Determination Motion, in which she asked the court for an immediate determination as to whether the IRS's actions constituted a willful violation of the discharge injunction under § 524, and an order halting the threatened seizure action. In support, the debtor asserted: (1) she timely payed the IRS the full sum set forth in the amended proof of claim in accordance with the terms of the Amended Plan; (2) the IRS never objected to her motion for entry of discharge or to the Amended Plan; (3) the IRS's claim fell within the scope of her discharge; and (4) United Student Aid Funds, Inc. v. Espinosa, 599 U.S. 260 (2010) overruled Cousins.

The bankruptcy court conducted a hearing on the Determination Motion in October 2012. The debtor argued during the hearing that: (1) the "IRS received notice" (presumably of the pendency of confirmation proceedings); (2) the IRS's amended proof of claim "did not indicate that they were going to be asserting any interest after the fact and there's nothing in the Code per se that says that . . . this claim is entitled to interest"; and (3) the IRS did not appeal the confirmation order. Relying on Espinosa, the debtor asserted that the IRS was bound by the confirmation order. She added: "We are not seeking a discharge of the debt. We paid the debt."

The IRS countered that the rule under Cousins, which remains good law after Espinosa, is that "post-petition accruals . . . remain nondischargeable." The IRS distinguished the instant case from Espinosa, by arguing that in Espinosa, "the plan specifically provided that the student loan debt would be discharged," while there was "no such provision here in the plan." Lastly, the IRS asserted that the discharge order specifically noted that "there [were] taxes that [were] nondischargeable."

The bankruptcy court granted the Determination Motion, ruling from the bench as follows:

Relying on Bruning v. United States, 376 U.S. 358 (1964), and Cousins, the IRS maintains on appeal that the bankruptcy court "was not at liberty to substitute its own conceptions of 'common sense,' and 'basic fairness,' for a statutory exception to discharge." Second, the IRS argues that Official Form 10, prescribed for proofs of claim, does not permit the inclusion of post-petition interest as part of its claim against the estate, and that such claims are instead properly asserted as a personal liability of the debtor. Third, the IRS contends that it could not have demanded post-petition interest through the Amended Plan, because a chapter 13 plan provides only for allowed claims, and allowed claims cannot include unmatured interest. According to the IRS, claims for such interest are, themselves, nondischargeable. Lastly, the IRS argues that the Determination Motion was procedurally improper.

Continuing to rely on Espinosa, the debtor counters: (1) confirmation of the Amended Plan bound the IRS to the amount provided for in the plan; (2) the IRS failed during the five-year pendency of her Amended Plan to provide notice of its claim for post-petition interest; and (3) the drafters of the Code could not have intended the absence of a space for entering the interest rate on the proof of claim form to amount to a "'gotcha' clause."

While the debtor and the IRS focused much of their arguments on the application of Espinosa to the circumstances of this case, the matter turns on the type of tax debt at issue, and the statutory provisions providing for discharges in chapter 13 proceedings.

Thus, based on § 502, courts have held that "creditors are not entitled to include unmatured (or 'post-petition') interest as part of their claims in the bankruptcy proceedings." Leeper v. Pa. Higher Educ. Assistance Agency, (PHEAA), 49 F.3d 98, 100-101 (3d Cir. 1995) (citing 11 U.S.C. § 502(b); Sexton v. Dreyfus, 219 U.S. 339, 344 (1911));³see also Educ. Credit Mgmt. Corp. v. Kirkland (In re Kirkland), 600 F.3d 310, 317 (4th Cir. 2010) (stating § 502(b)(2) prohibits post-petition interest from being included in a proof of claim filed by student loan creditor against the bankruptcy estate). "This longstanding rule is designed to assure that no creditor gains an advantage or suffers a loss due to the delays inherent in liquidation and distribution of the estate." Leeper, 49 F.3d at 101 (citing Am. Iron & Steel Mfg. Co. v. Seaboard Air Line Ry., 233 U.S. 261, 266 (1914); Hanna v. United States (In re Hanna), 872 F.2d 829, 830-31 (8th Cir. 1989)).

Section 1322(a)(2) requires that a plan "provide for the full payment, in deferred cash payments, of all claims entitled to priority under [ § ] 507 of this title, unless the holder of a particular claim agrees to a different treatment of such claim." Relevant to this case, § 507(a)(8) grants priority status to many tax claims.⁴ Accordingly, a chapter 13 plan must provide for the payment of priority tax claims in the full amount of the allowed claim, without post-petition interest, in order to comply with the requirements of the Code and satisfy the confirmation standard in § 1325(a)(1).

