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In re Giacchi

United States Court of Appeals, Third Circuit

May 5, 2017

IN RE: THOMAS GIACCHI, Appellant
v.
UNITED STATES OF AMERICA DEPARTMENT OF THE TREASURY INTERNAL REVENUE SERVICE THOMAS GIACCHI

          Submitted under Third Circuit LAR 34.1(a) on June 22, 2016

         On Appeal from the United States District Court for the Eastern District of Pennsylvania (D. C. Civil Action No. 5-14-cv-01156) District Judge: Honorable Joseph F. Leeson, Jr.

          David F. Dunn David Dunn Law Offices, PC Counsel for Appellant

          Julie C. Avetta Ellen P. DelSole Gilbert S. Rothenberg, Esq. United States Department of Justice Tax Division Counsel for Appellee

          Before: [*] FISHER, GREENAWAY, JR. and ROTH, Circuit Judges

          OPINION

          ROTH, Circuit Judge

         In this appeal, we must determine whether Internal Revenue Service Forms 1040, filed after the IRS has made an assessment of the taxpayer's liability, constitute "returns" for purposes of determining the dischargeability in bankruptcy of tax debts under 11 U.S.C. § 523(a)(1)(B). Thomas Giacchi did not file tax returns on time for the years 2000, 2001, or 2002. Instead, he filed the forms years after they were due and after the Internal Revenue Service had assessed a liability against him. In 2010 and 2012, Giacchi filed for bankruptcy, and in 2013 he sought to discharge his tax liability for the years 2000, 2001, and 2002. The District Court affirmed the Bankruptcy Court's order denying the discharge. We will affirm the District Court's ruling.

         I. Background

         Giacchi failed to file Forms 1040 for 2000, 2001, and 2002 in a timely manner.[1] In 2004, the IRS investigated and assessed a tax liability against Giacchi for 2000 and 2001. Approximately one month after the IRS made those tax assessments, Giacchi filed Forms 1040 for 2000 and 2001. However, he did not file his overdue Form 1040 for 2002 at that time. The IRS assessed his 2002 tax liability in 2005, and Giacchi submitted a Form 1040 for 2002 in 2006. Based on information in the forms Giacchi filed, the IRS abated a portion of the assessment it had made.

         In 2010, Giacchi filed a voluntary Chapter 7 bankruptcy petition and received a discharge of his Pennsylvania tax liability. In 2012, Giacchi filed a Chapter 13 bankruptcy petition and brought this adversary proceeding against the federal government to seek a judgment that his assessed federal income tax liabilities for the years 2000, 2001, and 2002 had been discharged in his Chapter 7 bankruptcy. The Bankruptcy Court concluded that the tax debt in question, owed by Giacchi to the IRS, was non-dischargeable under 11 U.S.C. § 523(a)(1)(B) because Giacchi had failed to file tax returns for 2000, 2001, and 2002, and Giacchi's belatedly filed documents were not "returns" within the meaning of § 523(a)(1)(B) and other applicable law. The District Court affirmed. Giacchi appeals.

         II. Discussion

         A. Standard of Review

         We have jurisdiction over the final order of the District Court, entered in a bankruptcy proceeding, pursuant to 28 U.S.C. §§ 158(d)(1) and 1291. Our standard of review is the same as that exercised by the District Court over the decision of the Bankruptcy Court.[2] Accordingly, we review findings of fact for clear error and exercise plenary review over questions of law.[3]

         B. ...


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