Internal Revenue Service v. Cousins (In Re Cousins)

          United States Court of Appeals
                     For the First Circuit

No. 99-1976

 IN RE: WAYNE COUSINS, DBA COUSINS GARDENS; MARY C. COUSINS,

                            Debtors,
                     _____________________

                   INTERNAL REVENUE SERVICE

                     Plaintiff, Appellant,

                              v.

     MARY C. COUSINS; WAYNE COUSINS, DBA COUSINS GARDENS,

                    Defendants, Appellees.
                     _____________________

                      LAWRENCE P. SUMSKI,

                           Trustee.


         APPEAL FROM THE UNITED STATES DISTRICT COURT

               FOR THE DISTRICT OF NEW HAMPSHIRE

     [Hon. Joseph A. DiClerico, Jr., U.S. District Judge]


                            Before

                     Boudin, Circuit Judge,
                 Bownes, Senior Circuit Judge,
                   and Stahl, Circuit Judge.


     Curtis C. Pett, Attorney, with whom Bruce R. Ellisen,
Attorney, and Loretta C. Argrett, Assistant Attorney General,
were on brief for appellant.
     Nancy H. Michels, with whom Michels & Michels, was on brief
for appellees.
                                  April 18, 2000



           STAHL, Circuit Judge.                 The Internal Revenue Service

(“IRS”) appeals a judgment holding that Wayne and Mary Cousins

(“Debtors”),      who     had    filed    for    bankruptcy     protection   under

Chapter 12 of the Bankruptcy Code (“the Code”), were not liable

after   discharge         for    postpetition      interest      on   prepetition,

nondischargeable tax liabilities.                 We reverse.

                                           I.

           On November 14, 1990, Debtors filed a petition for

bankruptcy protection under Chapter 12, which is available only

to farmers.    On March 14, 1991, the IRS filed a Proof of Claim

for $43,194.42 in assessed federal tax liabilities.                         Debtors

then filed with the bankruptcy court a Chapter 12 Plan, which

provided for the payment of the government's unsecured priority

claim, but did not provide for the payment of postpetition

interest on the obligation.              The bankruptcy court confirmed the

initial Plan and Debtors' subsequent First Modified Revised

Chapter 12 Plan.          Each plan required “full payment in deferred

cash    payment      of    all    claims        entitled   to    priority    under

11 U.S.C. § 507 including . . . the debt to the Internal Revenue

Service   in   the      amount    of     $43,194.42.”      The    IRS   raised   no


                                          -2-
objection to the confirmation of either plan, and during the

life   of   the   plan,       the   trustee    paid    the     IRS    $43,195.00    in

satisfaction      of     Debtors'     prepetition      tax        liabilities.      On

January 31, 1997, the bankruptcy court discharged Debtors after

full satisfaction of all plan payments.

            The IRS subsequently demanded a payment from Debtors

of $15,560.11 for interest that had accrued postpetition on the

prepetition tax liability.               In response, Debtors brought an

adversarial proceeding, seeking a determination that they were

not    liable     for       postpetition      interest       on    prepetition     tax

liabilities, fully paid pursuant to their Chapter 12 plan.

            The bankruptcy court held that a Chapter 12 debtor is

discharged        from       personal      postdischarge             liability     for

postpetition interest on a nondischargeable tax debt because

this   interest        is    not    assertable    as     a    claim     against    the

bankruptcy estate under 11 U.S.C. § 1222.                    The IRS appealed, and

the district court affirmed.             Once again, the IRS appeals.

            We review de novo the legal question presented by this

appeal.     See Prebor v. Collins (In re I Don't Trust), 143 F.3d

1, 3 (1st Cir. 1998);               Thinking Machs. Corp. v.            Mellon Fin.

Servs. Corp. (In re Thinking Machs. Corp.), 67 F.3d 1021, 1023

(1st Cir. 1995).

                                         II.


                                         -3-
            When a debtor files for protection under Chapter 12,

any actions against the debtor or his property are stayed.                See

11 U.S.C. § 1201 (1994).           The United States trustee appoints a

trustee     who      manages   the    bankruptcy    estate.         See   id.

§ 1202(b)(1).        Creditors file claims with the trustee, but may

not include in their filings claims for postpetition interest.

See id. § 502(b)(2).           The debtor then files a plan, see id.

§ 1221, which must “provide for the full payment, in deferred

cash payments, of all claims entitled to priority under section

507,”     id.   §    1222(a)(2).       Section    507(a)(8)    renders    the

government      an     unsecured     priority    creditor     for   its   tax

liabilities.        The bankruptcy court ultimately decides whether to

confirm the debtor's plan.           See id. § 1225.   If it does so, it

charges the trustee with “ensur[ing] that the debtor commences

making timely payments required by [the] confirmed plan.”                 Id.

