Ellett v. Goldberg

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

JAMES ELLETT, 
Appellant,
v.
SELVI STANISLAUS, Executive
Director of the Franchise Tax
Board, No. 05-16677


Defendant-Appellee, D.C. No.
GERALD GOLDBERG, Executive CV-04-02546-GEB
Director of the Franchise Tax OPINION
Board,
Appellee,
and
JAMES ELLETT,
Debtor.

Appeal from the United States District Court
for the Eastern District of California
Garland E. Burrell, Chief District Judge, Presiding

Argued and Submitted
October 16, 2007—San Francisco, California

Filed October 29, 2007

Before: Arthur L. Alarcón, David R. Thompson, and
Richard C. Tallman, Circuit Judges.

Opinion by Judge Alarcón

14245
 ELLETT v. GOLDBERG 14247

COUNSEL

Robert N. Kole, Antioch, California, for the appellant.

Kristian D. Whitten, Deputy Attorney General, San Francisco,
California, for the appellee.

OPINION

ALARCÓN, Circuit Judge:

James Ellett appeals from the District Court’s order affirm-
ing the Bankruptcy Court’s decision denying his requests for
(1) a declaratory judgment that his pre-petition taxes owed to
the California Franchise Tax Board (“FTB”) were discharged;
(2) an injunction enjoining Gerald Goldberg (as Executive
Director of the FTB) from making further efforts to collect the
taxes; and (3) attorney’s fees and costs. We must decide
whether the failure of a debtor to provide an accurate social
security number (“SSN”) to a creditor in the notice mailed to
the creditor informing it of the first meeting convened under
11 U.S.C. § 341(a) placed the creditor on sufficient notice to
protect its rights in a Chapter 13 Bankruptcy proceeding in
14248 ELLETT v. GOLDBERG
light of the fact that the mailing otherwise contained the debt-
or’s correct name and address.

We conclude that the claim for payment of pre-petition
taxes owed to the Franchise Tax Board was not discharged
because it did not receive adequate notice of Mr. Ellett’s
Chapter 13 action. Accordingly, we affirm the District Court’s
judgment.

I

A

In 1994, Mr. Ellett petitioned for bankruptcy under Chapter
13 of the Bankruptcy Code. The bankruptcy petition misstated
the last number in Mr. Ellett’s SSN.1 This same erroneous
SSN number was also set forth in the § 341(a) notice that was
received by the FTB. Mr. Ellett’s SSN ends with the numbers
5623.

Mr. Ellett scheduled the FTB as a general unsecured credi-
tor in the amount of $18,000 for non-priority personal income
tax obligations for certain years between 1980-1990. The FTB
received the § 341(a) notice regarding the commencement of
Mr. Ellett’s bankruptcy action, but it did not file a proof of
claim or otherwise participate in the bankruptcy proceeding.
Mr. Ellett’s Chapter 13 plan was confirmed in April 1995 and
was completed two years later. Because the FTB did not file
a proof of claim, it received no distribution under the plan. On
April 19, 1997, the Bankruptcy Court discharged Mr. Ellett’s
debts pursuant to 11 U.S.C. § 1328(a). The FTB was unaware
of the Bankruptcy Court’s discharge order.

Several months later, in a notice dated October 8, 1997, the
FTB sent Mr. Ellett a demand for payment in the amount of
$21,908.52 for personal income taxes for the years 1981,
1
The petition stated that the last four numbers in his SSN were 5626.
 ELLETT v. GOLDBERG 14249
1983, 1984, 1985, and 1990. The FTB notice provided that
“the amount due was not discharged in your bankruptcy, and
is now due and payable.”

In a letter dated October 13, 1997, Mr. Ellett notified the
FTB that the taxes owed by the debtor were discharged
because the FTB failed to file a timely proof of claim in the
Chapter 13 proceedings.