The overwhelming majority of chapter 13 plans do not provide for post-petition interest on unsecured claims for two reasons. First, a chapter 13 plan can only provide for allowed claims. As discussed above, § 502(b)(2) prohibits a claim from including unmatured interest. Thus, an allowed unsecured claim does not include unmatured post-petition interest, and the chapter 13 plan may not provide for payments outside of the allowed claim. Second, § 1322(b)(10) provides the lone exception in which a plan may provide for the payment of interest accruing after the petition date on unsecured claims. Section 1322(b)(10) allows for the payment of post-petition interest "on unsecured claims that are nondischargeable under section 1328(a)," only when "the debtor has disposable income available to pay such interest after making provision for full payment of all allowed claims." See In re Edmonds, 444 B.R. 898, 902 (Bankr. E.D. Wis. 2010) ("[P]ost-petition interest cannot be paid unless the plan provides that all of the unsecured creditors will be fully paid. Sec[tion]. 1322(b)(10) is very clear in its wording."). In other words, a debtor can provide for the payment of post-petition interest on nondischargeable claims only if the debtor proposes a "100% plan," and only if the debtor has excess disposable income with which to do so. Such situations are rare.

In the typical chapter 13 case with priority tax claims, a debtor has priority tax claims under § 507(a)(8) for unpaid income taxes due for recent tax years. See 11 U.S.C. § 507(a)(8)(A). To be confirmable, the chapter 13 plan would have to pay those claims in full over the life of the plan. 11 U.S.C. § 1322(a)(2). As discussed above, the chapter 13 plan would not -- and generally could not -- pay post-petition interest to the extent it accrued on those claims. However, upon the completion of all payments under the plan and the issuance of a discharge, the entire priority tax claim is discharged, because such debt was "provided for by the plan." See 11 U.S.C. § 1328(a). Thus, successful completion of a chapter 13 plan allows for the discharge of priority tax debts that are generally nondischargeable outside of chapter 13 under § 523(a)(1)(A) (as it excepts all tax debts under § 507(a)(8) from discharge).

When the priority tax claim arises under § 507(a)(8)(C), the result is different because such tax claims are an exception to the general rule under § 1328. The debtor must still pay such claim in full without post-petition interest⁵ (to the extent it accrues) if the chapter 13 plan is to be confirmed. However, because the claim is specifically excepted from discharge under § 1328(a)(2), the debtor remains liable for any unpaid portion of the claim, including any interest that accrues on the claim post-petition. See Tashjian v. Internal Revenue Serv., 325 B.R. 56, 59 (D. Mass. 2005); In re Sprolito, 359 B.R. 423, 428 (Bankr. D.P.R. 2006). This is similar to the result in a case where a debtor is not eligible for a discharge, or where the case is dismissed prior to the completion of plan payments and the issuance of a discharge. In every instance, the debtor is able to enjoy the protection of the automatic stay and pay the debts over time. However, upon completion of the plan without a discharge, or dismissal, the debtor remains liable for any unpaid amounts of the § 507(a)(8) priority tax claim, as well as any interest that accrued on the claim post-petition. See Tashjian, 325 B.R. at 59; Sprolito, 359 B.R. at 428. Note that in the absence of a completed plan and discharge, the debtor remains liable for all priority tax claims, to the extent they were not paid during the case, not just § 507(a)(8)(C) claims.

Pursuant to § 524, a discharge under chapter 13 "operates as an injunction against the commencement or continuation of an action, the employment of process, or an act, to collect, recover or offset any [discharged] debt as a personal liability of the debtor. . . ." 11 U.S.C. § 524(a)(2). "Significantly, the discharge injunction prohibits collection only with respect to dischargeable debts and does not apply to nondischargeable debts." State of Fla. Dep't of Revenue v. Diaz (In re Diaz), 647 F.3d 1073, 1088 (11th Cir. 2011) (citation and internal quotations omitted). Consequently, courts have held that "once a discharge has been granted, holders of nondischargeable debts generally may attempt to collect from the debtor personally for such debts." Id. (citation omitted) (emphasis in original).

The vast majority of courts, including the First Circuit, extend the application of Bruning to cases arising under the Code, to nondischargeable debts other than tax obligations, and to cases other than liquidation cases. See, e.g., In re Cousins, 209 F.3d at 40 (holding post-petition interest on nondischargeable tax debt remains nondischargeable in chapter 12 under the Code); see also Diaz, 647 F.3d at 1090 (holding post-petition interest on child support obligation is nondischargeable in chapter 13); Salazar v. Comm'r Internal Revenue, 338 Fed. Appx. 75, 78 (2d Cir. 2009) (holding debtors "would have remained liable on their non-dischargeable liability -- including interest -- even had the IRS not filed a proof of claim in their bankruptcy proceeding"); Foster v. Bradbury (In re Foster), 319 F.3d 495, 497 (9th Cir. 2003) (holding post-petition interest on child support obligation is nondischargeable and may be collected personally against the debtor); Kielisch v. Educ. Credit Mgmt. Corp. (In re Kielisch), 258 F.3d 315 (4th Cir. 2001) (holding plan payments may be applied to post-petition interest on nondischargeable student loans); Leeper, 49 F.3d at 103-104 (holding Bruning applies to chapter 13 bankruptcies and to student loans in particular); Burns v. United States (In re Burns), 887 F.2d 1541, 1543 (11th Cir. 1989) (stating Bruning survived the enactment of the Code); In re Hanna, 872 F.2d at 830-31 (ruling same). As the Fifth Circuit explained, when it concluded that the Bruning rule remained good law after the enactment of the Code:

