Young v. United States

         United States Court of Appeals
                       For the First Circuit


No. 00-1484

       IN RE:     CORNELIUS P. YOUNG and SUZANNE P. YOUNG,

                              Debtors.
                             __________

              CORNELIUS P. YOUNG and SUZANNE P. YOUNG,

                        Debtors, Appellants,

                                 v.

                     UNITED STATES OF AMERICA,

                              Appellee.
                             __________

                           VICTOR DAHAR,

                              Trustee.


         APPEAL FROM THE UNITED STATES DISTRICT COURT

                 FOR THE DISTRICT OF NEW HAMPSHIRE

       [Hon. Steven J. McAuliffe, U.S. District Judge]


                               Before

                       Torruella, Chief Judge,

                   Bownes, Senior Circuit Judge,

                     and Boudin, Circuit Judge.


     Grenville Clark III with whom Gray, Wendell & Clark, P.C.
was on brief for appellants.
     Thomas J. Sawyer, Tax Division, Department of Justice, with
whom Paula M. Junghans, Acting Assistant Attorney General, Paul
M. Gagnon, United States Attorney, and Bruce R. Ellisen, Tax
Division, Department of Justice, were on brief for the United
States.


                       December 1, 2000
           BOUDIN,    Circuit    Judge.    Having    obtained   a   filing

extension, Cornelius and Suzanne Young filed their 1992 federal

income tax return on October 15, 1993.              Their return showed

taxes due after withholding, but no payment accompanied the

return.    Instead, the Youngs made modest payments to the IRS for

a number of months and then, on May 1, 1996, filed for Chapter

13 bankruptcy,       11 U.S.C. § 1321 (1994).        This automatically

stayed all IRS efforts to collect taxes from the Youngs.             Id. §

362(a)(6).

           To   complete   a    Chapter   13   bankruptcy--typically     a

proceeding that lasts several years--requires that tax claims be

paid in full.        11 U.S.C. §§ 507(a)(8), 1322(a)(2).            At the

outset, the IRS filed a proof of claim for the unpaid 1992

taxes.    However, the Youngs did not stay the course; instead, on

October 23, 1996, the Youngs moved to dismiss their petition.

Id. § 1307.     The bankruptcy court did so on March 13, 1997,

which would normally terminate the automatic stay.1                 Id. §

362(c)(2).

           One day before the Chapter 13 proceeding was closed,

the Youngs filed a new "no asset" bankruptcy petition under


    1The Youngs argue that the automatic stay was lifted upon
their motion to dismiss rather than when the bankruptcy court
closed the case. Because the choice of dates does not affect
our analysis or outcome, we assume for simplicity's sake that
the closing date controls.

                                   -4-
Chapter 7. This in turn continued the automatic stay pendente

lite.     Chapter 7 is usually a brief proceeding to distribute

non-exempt assets to creditors.          On June 17, 1997, the Youngs

received a discharge in the Chapter 7 proceeding, generally

discharging their debts "[e]xcept as provided in section 523 [of

title 11]," 11 U.S.C. § 727(b).

               After the discharge the IRS sought the unpaid balance

for the Youngs' 1992 taxes, and the Youngs then asked the

bankruptcy court to rule that their remaining 1992 tax liability

had     been     discharged.    The   IRS    countered   that   section

523(a)(1)(A) of the Bankruptcy Code precludes the discharge of

any debt "for a tax . . . of the kind and for the periods

specified in section . . . 507(a)(8)," 11 U.S.C. § 523(a)(1),

which includes in pertinent part unsecured government claims for

income tax

               for a taxable year ending on or before the
               date of the filing of the petition for which
               a return, if required, is last due,
               including extensions, after three years
               before the date of the filing of the
               [bankruptcy] petition . . . .

11 U.S.C. § 507(a)(8)(A)(i).

               This convoluted language is commonly understood to

describe claims for taxes for which the return was due three

years or less before the petition was filed.         The Youngs' 1992

return was due on October 15, 1993; more than three years before

                                   -5-
their Chapter 7 petition was filed on March 12, 1997.                               In

response to this computational argument for discharge, the IRS

said that in calculating the three-year period under section

507,   the      court   should       exclude    the    period    during    which   the

Chapter 13 automatic stay had prevented the IRS from collecting

the Youngs' tax debt; if this is done, the elapsed delay is well

under three years.

             Following        the     majority        view    among     the   divided

authorities, the bankruptcy court agreed with the IRS that the

three-year period in section 507 should be tolled during the

period     of    the    prior    automatic       stay.        The    district    court

affirmed, saying that the better reasoned decisions supported

this result.       The Youngs now appeal to this court.                   The issues,

which turn solely on the law, are considered de novo in this

court.     Martin v. Bajgar (In re Bajgar), 104 F.3d 495, 497 (1st

Cir. 1997).