B

The record shows that when the FTB receives a bankruptcy
notice, it checks its records to verify that the SSN on that
notice belongs to the debtor identified in the title. If the debtor
owes delinquent taxes, the FTB files a proof of claim. In those
instances where the name of the debtor does not match the
SSN on the bankruptcy notice, and the taxpayer with the SSN
listed owes no taxes, the FTB places the debtor’s name and
the erroneous SSN on a “fallout list.” FTB policy provides an
alternative procedure for an FTB employee to investigate fur-
ther and attempt to match the name of the debtor to the correct
SSN. This procedure, however, was used infrequently, if at
all, due to resource limitations when Mr. Ellett filed for bank-
ruptcy.

Mr. Ellett’s bankruptcy petition and § 341(a) notice did not
list Mr. Ellett’s SSN, but instead listed the SSN of a taxpayer
who owed no taxes to the FTB. The FTB did not attempt to
match Mr. Ellett with the correct SSN. The record demon-
strates that the FTB did not learn of Mr. Ellett’s bankruptcy
proceedings until after the claims bar date had passed. Mr.
Ellett alleges that his counsel notified the FTB of Mr. Ellett’s
bankruptcy proceeding on two separate occasions in response
to the FTB’s attempts to collect Mr. Ellett’s delinquent
income taxes. However, both communications occurred after
the claims bar date.
14250 ELLETT v. GOLDBERG
C

Mr. Ellett filed an adversary proceeding against the FTB in
order to determine the dischargeability of Mr. Ellett’s tax debt
to the FTB, and for attorney’s fees and costs incurred in that
proceeding based upon the FTB’s alleged violation of Mr.
Ellett’s Chapter 13 discharge order. The matter was tried in
the Bankruptcy Court for the Eastern District of California on
July 15, 2004. The Bankruptcy Court held that the taxes were
not discharged because the misstated SSN violated Rule 1005
of the Federal Rules of Bankruptcy Procedure,2 which
resulted in the FTB not receiving proper notice of the Chapter
13 bankruptcy. Mr. Ellett filed an appeal from this decision to
the United States District Court for the Eastern District of
California. The District Court affirmed the Bankruptcy
Court’s decision. Mr. Ellett filed a timely appeal in this court.
We have jurisdiction to consider this appeal pursuant to 28
U.S.C. § 158(d).

II

“We independently review the bankruptcy court’s determi-
nations and do not give deference to the district court.” Taub
v. Weber, 366 F.3d 966, 968 (9th Cir. 2004) (citing Ferm v.
2
Rule 1005 of the Federal Rules of Bankruptcy Procedure states the fol-
lowing:
The caption of a petition commencing a case under the Code
shall contain the name of the court, the title of the case, and the
docket number. The title of the case shall include the following
information about the debtor: name, employer identification num-
ber, last four digits of the social security number, any other fed-
eral tax identification number, and all other names used within
six years before filing the petition. If the petition is not filed by
the debtor, it shall include all names used by the debtor which are
known to the petitioners.
In 1994, Rule 1005 provided that “[t]he title of the case shall include the
name, social security number and employer’s tax identification number of
the debtor . . . .”
 ELLETT v. GOLDBERG 14251
United States Tr. (In re Crawford), 194 F.3d 954, 957 (9th
Cir. 1999)). “The bankruptcy court’s conclusions of law are
reviewed de novo, and its findings of fact are reviewed for
clear error.” In re Doser, 412 F.3d 1056, 1061 (9th Cir. 2005)
(citing United States v. Fowler (In re Fowler), 394 F.3d 1208,
1212 (9th Cir. 2005)).

The threshold issue in this matter is whether the FTB
received adequate notice of Mr. Ellett’s Chapter 13 bank-
ruptcy when the § 341(a) notice it received reported an incor-
rect SSN but contained his correct name and address. Mr.
Ellett argues that, despite the erroneous SSN, the inclusion of
his correct name and address in his § 341(a) notice put the
FTB on constructive or inquiry notice to take diligent steps to
protect its rights in the bankruptcy Chapter 13 proceeding.
Mr. Ellett maintains that once the FTB received the § 341(a)
notice and realized that it carried a SSN that belonged to an
individual that owed no taxes to the FTB, it was the FTB’s
responsibility to research the name and address listed in the
§ 341(a) notice in order to ascertain whether the FTB had a
claim against the person named in the notice.

