Submitted under Third Circuit LAR 34.1(a) on June 22, 2016
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,
F. Dunn David Dunn Law Offices, PC Counsel for Appellant
C. Avetta Ellen P. DelSole Gilbert S. Rothenberg, Esq. United
States Department of Justice Tax Division Counsel for
Before: [*] FISHER, GREENAWAY, JR. and ROTH, Circuit
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.
failed to file Forms 1040 for 2000, 2001, and 2002 in a
timely manner. 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.
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.
Standard of Review
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. Accordingly, we review
findings of fact for clear error and exercise plenary review
over questions of law.