§ 1202(b)(4).        Once these payments are completed, the bankruptcy

court discharges all debts provided for by the plan, except

those specified by § 523(a) as nondischargeable, such as a tax

liability, see § 523(a)(1)(A).              The debtor remains personally

responsible for any debt not discharged in bankruptcy.                    See

Marvin E. Jacob & Jacqueline B. Stuart, The Search for Balance

in Bankruptcy: Congress Debates Bankruptcy Overhaul as Consumer

Bankruptcies Rise, 116 Banking L.J. 369, 377 (1999) (“[D]ebts


                                      -4-
that are nondischargeable pass or ride through the bankruptcy

unaffected and are a postbankruptcy liability of the former

debtor.”).

          In Bruning v. United States, 376 U.S. 358 (1964), the

Supreme Court addressed whether the government is entitled to

recover from the debtor postpetition interest on a tax liability

that was not discharged through bankruptcy.               See id. at 358

(interpreting the superseded Bankruptcy Act of 1898).              As the

Third Circuit explained, in holding that the debtor remains

personally responsible for postpetition accrued interest, the

Bruning Court “distinguished between denial of post-petition

interest against the bankruptcy estate on a nondischargeable

debt and the accrual of interest on a nondischargeable debt

during the pendency of the bankruptcy to be collected from the

debtor after the bankruptcy proceeding is completed.”            Leeper v.

Pennsylvania Higher Educ. Assistance Agency, 49 F.3d 98, 101 (3d

Cir.   1995)   (emphasis   added).     The    Court   reasoned    that   by

categorizing postpetition interest as nondischargeable, Congress

“intended personal liability to continue as to the interest on

that debt as well as to its principal amount.”              Bruning, 376

U.S. at 360.    Therefore, it held that postpetition interest on

a   nondischargeable   tax   claim   “remains,    after    bankruptcy,   a

personal liability of the debtor.”           Id. at 363.    Bruning thus


                                 -5-
stands for the proposition that a debtor with tax liabilities in

existence prior to seeking bankruptcy protection is liable after

his debts are discharged for postpetition interest on this tax

debt.

           While Bruning addressed the issue under section 17 of

the Federal Bankruptcy Act, ch. 541, § 17, 30 Stat. 544, 550

(1899), repealed by Bankruptcy Code, Pub. L. No. 95-598, 92

Stat. 2549 (1978), its holding is applicable to cases arising

under § 523(a)(1)(A) of the Code.                See, e.g., Ward v. Board of

Equalization (In re Artisan Woodworkers), 204 F.3d 888, 891 (9th

Cir.    2000)    (noting   that    Ҥ    17     of    the   Bankruptcy    Act   and

§   523(a)(1)(A)     of    the     Bankruptcy          Code    are   functionally

equivalent”); Burns v. United States (In re Burns), 887 F.2d

1541,     1543     (11th    Cir.        1989)        (noting    that     “pre-Code

interpretations are presumed to have survived the enactment of

the Bankruptcy Code unless Congress has expressed an intention

to change the interpretation of judicially created concepts in

enacting the Code” and concluding that with regard to Bruning,

“Congress did not intend to change the pre-Code law”).

           Debtors convinced the bankruptcy and district courts

that, while the Bruning rule might apply to some chapters of the

Code, it does not apply to Chapter 12.                  The Debtors argue that

Congress wrote § 1222(a)(2) to escape Bruning's dictates.                       They


                                        -6-
contend that “[i]f Congress had intended that unsecured priority

claimholders were to receive [postpetition] interest, it would

have added . . . 'present value' language to § 1222(a)(2).”

This argument obscures the difference between a Chapter 12

debtor's responsibility to satisfy his plan during the pendency

of   the    bankruptcy      proceeding          and   his    remaining       personal

postbankruptcy obligation.                While it is true that § 1222's

wording frees the estate from any obligation to pay postpetition

interest, it does not speak to the debtor's personal obligation

for such interest.          When a debtor files for bankruptcy under

Chapter     12,    his   assets     and   liabilities        become   part     of   the

bankruptcy estate, which the trustee manages throughout the

bankruptcy proceeding.            The debtor must file a plan that will

resolve his debts, which the Code explicitly states may not

include “unmatured interest,” 11 U.S.C. § 502(b)(2).                         Upon the

debtor's        satisfaction   of    those      debts,     the    bankruptcy    court

discharges all of his outstanding dischargeable debts and the

bankruptcy proceeding is over.                  See id. § 1228.         The debtor

remains personally liable, however, for any nondischargeable

debts.     See Jacob & Stuart, supra, at 377.                    Thus, § 1222(a)(2)

only governs how debts must be paid to satisfy the Chapter 12

plan.    When § 1222(a)(2), without the “present value” language,

speaks     of    fully   paying     the   debts,      it    means   that   prior    to


                                          -7-
debtor's release from bankruptcy, the estate must pay the full

amount of his debts as they stood at the time of the petition,

as opposed to the current amount plus postpetition interest.