The FTB argues that it did not receive adequate notice of
Mr. Ellett’s bankruptcy. It asserts that at the time it received
Mr. Ellett’s § 341(a) notice, its procedures required that a
computer search be conducted to determine if any person with
that SSN owed taxes to the FTB. It contends that the fact that
the FTB had procedures available to search for a taxpayer
when the correct SSN is unknown is irrelevant because it is
not the FTB’s responsibility to conduct such research. The
FTB asserts that adopting such a rule would unfairly place the
burden on creditors to uncover a debtor’s identity if erroneous
notice had been provided. The FTB asserts that every creditor
has the ability to cross-check names, addresses and other
identifying information on their § 341(a) notice, however,
such an investigation would be labor intensive, time consum-
ing, costly, and could lead to erroneous results.
14252 ELLETT v. GOLDBERG
[1] A debtor who completes his payments under a Chapter
13 plan is entitled to a broad discharge of “all debts provided
for by the plan or disallowed under section 502 of [the bank-
ruptcy code]. . . .” 11 U.S.C. § 1328(a). “[T]he phrase ‘pro-
vided for’ in section 1328(a) simply requires that for a claim
to become dischargeable the plan must ‘make a provision for’
it, i.e., deal with it or refer to it.” Matter of Gregory, 705 F.2d
1118, 1122 (9th Cir. 1983). “[A] claim cannot be considered
to have been provided for by the plan if a creditor does not
receive proper notice of the proceedings.” In re Hairopoulos,
118 F.3d 1240, 1244 (8th Cir. 1997) (citing In re Ryan, 78
B.R. 175, 183 (Bankr. E.D. Tenn. 1987)). “The statutory com-
mand for notice embodies a basic principle of justice-that a
reasonable opportunity to be heard must precede judicial
denial of a party’s claimed rights.” City of New York v. New
York, N. H. & H. R. Co., 344 U.S. 293, 297 (1953).

[2] The question presented in this matter has not been
addressed previously by this court or any of our sister circuits.
In two decisions, however, we have considered the duties and
burdens that creditors and debtors bear in regard to notice in
bankruptcy matters. Compare In re Price, 871 F.2d 97, 99
(9th Cir. 1989) (concluding that adequate notice was provided
where debtor’s counsel gave creditor’s counsel actual notice
of the bankruptcy proceedings during state court litigation of
the creditor’s claim, fifty-eight days before the claims bar
date), with In re Dewalt, 961 F.2d 848, 851 (9th Cir. 1992)
(concluding that the statutorily required notice had not been
timely provided where the secretary of the debtor’s counsel
gave the creditor’s counsel actual notice of the bankruptcy fil-
ing seven calendar days before the claims bar date). These
cases focus on how long before a claims bar date an unsched-
uled Chapter 7 creditor must receive actual notice of a bank-
ruptcy in order to fall within the exception of 11 U.S.C.
§ 523(a)(3)(B).3 They are instructive, however, concerning the
issue presented in this action.
3
§ 523(a)(3)(B) provides as follows in pertinent part:
(a) A discharge under section 727, 1141, 1228(a), 1228(b), or
 ELLETT v. GOLDBERG 14253
In Price, a creditor was not personally notified of his debt-
or’s bankruptcy proceedings or the bar date for the filing of
dischargeability complaints. 871 F.2d at 97-98. Instead, the
debtor’s attorney informed the creditor’s counsel that a bank-
ruptcy petition had been filed. Id. The creditor’s counsel was
not notified of the deadlines set in the bankruptcy matter and
took no action before the bar date passed. Id. at 98. We con-
cluded in Price that, because “[c]ounsel for the [creditor] . . .
was given actual notice of the bankruptcy proceedings in time
to file a complaint, or at least to file a timely motion for an
extension of time,” the debt had been discharged. Id. at 99.

