MEMORANDUM OPINION AND ORDER
I.INTRODUCTION
Appellant Daryl Zain Perry is a debtor in a Chapter 7 bankruptcy case pending in the United States Bankruptcy Court for the Middle District of Alabama. In October 2012, Mr. Perry initiated an adversary proceeding against the Internal Revenue Service to determine the dischargeability of debts he allegedly owed for federal income taxes for eleven tax years.
This matter comes before the court on Mr. Perry’s appeal from the judgment of the bankruptcy court in the adversary proceeding. For the reasons to follow, the judgment of the bankruptcy court is due to be affirmed.
II.JURISDICTION AND VENUE
This is a core proceeding over which appellate jurisdiction is exercised. See 28 U.S.C. § 158(a). Venue is proper because an appeal “shall be taken only to the district court for the judicial district in which the bankruptcy judge is serving.” Id.
III.STANDARD OF REVIEW
The United States District Court functions as an appellate court when reviewing decisions of the United States Bankruptcy Court. Varsity Carpet Servs., Inc. v. Richardson (In re Colortex Indus., Inc.),
Pursuant to Federal Rule of Civil Procedure 56, incorporated into bankrupt
IV. BACKGROUND
The debtor/appellant is Mr. Perry. The creditor/appellee is the Internal Revenue Sendee. On December 20, 2011, Mr. Perry filed a Chapter 7 bankruptcy petition in the United States Bankruptcy Court for the Middle District of Alabama. On October 18, 2012, he commenced an adversary proceeding against the Internal Revenue Service seeking a ruling that his alleged debts for the tax years 1997 to 2007 were dischargeable pursuant to 11 U.S.C. § 523. The Internal Revenue Service filed an answer, asserting that Mr. Perry’s federal income tax debts for the tax years 1997, 1999, 2001, and 2003 were nondischargeable, but conceding that Mr. Perry did not owe a debt for the remaining seven tax years. Hence, only Mr. Perry’s tax debts for the tax years 1997, 1999, 2001, and 2003 are at issue.
The bankruptcy court decided the adversary proceeding on cross-motions for summary judgment and undisputed facts. Those facts are as follows.
Mr. Perry did not assist the Internal Revenue Service with the preparation of the substitute returns. As reported on the Account Transcripts,
Between October 19, 2007, and January 3, 2008, Mr. Perry belatedly filed Form 1040 (individual income tax) returns for each of the four tax years at issue. His returns reported taxable income in amounts substantially less than that reported on the Internal Revenue Services’s substitute returns. (See Perry’s Forms 1040 (Doc. # 2-7).) As a result, the Internal Revenue Service reduced Mr. Perry’s tax liabilities for the tax years 1997, 1999, 2001, and 2003. (See generally Doc. # 6, at 16 (citing Account Transcripts); see also Doc. # 6, at 20 (pointing out that “the IRS adjusted [Mr. Perry’s] taxes based on the returns [he] filed”).)
In sum, Mr. Perry failed to file his federal income tax returns for the tax years 1997, 1999, 2001, and 2003 until after the Internal Revenue Service sent notices of deficiency and made its assessments of Mr. Perry’s tax liabilities. With respect to tax years 1997, 1999, and 2001, Mr. Perry further delayed filing his federal income taxes until after the Internal Revenue Service had placed liens on his assets. To put the time line in perspective, Mr. Perry’s Forms 1040 postdate the original filing deadlines by approximately four to ten years and postdate the substitute returns by four months to three-and-a-half years. The following chart summarizes the relevant dates.