Notwithstanding Bruning and Cousins, § 1328(a) discharges post-petition interest on tax claims that can be discharged through the completion of a chapter 13 plan and the issuance of a chapter 13 discharge. Similar treatment for some tax claims is not available under chapter 12. Compare 11 U.S.C. § 1328(a) (allowing for the discharge of certain priority tax claims) with § 1228(a) (incorporating § 523(a) in its entirety, making all priority taxes under § 507(a)(8) nondischargeable).

Three years following the entry of the discharge order, the United States Department of Education (the "Department") commenced efforts to collect the unpaid interest on the debtor's student loans. Id. at 266. The debtor then asked the bankruptcy court to enforce the discharge order by directing the creditor and the Department to cease all collection efforts. Id. The creditor responded with a motion to vacate the confirmation order as void, on the grounds that: (1) there was no finding of undue hardship, which is a prerequisite to the discharge of a student loan debt; and (2) it was denied due process because the confirmation order was issued without service of a summons and complaint as required by the Code as a prerequisite to an adversary proceeding. Id.

The Supreme Court stated that "a proposed bankruptcy plan becomes effective upon confirmation . . . and will result in a discharge of the debts listed in the plan if the debtor completes the payments the plan requires. . . ." Id. at 264 (citations omitted). The Court held, "[w]here, as here, a party is notified of a plan's contents and fails to object to confirmation of the plan before the time for appeal expires, that party has been afforded a full and fair opportunity to litigate. . . ." Id. at 276. Thus, the Court further held that the terms of a confirmed plan bound a creditor who did not object to confirmation even though the treatment of the creditor's claim in the plan violated the Code. Id. at 275-76.

Courts have held that Espinosa stands for the "limited proposition that a confirmed plan is binding on all parties-in-interest, provided the plan proponent afforded such parties adequate notice, consistent with the Due Process Clause of the United States Constitution-even if the plan violates the Bankruptcy Code in some particulars." In re Deavila, 431 B.R. 178, 179 (Bankr. W.D. Mich. 2010) (emphasis added); see also In re Brodeur, 434 B.R. 348, 351 n.2 (Bankr. D. Vt. 2010) (noting that Espinosa "defines the binding effect of confirmation orders on interested parties who receive sufficient notice") (emphasis added). After Espinosa, a "creditor or other party in interest who chooses to sleep on its rights by not objecting to a plan does so at its own peril and as long as due process requirements are met, will be bound by it." In re McLemore, 426 B.R. 728, 744 (Bankr. S.D. Ohio 2010) (citation omitted) (emphasis added).

In this case, the IRS does not dispute that it received notice of the filing of the Amended Plan. However, unlike Espinosa, the confirmed plan in this case did not provide for the discharge of the priority tax claim upon completion of the plan. Espinosa instructs that "[d]ue process requires notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections." Espinosa, 599 U.S. at 272 (internal quotations and citations omitted). We previously stated in the context of plan confirmation, this means a "clear, open, and explicit statement of a secured creditor's treatment in a chapter 13 plan before the creditor's failure to object will be deemed implied acceptance." Flynn v. Bankowski (In re Flynn), 402 B.R. 437, 444 (B.A.P. 1st Cir. 2009) (citations omitted); see also In re Rheaume, 296 B.R. 313, 321 (Bankr. D. Vt. 2003) (citations omitted) (stating while creditors are obligated to read plans and timely assert objections, "relief being sought must be articulated clearly and, particularly if it is unusual relief, conspicuously set forth in the text").

Based on the foregoing, we REVERSE the order granting the Determination Motion.

² Section 6672 of the Internal Revenue Code provides, in pertinent part:

³ Although courts recognize limited exceptions to the general prohibition on the payment of post-petition interest from the estate, see Willauer v. United States Internal Revenue Serv. (In re Willauer), 192 B.R. 796, 801 (Bankr. D. Mass. 1996) (citation omitted), those exceptions are inapplicable here.

⁴ Section 523(a)(1)(A) provides the general rule that priority claims under § 507(a)(8) are nondischargeable. This is why the chapter 7 discharge does not discharge a debtor of liability on priority tax claims.

⁵ This is so unless the debtor fits within the narrow exception of § 1322(b)(10).

⁶ Section 17 of the Bankruptcy Act provided, in relevant part, that a "discharge in bankruptcy shall release a bankrupt from all of his provable debts, whether allowable in full or in part, except such as (1) are due as a tax levied by the United States. . . ." Bruning, 376 U.S. at 360.