In Dewalt, we held that although a creditor received notice
of a debtor’s bankruptcy filing, the notice was not adequate
because it was received only seven days before the claims bar
date. 961 F.2d at 851. In Dewalt, the debtor filed a Chapter
7 petition but failed to list the creditor as required under 11
U.S.C. § 521(1). Id. at 849. As a result of this mistake, the
creditor did not receive a written notice of the bankruptcy or
of the § 341(a) creditor meeting. Id. Upon the creditor’s filing
of a state court action against the debtor, the creditor received
a “cryptic message” from the secretary of debtor’s counsel
stating that he had previously filed for bankruptcy. Id. This

1328(b), . . . does not discharge an individual debtor from any
debt-
....
(3) neither listed nor scheduled under section 521(1) of this title
with the name, if known to the debtor, of the creditor to whom
such debt is owed, in time to permit-
....
(B) if such debt is of a kind specified in paragraph (2), (4) or (6)
of this subsection, timely filing of a proof of claim and timely
request for a determination of dischargeability of such debt under
one of such paragraphs, unless such creditor had notice or actual
knowledge of the case in time for such timely filing and request.
11 U.S.C. § 523 (emphasis added).
14254 ELLETT v. GOLDBERG
message was delivered seven days before the debtor’s claims
bar date. The creditor did not file a complaint challenging dis-
charge, nor did he seek an extension of time to file a com-
plaint. Id.

The creditor filed a claim after the bar date. The bankruptcy
court dismissed it as untimely, finding that the creditor
became aware of the bankruptcy seven days before the bar
date, and, therefore, had enough time to seek an extension of
time to file a claim. Dewalt, 961 F.2d at 850. Relying on
Price, the Bankruptcy Appellate Panel (“BAP”) affirmed. Id.
We reversed the BAP decision. In doing so, we reasoned as
follows:

The BAP majority read Price as holding that if a
creditor, acting under ideal circumstances and with
the utmost of diligence, could have filed for an
extension of time before the bar date, the creditor’s
late complaint would be barred. This interpretation
unfairly punishes creditors, holding them to the high-
est standards of diligence in a situation caused by
negligence of a debtor, and rewarding the debtor, in
effect, for negligent filing.

Id. In addition, this Court commented in In re Maya Constr.
Co. 78 F.3d 1395 (9th Cir. 1996):

The burden is on the debtor to cause formal notice
to be given. . . . [The debtor] seeks to free itself of
an obligation by means of a federal court judgment.
As a matter of due process, the person whose entitle-
ment to money from the debtor will be destroyed by
the judgment is entitled to notice.

Id. at 1399 (citations omitted).4
4
In Maya, a Chapter 11 case, we distinguished our decisions from past
Chapter 7 and 13 cases in which we had held that the creditors received
 ELLETT v. GOLDBERG 14255
Mr. Ellett cites cases from lower courts in other circuits
that he asserts support his position. These cases are distin-
guishable, however, because in each the creditor was aware of
the debtor’s identity. See In re Benny’s Leasing, Inc., 187
B.R. 484, 486 (Bankr. W.D. Pa. 1995) (holding that the IRS
received sufficient notice of debtor’s filing of a Chapter 7
petition even though the notice was sent to the IRS Regional
Service Center instead of the “special procedures division in
Pittsburgh”); In re Boldman, 157 B.R. 412, 416 (Bankr. C.D.
Ill. 1993) (holding that the IRS received sufficient notice of
debtors’ filing of a Chapter 13 petition regarding their busi-
ness when the notice listed the debtors’ social security num-
bers but failed to list their Employer Identification Number);
In re Daniel, 107 B.R. 798, 802 (Bankr. N.D. Ga. 1989)
(holding that the IRS received adequate notice of the debtor’s
Chapter 13 filing even though the notice was sent to the IRS
collection office instead of the district director in Atlanta,
Georgia); In re Solis, 137 B.R. 121, 133 (Bankr. S.D.N.Y.
1992) (holding that the IRS received sufficient notice of a
debtor’s filing of a Chapter 13 petition where the notice listed
the debtor’s SSN but omitted any reference to two employer
identification numbers under which the debtor had operated a
medical practice); In re Nalle, 125 B.R. 164, 168 (Bankr.
W.D. Tex. 1991) (holding that the IRS received adequate
notice of debtor’s Chapter 11 case even though the debtor
failed to list two out of his three debts to the IRS in a docu-
ment entitled “Schedule A-1-Creditors Having Priority,” but
listed the debts in other schedules filed with the Bankruptcy
Clerk’s Office); In re Lagniappe Inn of Nashville, Ltd., 50
B.R. 47, 47, 50 (Bankr. M.D. Tenn. 1985) (holding that,
despite an inaccuracy in the debtor’s name listed in the cap-