Dates of IRS Dates IRS
Assessments Began Dates IRS Dates of
Tax Year (Substitute Collection Placed Liens on Perry’s Form
Ending Dec. 31 Returns)_Efforts_Perry’s Assets 1040 Filings
1997_Feb. 9, 2004 Feb. 12, 2005 Jan. 13, 2006 Oct. 15. 2007
1999_Feb. 9, 2004 Feb. 12, 2005 Jan. 13,2006 Oct. 18,2007
2001_Feb. 9. 2004 Feb. 12, 2005 Jan. 13, 2006 Oct. 20, 2007
2003_May 21, 2007 Feb. 12,2005 Aug. 1,2008 Oct. 27.2007
Based on the undisputed facts, the bankruptcy court analyzed whether Mr. Perry’s debts for the tax years 1997, 1999, 2001, and 2003 were nondischargeable pursuant to 11 U.S.C. § 523(a)(1)(B)(i), which excepts from discharge tax debts for which a tax return “was not filed or given.” (Bankr.Mem.Op.(Doc. # 2-10).) Examining § 523(a)’s hanging paragraph, which defines the term “return” for discharge purposes,
V. DISCUSSION
To place the bankruptcy court’s ruling into proper context, the court begins with some discussion of the current and historical definition of a § 523(a) “return” and of the holding in McCoy (Part A). After that, the parties’ arguments will be summarized (Part B) and analyzed in light of the relevant law (Part C). As discussed more fully below, the record presents three different legal theories for analyzing the bankruptcy court’s ruling that § 523(a)(l)(B)(i) excepts from discharge Mr. Perry’s federal income tax debts for the tax years 1997, 1999, 2001, and 2003. Under each theory, the bankruptcy court’s judgment is due to be affirmed.
A. The Definition of “Return” (Pre— and Post-BAPCPA) and McCoy’s Holding
Section 523(a)(1) provides a number of exceptions to the general rule that a debt- or obtains a discharge of his or her debts in Chapter 7 bankruptcy proceedings. Under § 523(a)(1), a tax debt is excepted from discharge if it is a debt “with respect to which a return, or equivalent report or notice, if required[,] (i) was not filed or given....” § 523(a)(1)(B)®.
1. The definition of “return” pre-BAPCPA
Pre-BAPCPA, the Bankruptcy Code did not define “return.” In the absence of a statutory definition, the majority of courts, including all federal circuit courts that had confronted the issue, analyzed whether a document qualified as a return by applying a four-part test “under which the document must: (1) purport to be a return; (2) be executed by the debtor under penalty of perjury; (3) contain sufficient data to allow calculation of the tax; and (4) represent an honest and reasonable attempt to satisfy the requirements of the tax law.” Hamer v. United States (In re Hamer),
2. The Definition of “Return” Post-BAPCPA
As part of the BAPCPA, § 523(a) added a “hanging paragraph” that defines a “return” as follows:
*801 For purposes of this subsection, the term “return” means a return that satisfies the requirements of applicable non-bankruptcy law (including applicable filing requirements). Such term includes a return prepared pursuant to section 6020(a) of the Internal Revenue Code of 1986, or similar State or local law, or a written stipulation to a judgment or a final order entered by a nonbankruptcy tribunal, but does not include a return made pursuant to section 6020(b) of the Internal Revenue Code of 1986, or a similar State or local law.
11 U.S.C. § 523(a).
Section 6020(a), in turn, provides:
If any person shall fail to make a return required by this title or by regulations prescribed thereunder, but shall consent to disclose all information necessary for the preparation thereof, then, and in that case, the Secretary may prepare such return, which, being signed by such person, may be received by the Secretary as the return of such person.
26 U.S.C. § 6020(a). And Section 6020(b) provides that when an individual “fails to make any return required by any internal revenue law ... or makes, willfully or otherwise, a false or fraudulent return, the Secretary shall make such return from his own knowledge and from such information as he can obtain through testimony or otherwise.” As summarized in McCoy: “Section 6020(a) returns are those in which a taxpayer who has failed to file his or her returns on time nonetheless discloses all information necessary for the I.R.S. to prepare a substitute return that the taxpayer can then sign and submit.”
3. McCoy HoldingIRule
The Fifth Circuit is the only circuit court of appeals that has addressed whether a late-filed return qualifies as a “return” under the definition in § 523(a)’s hanging paragraph. In McCoy, the Fifth Circuit concluded that the first sentence of § 523(a)’s hanging paragraph provides “a clear definition of ‘return’ for both state and federal taxes.”