Section 1222 “do[es] not affect the exception of tax debts from

discharge or a debtor's personal liability.”           In re Artisan

Woodworkers, 204 F.3d at 892.

          Debtors contend that because § 1222(a)(2) prohibits the

inclusion of postpetition interest under the plan, Congress

could not have intended for a debtor postdischarge personally to

have to pay postpetition interest.         But, “[i]n all situations

where the Bruning rule is applicable, the bankruptcy plan cannot

make allowances for post-petition interest; the interest merely

accrues and is collectable against the debtor [as opposed to the

estate] after the bankruptcy is completed.”         Leeper, 49 F.3d at

102.   Moreover, Congress intended this scheme.             See Hanna v.

United States (In re Hanna), 872 F.2d 829, 831 (8th Cir. 1989)

(“Taken   together,   sections   502   and   523   simply    demonstrate

Congress' intent to codify the general principle that applied

under Bruning.   Postpetition interest is disallowed against the

bankruptcy estate under section 502.       Priority tax claims remain

nondischargeable for individual debtors.”).

          We   turn   to   whether   the   postpetition     interest   on

Debtors' tax liability survived § 1228(a) discharge.             Debtors


                                 -8-
note that § 1228(a) mandates that all debts under the plan must

be paid in full before the debtor can be discharged.               Proceeding

from this premise, they argue that because nondischargeable tax

debts must be satisfied before discharge is entered, neither the

tax   liability    nor    its   interest    can    survive   discharge,       and

Bruning is inapplicable.          We have a different view.

            The   plain   language    of    §   1228(a)(2)   provides        that

discharge specifically does not apply to any debt listed in

§ 523(a).    Section 523(a)(1)(A), in turn, unequivocally notes

that “[a] discharge under section . . . 1228(a) . . . does not

discharge    an   individual      debtor    from    any   debt”    for   a    tax

liability, irrespective of “whether or not a claim for such tax

was filed or allowed.”          11 U.S.C. § 523(a)(1)(A).         In addition,

Debtors' reading of the Code would render even the principal of

a tax liability extinguished after the plan is completed if, for

example, the claim for tax liability was not filed or allowed

and therefore was not included in the Chapter 12 plan.                       This

interpretation is untenable.         See Bruning, 376 U.S. at 360 (“It

is undisputed that . . . petitioner remained personally liable

after his discharge for that part of the principal amount of the

tax debt and pre-petition interest not satisfied out of the

bankruptcy estate.”).           Tax liabilities survive the bankruptcy




                                      -9-
proceeding's termination, and as      Bruning held, so does the

interest upon these liabilities.

         Debtors also contend that allowing the IRS to pursue

postpetition interest contradicts the purpose of Chapter 12,

which is designed to aid a struggling family farmer to escape

from under the thumb of debt.      Undoubtedly, Congress intended

that Chapter 12 aid debtor-farmers in their attempts to resolve

their financial difficulties.      See 132 Cong. Rec. S15074-05

(daily ed. Oct. 3, 1986) (statement of Sen. Thurmond) (“[Chapter

12] is meant to assist those farmers who have the true potential

to reorganize and to allow them relief from heavy debt burden,

and yet allow farmers to pay creditors what is reasonable under

today's difficult economic situation.”).   But, Congress also has

decided that “certain problems--e.g., those of financing the

government--override the value of giving the debtor a wholly

fresh start.”   Bruning, 376 U.S. at 361; see also In re Hanna,

872 F.2d at 831 (“Congress attempted to balance the interests of

the debtor, creditors and the government, and in the instance of

taxes and interest on such, Congress has determined that the

problems of financing the government override granting debtors

a wholly fresh start.”).   We must respect Congress's judgment.

See Leeper, 49 F.3d at 105 (“Congress . . . may choose to amend

the statute with respect to the treatment of post-petition


                              -10-
interest [for student loans1].   But until and unless it does so,

we see no basis for the courts to change the longstanding rule

as to nondischargeability of post-petition interest.”).

                             III.

         We reverse the judgment of the district court and

remand the matter to the district court for entry of judgment in

favor of the IRS.




    1Debtors argue that because student loans do not have
priority under 11 U.S.C. § 507, the application of Bruning to
them does not support its application here. We disagree. The
absence of student loans in § 507 merely means that such claims
receive no priority under a bankruptcy plan.      That fact is
irrelevant to whether the bankruptcy court can discharge a
student loan's principal and interest.      Section 1328(a)(2)
provides that discharge does not apply to “any debt of the kind
specified in paragraph (5), (8), or (9) of section 523(a).”
Section 523(a)(8) covers student loans. Similarly, § 1228(a)
provides that discharge does not apply to “any debt of the kind
specified in section 523(a).” This similarity indicates that
student loans under § 1328(a) and tax liabilities under
§ 1228(a) receive identical treatment under Bruning.

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