adequate notice of the debtor’s bankruptcy, despite the fact that they were
not notified of the claims bar date. 78 F.3d at 1399 (citing In re Coastal
Alaska Lines, Inc., 920 F.2d 1428 (9th Cir. 1990) and Matter of Gregory,
705 F.2d 1118 (9th Cir. 1983)). We explained that “the lack of formal
notice of a proof of claims deadline is not as significant in those chapters.”
Maya, 78 F.3d at 1399.
14256 ELLETT v. GOLDBERG
tion, the debtor’s original petition was sufficient to place it in
bankruptcy and afford it the protections of the automatic stay
where the caption reflected the debtor’s correct address and
status as a limited partnership in Nashville called
“Lagniappe,” and because the creditor and trustee learned of
the bankruptcy independently of the petition).

The cases cited by Mr. Ellett from this Court’s jurispru-
dence are readily distinguishable. See Matter of Gregory, 705
F.2d 1118, 1120 (9th Cir. 1983) (holding that the creditor
received notice of the bankruptcy but failed to receive a copy
of the debtor’s Chapter 13 plan); In re Coastal Alaska Lines,
Inc., 920 F.2d 1428, 1431 (9th Cir. 1990) (holding that
although the creditor was not listed by the debtor in court doc-
uments and thus failed to receive actual notice of the claims
bar date, the creditor received sufficient notice of the bank-
ruptcy and creditor’s meeting when it was informed of the
bankruptcy by the debtor’s attorney). We explained in Costal
Alaska Lines that “[l]ike the creditors in Gregory and Price,
[the creditor] actually received information about the bank-
ruptcy proceedings that was sufficient to put it on inquiry
notice. Its due process claim thus fails.” Id.

Mr. Ellett also relies on an unpublished case from the
United States Bankruptcy Court in the Western District of
Wisconsin that recites facts similar to those described here. In
In re Bringe, 1992 WL 12003983 (Bankr. W.D. Wis. 1992),
Russell and Carol Bringe filed a Chapter 12 bankruptcy peti-
tion that contained a correct SSN for Carol, but an incorrect
SSN for Russell and failed to list the debtors’ employer iden-
tification number (“EIN”). Id. at *1. The Internal Revenue
Service (“IRS”) was served with an order and notice for the
final meeting of creditors, however it claimed that due to the
incorrect SSN and lack of the EIN, its notice was inadequate.
Id. The IRS argued that

a taxpayer’s social security number and/or his
employer identification number are the
 ELLETT v. GOLDBERG 14257
“[i]dentifying numbers that the I.R.S. uses when
researching a debtor’s file to determine if there are
any delinquent taxes to be listed on a proof of
claim.” . . . [B]ecause of the incorrectness or absence
of those two numbers on the debtors’ petition . . . the
I.R.S. was unable to timely locate the delinquent
taxes at issue.

Id. at *2. The bankruptcy court disagreed and found in favor
of the debtors, concluding that the IRS had received reason-
able and adequate notice of the bankruptcy. Id. The court
noted that the § 341(a) notice sent to the IRS contained “the
correct names and addresses of the debtors and their counsel”
and that “Carol Bringe’s social security number was also cor-
rectly given.” Bringe, 1992 WL 12003983 at *3. “The I.R.S.
could have then conducted further checks using the debtor’s
name, his wife’s name, or his wife’s social security number-
all of which were correctly supplied in the § 341 notice.” Id.