             Prior      to    1966,     no     tax    debt     was    discharged    by

bankruptcy.         11 U.S.C. §§ 35(a)(1), 104(a)(4) (1964).                       The

ability of the IRS to recover unpaid taxes was constrained only

by   the   statute      of    limitations       requiring       (exceptions     aside)

assessment       within      three    years    of     the    return's   filing,    and

collection within six years (now ten years) of assessment.                          26

U.S.C. §§ 6501-02 (1964 & 1994).                In 1966, Congress amended the


                                          -6-
Bankruptcy Code to strike a new balance between government

revenue needs and the "fresh start" objectives of the bankruptcy

laws.   Pub. L. No. 89-496, § 2, 80 Stat. 270 (1966) (codified at

11 U.S.C. § 35 (Supp. V 1970)); S. Rep. No. 1158 (1966),

reprinted in 1966 U.S.C.C.A.N. 2468, 2469-72.                 Taxes were made

dischargeable     under   Chapter   7   but    subject    to    a   three-year

"lookback" provision which, ignoring exceptions not relevant

here, read as follows:

            A discharge in bankruptcy shall release a
            bankrupt from all of his provable debts . .
            . except . . . taxes which became legally
            due and owing by the bankrupt . . . within
            three years preceding bankruptcy . . . .

11 U.S.C. § 35(a) (Supp. V 1970).

            This provision did not affect claims of the government

that were secured by liens that the IRS obtained prior to

bankruptcy through IRS levies or court proceedings to collect

past taxes.    S. Rep. No. 1158, reprinted in 1966 U.S.C.C.A.N. at

2470.   The new three-year lookback limitation, said Congress,

would   "induce   taxing    authorities       to   act   to    prevent   large

accumulations of tax claims," curbing the past practice of

allowing them "to accumulate and remain unpaid for long periods

of time."     Id. at 2471.    Thus, even under the new scheme, the




                                    -7-
government could effectively protect itself as to all tax claims

by acting promptly.2

             In the Bankruptcy Reform Act of 1978, Pub. L. 95-598,

92   Stat.   2549   (codified     at   11    U.S.C.     §§   101-1330    (1994)),

Congress revised the 1966 amendments in various ways.                    Notably,

it split the relevant discharge provision into the two sections

described above (sections 727(b) and 523(a)(1)(A)); it fine-

tuned the three-year period to begin with the date of the return

instead      of   the     due   date   of     the       taxes,   11     U.S.C.    §

507(a)(8)(A)(i);          and   it     added        a    new     exception       to

dischargeability for taxes assessed within 240 days before the

filing of a bankruptcy petition, 11 U.S.C. § 507(a)(8)(A)(ii).

But details aside, there is no indication that Congress intended

to alter the three-year lookback compromise struck in 1966.

             Against this background, the issue on this appeal is

readily framed.         The Youngs rely on the language of the present

Bankruptcy Code and say correctly that a plain language reading

favors their position.           The IRS claim for their unpaid 1992

taxes was never secured and so is dischargeable in bankruptcy



      2
     If the IRS assessed and obtained liens within three years
of a tax due date, taxes due more than three years prior to a
bankruptcy petition would be secured through liens; and although
a bankruptcy petition would automatically stay assessment and
collection of any new taxes, the three-year lookback provision
would prevent discharge as to them.

                                       -8-
unless excepted by the three-year lookback provision.                          And,

literally read, the three-year lookback provision does not apply

to the Youngs because the tax return in question was filed more

than three years prior to the Youngs' Chapter 7 bankruptcy

petition.

            The   IRS,    by   contrast,    urges      that     the     three-year

lookback    period   be    tolled--that         is   to     say,   extended--by

excluding the period during which the Youngs were in Chapter 13

proceedings.      During       this   period,    the      IRS   could    not   make

collection efforts based on its prior assessment against the

Youngs for their 1992 taxes; and given the overlap of the two

automatic stays obtained by the Youngs, the IRS never got the

three-year period that Congress intended to provide it to assess

and collect the 1992 taxes.           This, says the IRS, frustrates the

original compromise embodied in the statute and opens the way to

taxpayer manipulation.

            Congress has adopted tolling provisions to deal with

related problems elsewhere in the Bankruptcy and Tax Codes; 3

indeed, there is a tolling provision of a specialized kind built



    311 U.S.C. § 108(c) (extending nonbankruptcy statutes of
limitation for creditors when they are barred by the Bankruptcy
Code from taking action against a debtor); 26 U.S.C. § 6503(h)
(extending the statutes of limitation for the IRS's assessment
and collection of taxes while it is stayed by the Bankruptcy
Code from pursuing a debtor).

                                      -9-
into the companion 240-day assessment period added to section

507(a)(8)(A)(ii) in 1978.          But the inferences from the presence

of these express provisions more or less cancel out:                        the IRS

gets some support from underlying policies in favor of tolling

adopted in these different situations, while the Youngs can say

that Congress's express provisions show that it knew how to add

tolling provisions when it wished to do so, see Keene Corp. v.

