588 B.R. 484
Bankr. E.D. Mich.2018Background
- Debtor Patrice Harold and husband Thomas Barrow filed joint returns; they engaged Lothamer Tax Resolution (Gross) to help with delinquent taxes and obtained extensions for 2008 and 2010 returns.
- Gross faxed a copy of the 2008 Form 1040 to IRS revenue officer Antoinette Cooley on June 16, 2009 and earlier emailed that the 2008 return was sent for filing on June 1, 2009; Lothamer also submitted an installment agreement covering 2003–2008 but IRS approval did not list 2008.
- Barrow claims he mailed the 2010 return to revenue officer Cooley by certified mail (October 2011) but no certified mail receipt or postmark is produced.
- IRS records (Form 4340s) show the 2008 and 2010 returns were not filed until January 15, 2016; assessments were made the same day.
- IRS sued in adversary proceeding seeking a §523(a)(1)(B)(ii) ruling that the 2008 and 2010 tax debts are nondischargeable under the two‑year rule; it moved for partial summary judgment.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether 2008 return was timely filed | IRS: Form 4340 shows filing on Jan. 15, 2016; physical delivery rule applies and no §7502 proof exists | Debtor: Gross mailed the return or faxed it to revenue officer on June 16, 2009 (courtesy copy intended as filing) | 2008 return not timely filed; summary judgment for IRS granted |
| Whether 2010 return was timely filed | IRS: Form 4340 shows filing on Jan. 15, 2016; no postmark or registered/certified evidence under §7502 | Debtor: Barrow mailed 2010 return by certified mail to revenue officer in Oct. 2011 | 2010 return not timely filed; summary judgment for IRS granted |
Key Cases Cited
- Miller v. United States, 784 F.2d 728 (6th Cir. 1986) (adopts physical delivery rule; only §7502 exceptions allow mailbox demeanor)
- Surowka v. United States, 909 F.2d 148 (6th Cir. 1990) (limits extrinsic evidence to prove filing when §7502 exceptions not met)
- Stocker v. United States, 705 F.3d 225 (6th Cir. 2013) (reinforces §7502 exception requirements for timely filing proof)
- Gentry v. United States, 962 F.2d 555 (6th Cir. 1992) (Form 4340 certifications are prima facie proof of assessments)
- Anderson v. Liberty Lobby, 477 U.S. 242 (1986) (summary judgment standard)
- Grogan v. Garner, 498 U.S. 279 (1991) (burden of proof for nondischargeability is preponderance of evidence)
- Beard v. Commissioner, 793 F.2d 139 (6th Cir. 1986) (returns invalid where forms were deceptive; discussion of signature/filing issues)