In Re Gould

Apr 30, 2010
09-60008
Versions:603 F.3d 1100
2010 WL 1729738
603 F.3d 1100 (2010)

In re Anthony S. GOULD, Debtor,
Anthony S. Gould, Appellant,
v.
United States of America, Appellee, and
Devin Derham-Burk, Chapter 13; United States Trustee, Trustees.

No. 09-60008.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted February 9, 2010.
Filed April 30, 2010.

David A. Boone and Leela V. Menon, Law Offices of David A. Boone, San Jose, CA, for the appellant.

Randolph L. Hutter, Department of Justice, Tax Division, Washington DC, for the appellee.

Before: DIARMUID F. O'SCANNLAIN, STEPHEN S. TROTT and RICHARD A. PAEZ, Circuit Judges.

ORDER

The published order filed April 19, 2010, is hereby WITHDRAWN.

ORDER

The central issue in this case is whether or not the Bankruptcy Court erred in denying the government's motion to lift the automatic stay to allow the Internal Revenue Service "IRS" to offset the debtor's income tax overpayment against his outstanding federal income tax liabilities pursuant to 11 U.S.C. § 553 and 26 U.S.C. § 6402(a). For the reasons given by our Bankruptcy Appellate Panel in In re Gould, 401 B.R. 415 (9th Cir.BAP 2009), we reverse the decision of the Bankruptcy Court, In re Gould, 389 B.R. 105 (Bkrtcy. N.D.Cal.2008), and remand for further proceedings. We note that for cases filed after October 17, 2005, 11 U.S.C. § 362(b)(26) permits the IRS to setoff a pre-petition income tax overpayment against a pre-petition income tax liability without seeking relief from the automatic stay.

Accordingly, the judgment of the Bankruptcy Appellate Panel is AFFIRMED.