United States, 508 U.S. 200, 208 (1993) (using the canon of

inclusio unius).

          The     truth    is    that     Congress   appears     never      to   have

thought   about    the     precise        problem    posed      by    the   Youngs'

successive petitions.           Had it done so, it is a very safe guess

that it would have adopted a tolling provision of some sort to

protect the IRS.          The IRS's policy arguments, based on the

original 1966 compromise and the threat of manipulation, are

strong ones, and the Youngs have no serious counter-arguments

based on policy; they rely mainly on literal language and the

impropriety of courts rewriting statutes.                  This last point is

the nub of the matter.

          If    Congress        imposed    a   new   tax   on   two    classes     of

taxpayers and patently omitted a third comparable class only

through oversight, a court could not properly read the third

class into the tax statute, however confident judges might be


                                        -10-
about what Congress would have done if it had thought of the

defect.     Yet courts have been far more ready to interpolate

omissions into statutes where the concern is with ancillary

matters such as remedies, exhaustion requirements, time period

calculations, retroactivity, and estoppel.               Such matters are

usually subordinate to Congress's main concerns, and courts

often have prior expertise or existing doctrine in point.

            The category most apt in this case is that of statutes

of limitations.     Ordinarily, such limitations periods are fixed

tersely by statute, but an apparatus of judge-made tolling

doctrine has been superimposed on such statutes.               Developments

in the Law--Statutes of Limitations, 63 Harv. L. Rev. 1177,

1220-35 (1950).     The three-year lookback provision is akin to a

statute   of   limitations--it       preserves    recent   claims    against

discharge and cuts off older ones--and we think that courts

retain the same freedom here to assure that the underlying aims

of Congress are not frustrated by conduct that thwarts the

compromise enacted in 1966.

            Virtually   all    of    the    circuit    cases   dealing    with

successive bankruptcy petitions and the three-year lookback

provision    have   chosen    to    supplement   the    statute;    the   only

difference between the judges is how to do it.             The most common

rule, adopted by five circuits, is that the lookback period is


                                     -11-
automatically tolled during a prior bankruptcy.4               These courts

differ only in using different analogies or arguments to support

the   rule;   four    borrow      from    some   combination    of        tolling

provisions elsewhere in the Bankruptcy and Tax Codes, see note

3 above, while the Tenth Circuit relies on the general equitable

powers of bankruptcy courts under 26 U.S.C. § 105(a).

           By contrast, three other circuits have held that the

lookback   period     is    not     automatically    tolled    by     a    prior

bankruptcy proceeding but that equitable considerations may

permit tolling on a case-by-case basis.              The Eleventh Circuit

states that the equities will usually favor the government,

Morgan v. United States (In re Morgan), 182 F.3d 775, 779-80

(11th Cir. 1999); the Sixth seems to require a showing of debtor

misconduct, Palmer v. United States (In re Palmer), 219 F.3d

580, 585 (6th Cir. 2000); and the Fifth agnostically demands a

"[f]ull development and examination of the facts," Quenzer v.

United States (In re Quenzer), 19 F.3d 163, 165 (5th Cir. 1993).

           We follow the majority view in favor of automatic

tolling.      In   some    cases,   the   equities   alone    might       justify


      4
     Waugh v. IRS (In re Waugh), 109 F.3d 489, 491-93 (8th
Cir.), cert. denied, 522 U.S. 823 (1997); In re Taylor, 81 F.3d
20, 22-24 (3d Cir. 1996); West v. United States (In re West), 5
F.3d 423, 426-27 (9th Cir. 1993), cert. denied, 511 U.S. 1081
(1994); United States v. Richards (In re Richards), 994 F.2d
763, 765-66 (10th Cir. 1993); Montoya v. United States (In re
Montoya), 965 F.2d 554, 557-58 (7th Cir. 1992).

                                      -12-
tolling, but the automatic tolling rule rests on a broader

basis:   it preserves for the government the benefit of the 1966

compromise by giving it the full three years to assess and

collect taxes.   The taxpayer is faced with "old" tax claims only

if he or she has chosen to make back-to-back bankruptcy filings.

And, as a final, although less important benefit, automatic

tolling is infinitely easier and more predictable to administer.

          Some might think that to make up for omissions in

statutes will only encourage careless drafting and that serious

gaps can always be filled by congressional amendment.       Others

might argue that in an age of numerous and complex enactments,

lawmakers should expect that common law judges will use their

traditional skills to support legislation.     As usual, it is a

matter of striking the right balance, and it comforts us to know

that all circuits that have ruled on the matter agree that some

judge-made   tolling   adjustment    is   required   for   section

507(a)(8)(A)(i).

          The judgment of the district court is affirmed.     Each

side will bear its own costs on this appeal.

          It is so ordered.




                              -13-