As recognized by other bankruptcy courts, McCoy creates a “per se rule that any late-filed return is not a ‘return’ for purposes of assessing the dischargeability of its related tax liability.” Mallo v. United States (In re Mallo),
B. The Parties ’ Arguments on Appeal
1. Mr. Perry
Mr. Perry argues that the bankruptcy court erred in relying on McCoy. He gives three reasons why he thinks McCoy is “plainly wrong.” (Doc. # 6, at 11.) First, he contends that the hanging paragraph does not limit qualifying late-filed returns only to those filed under § 6020(a) or a similar state or local law. (Doc. # 6, at 12.) Second, Mr. Perry argues that because the Internal Revenue Code (which is the “applicable nonbankruptcy law”) neither defines a “return” nor provides that “a late-filed return is not a return,” the phrase “applicable filing requirement,” as set out in the hanging paragraph, should not be interpreted to include a timeliness requirement for filing a tax return. (Doc. #6, at 11 & n. 11.) Third, Mr. Perry argues that an interpretation of § 523(a)’s hanging paragraph that a late-filed return is not a return would “negate” § 523(a)(l)(B)(ii), which expressly contemplates that some tax debts are dischargea-ble notwithstanding a late-filed return. (Doc. # 6, at 11.)
Mr. Perry asks this court to disregard McCoy and instead to look to pre-BAPC-PA case law that defined a “return.” Under pre-BAPCPA case law, Mr. Perry argues that his late-filed returns satisfy the Beard test, in particular the fourth element. Hence, he argues that he filed “returns” for purposes of § 523(a)(1)(B)®, and, therefore, this provision does not except his tax debts from discharge. (Doc. # 6, at 18-23.)
2. The Internal Revenue Service
In the bankruptcy court, the Internal Revenue Service relied on McCoy and similarly minded decisions. It argued that, because Mr. Perry delayed filing his returns until after the Internal Revenue Service had assessed his tax debts pursuant to substitute returns, the returns were not “return[s]” within the meaning of § 523(a)’s hanging paragraph. Under this rationale and according to the Internal Revenue Service, § 523(a)(1)(B)® did not except Mr. Perry’s tax debts from discharge because Mr. Perry did not file qualifying returns. Alternatively, the Internal Revenue Service argued that under pre-BAPCPA case law and specifically the Beard test, Mr. Perry could not demonstrate that his returns represented an honest and reasonable attempt to satisfy the requirements of the tax law, such that the tax debts were nondischargeable as ones with respect to which “returns” were not filed. The Internal Revenue Service relied on the “weight of authority” precluding a debtor from “wait[ing] to see if the IRS will assess taxes on its own, and then submitting statements long after the IRS has been put to its costly proof.” (Doc. # 2-9, at 4 (citing In re Moroney,
On appeal, the Internal Revenue Service continues to rely on its alternative position (i.e., the Beard test), but abandons its main position. The Internal Revenue Service argues that “[a]n interpretation of the hanging paragraph is not required to hold that Mr. Perry’s tax debts are excepted from discharge.” (Doc. # 9, at 6.) It focuses instead on the assessments of Mr. Perry’s tax debts. It says that the assessments are the debts, not Mr. Perry’s later-filed, untimely Forms 1040: “[I]f at the
The Internal Revenue Service also asserts that adoption of its legal theory will “lead[] to less draconian results in other cases.” (Doc. # 9, at 6; see also Doc. # 9, at 7 n. 2 (asserting that its position “is more favorable to taxpayers than” the bankruptcy court’s).) The Internal Revenue Service provides a hypothetical example that, had Mr. Perry reported additional amounts of tax in excess of the assessments rather than less, the portion of the tax that the Internal Revenue Service had not previously assessed would be dis-chargeable under § 523(a)(1)(B)®.
Alternatively, the Internal Revenue Service says that under the pre-BAPCPA four-part Beard test, Mr. Perry cannot meet the fourth prong. It contends that “a Form 1040 filed after a deficiency assessment has been made fails to satisfy the fourth prong because a late-filed Form 1040 does not represent an honest and reasonable attempt to satisfy the requirements of tax law.” (Doc. # 9, at 9.)