The unpublished decision in Bringe is not binding on this
court. In addition, the facts are distinguishable from those
described in the matter before us. In Bringe, the § 341 notice
received by the IRS carried the correct SSN for Ms. Bringe.
Thus, even though the IRS relied completely on SSNs for
researching and determining whether there were any delin-
quent taxes to be listed on a proof of claim, the IRS could
have successfully conducted such research on Ms. Bringe and
identified her as a debtor. The bankruptcy court noted this as
a factor in its decision, explaining that the IRS could have
conducted further research on the debtors by using this infor-
mation. Id.

[3] Mr. Ellett also cites In re Ohio Movers & Storage, Inc.,
118 B.R. 533 (Bankr. N.D. Ohio 1990), in support of his
argument. The bankruptcy court in Ohio Movers held that the
IRS received proper notice of a corporate debtor’s bankruptcy
petition despite the fact that the petition listed an incorrect
EIN for the debtor. Id. at 534. It reasoned as follows:
14258 ELLETT v. GOLDBERG
The IRS argument that it received ineffective notice
due to the incorrect tax identification number is
without merit. It received actual notice of the bank-
ruptcy filing and the claims bar date and is bound
thereby. It is unfortunate this notice was ineffective
because of IRS’s procedural policy of relying solely
on Debtor’s identification number to review tax lia-
bility and file proofs of claim.

Id. Like Bringe, however, the bankruptcy court’s decision is
not binding on this court. Moreover, there are numerous cases
in which other bankruptcy courts have concluded that a credi-
tor is not required to conduct a search if any of the requisite
identification is incorrect or missing from the Rule § 341(a)
notice. See In re Pecovsky, 241 B.R. 530, 533-34 (Bankr.
M.D. Pa. 1999) (holding that debtor’s notice to IRS of his
bankruptcy filing was deficient because it provided debtor’s
SSN but failed to provide his EIN and debtor himself had no
unpaid tax liabilities); In re Anderson, 159 B.R. 830, 837-38
(Bankr. N.D. Ill. 1993) (concluding that the debtor’s notice
was insufficient because, although the creditor received notice
of the debtor’s bankruptcy filing, the debtor failed to list in its
notice all of the names under which it had previously oper-
ated, thus failing to notify creditor about the relevance of the
bankruptcy proceeding to some of its claims); In re Friedman,
184 B.R. 883, 889-90 (Bankr. N.D.N.Y. 1994) (“A creditor
should not have to undertake its own independent investiga-
tion to discover the true identity of a debtor in order to protect
its rights.”); In re Gamble, 85 B.R. 150, 152 (Bankr. N.D.
Ala. 1988) (same).

[4] Mr. Ellett was in the best position to list the correct
SSN on his petition and comply with the additional require-
ments of Rule 1005 of the Federal Rules of Bankruptcy Pro-
cedure. Requiring a creditor to ferret out a debtor’s correct
identity when incorrect identifying information is provided
would be overly burdensome and inappropriate. As stated in
Maya, “[the debtor] seeks to free itself of an obligation by
 ELLETT v. GOLDBERG 14259
means of a federal court judgment.” Maya, 78 F.3d at 1399.
Thus, it is not unreasonable to place the burden on the debtors
to ensure that their creditors received proper notice of their
bankruptcy filing.

[5] Here, due to Mr. Ellett’s negligence in listing an errone-
ous SSN on his bankruptcy petition and § 341(a) notice,
proper notice was not provided to the FTB. Consequently, Mr.
Ellett’s Chapter 13 plan did not “provide for” the FTB taxes.
The FTB should not be punished because Mr. Ellett failed to
provide proper notice including his correct SSN. Because we
conclude that the taxes owed by Mr. Ellett to the FTB were
not discharged, we need not consider Mr. Ellett’s request for
attorney’s fees and costs.

AFFIRMED.

Costs are awarded to the FTB.