C. Analysis
The aftermath of these arguments produces three options for resolving the appeal. First, there is the bankruptcy court’s reasoning that relies on the Fifth Circuit’s interpretation of § 523(a)’s hanging paragraph, see McCoy,
The court finds that under either McCoy, the Internal Revenue Service’s position, or the Beard test, Mr. Perry cannot prevail. Thus, regardless of the reasoning employed, the late-filed returns are excepted from discharge under § 523(a)(1)(B)®, and the bankruptcy court’s judgment is due to be affirmed.
1. McCoy’s Holdiny that Section 523(a)(l)(B)(i) Excepts All Late-Filed Returns from Discharye
The bankruptcy court decided this case on the basis of McCoy, and it is not alone.
Applying McCoy, the bankruptcy court found that none of Mr. Perry’s late-filed returns satisfied the definition of a “return” set out in § 523(a)’s hanging paragraph: Mr. Perry filed the returns late, and § 6020(a) offered no safe harbor. Consequently, Mr. Perry did not file a tax
If the court were to adopt McCoy’s approach, it would reach the same result as the bankruptcy court. Under McCoy’s interpretation of § 523(a)’s hanging paragraph, the debtor must file a tax return timely to satisfy “applicable filing requirements,” save one narrow exception. That exception applies where the return is “prepared pursuant to [§ ] 6020(a) or similar state or local law.” § 523(a) (hanging paragraph). That exception does not provide a safe harbor for Mr. Perry.
It is undisputed that Mr. Perry did not file timely Forms 1040 for the tax years 1997, 1999, 2001, and 2003. It also is undisputed that Mr. Perry did not assist the Internal Revenue Service with the preparation of the substitute returns so as to qualify those returns as § 6020(a) returns. See generally In re Wogoman,
Accordingly, under McCoy, because neither Mr. Perry’s untimely tax returns for the tax years 1997, 1999, 2001, and 2003 nor the Internal Revenue Service’s substitute returns qualify as § 6020(a) returns (or their equivalent under state or local law), the returns are not returns for discharge purposes. Accordingly, McCoy dictates that Mr. Perry’s tax debts for the four tax years at issue are excepted from discharge under § 523(a)(1)(B)®. Mr. Perry concedes this result under McCoy, but instead thinks McCoy got it “plainly wrong.” (Doc. #6, at 11; see also Doc. # 6 (“[I]f the returns had never been filed, pursuant to 11 U.S.C. § 523(a)(1)(B)®, the taxes would be nondischargeable.”) (citing Jt. Stip. of Facts).)
Mr. Perry offers two arguments why he says this case is distinguishable from McCoy, but neither argument is persuasive. First, Mr. Perry argues that under a liberal construction of the discharge exceptions in his favor, his late-filed returns should alternatively be deemed “equivalent report[s] or notice[s]” within the meaning of § 523(a)(1)(B).
The Fourth Circuit rejected the argument that Congress amended § 523(a)(1)(B) to “allow dischargeability of tax debt for debtors who failed to file a required return but nevertheless gave or filed an equivalent report or notice.” Maryland v. Ciotti (In re Ciotti),
The reference [in the amended § 523(a)(l)(B)(i) ] to the failure to provide “notice” means that if a debtor is obligated under nonbankruptcy law to file an amended return or give notice to a governmental unit of an amendment or correction to a prior filed federal tax return, the failure to do so will render nondischargeable any corresponding tax liability to the governmental unit.
Collier on Bankruptcy ¶ 523.07 (16th ed. 2010).
Given Mr. Perry’s failure to cite any contrary authority or provide any criticism of the weight of authority, the court finds the Fourth Circuit’s reasoning in Ciotti persuasive. Mr. Perry filed his Forms 1040 with respect to his original federal income tax obligations, not additional tax obligations arising from any previously filed return. The “equivalent report or notice” language, therefore, does not encompass Mr. Perry’s Form 1040 filings.
Second, Mr. Perry argues that because the Internal Revenue Service admits that he eventually filed returns, it cannot now argue that the “ ‘returns’ are not returns” under § 523(a)(1)(B). (Doc. # 6, at 26-27.) This argument mixes apples (factual issues) and oranges (legal issues). It is an undisputed fact that Mr. Perry filed Form 1040 returns for the tax years at issue (albeit very late), but that fact is not the equivalent of a legal conclusion that the late-filed returns satisfy the definition of a “return” for purposes of discharge, as provided in § 523(a)’s hanging paragraph. Application of the McCoy holding to the undisputed facts results in a legal conclusion that the late-filed returns do not satisfy the definition of “return” for purposes of discharge.
2. The Internal Revenue Service’s Position
The Internal Revenue Service relies on Smythe v. United States (In re Smythe), Bk. No. 11-04077, Adv. No. 11-04077,
Addressing this argument, In re Smythe looked first to the Bankruptcy Code’s definition of “debt”:
The Bankruptcy Code defines “debt” as “liability on a claim.” § 101(12). A “claim” means a “right to payment, whether or not such right is reduced to judgment, liquidated, unliquidated, fixed, contingent, matured, unmatured, disputed, undisputed, legal, equitable, secured, or unsecured.” § 101(5)(A). A “right to payment” is an “enforceable obligation.” Cohen v. De La [de la] Cruz (In re Cohen),523 U.S. 213 , 218 [118 S.Ct. 1212 ,140 L.Ed.2d 341 ] (1998). In tax law, a tax assessment “is the official*807 recording of liability that triggers levy and collection efforts.” Hibbs v. Winn,542 U.S. 88 , 101 [124 S.Ct. 2276 ,159 L.Ed.2d 172 ] (2004).
Id. at *3. Based on a “plain language reading” of the code’s definition of “debt,” it found:
When the I.R.S. made tax assessments against the Debtors, the Debtors’ tax obligations became enforceable and the I.R.S. could pursue its claims; therefore, the assessments created “debt[s]” as defined in the Bankruptcy Code. Although the Debtors subsequently filed Forms 1040, the tax debts had already been established by the I.R.S. assessments. The tax debts, therefore, are debts “for which no return was filed,” and are non-dischargeable under § 523(a)(1)(B)®.
Id. at *3. In light of its finding, the court observed that “whether the Debtors’ post-assessment Forms 1040 qualify as ‘return[s]’ under § 523(a)(1)(B)® is irrelevant.” Id.
At least two other courts have adopted this “more moderate position” that “if the late return was filed prior to any assessment by the IRS, then the taxes would be dischargeable under § 523(a)(1)(B).” In re Pitts,
Applying In re Smythe’s reasoning, the court again would reach the same result on the facts of this case and, thus, the same conclusion as the bankruptcy court. The IRS assessment is the critical event under In re Smythe, and where the assessment precedes the debtor’s filing of tax returns, the assessment creates the debt for which the debtor did not file a return. As in In re Smythe, the Internal Revenue Service assessed Mr. Perry’s taxes after he failed to timely file tax returns. Because Mr. Perry delayed filing his tax returns until after the assessments were made, In re Smythe dictates that Mr. Perry’s tax debts were excepted from discharge pursuant to § 523(a)(1)(B)®. Thus, under In re Smythe’s reasoning, the bankruptcy court’s ruling that Mr. Perry’s 1997, 1999, 2001, and 2003 tax debts are excepted from discharge is due to be affirmed.
Mr. Perry suggests, however, that the Internal Service Revenue cannot prevail under Smythe’s logic because it has not put into evidence the § 6020(b) substitute returns and, thus, has not proven that there actually were assessments. (Doc. # 6, at 27.) This argument fails for the simple reason that it ignores the parties’ stipulation of facts. In the adversary proceedings, Mr. Perry stipulated to the dates that the Internal Revenue Service filed “substitute returns” and the dates he untimely filed his Forms 1040, and those dates establish, without dispute, that Mr. Perry’s filings occurred after the Internal Revenue Service’s filings of “substitute returns.” At no time, apparently until now, has Mr. Perry contended as a factual matter that the substitute returns were insufficient to assess Mr. Perry’s tax liabilities for the tax years at issue, and he cannot contradict the stipulated facts for the first time in these appellate proceedings.
Up to this point, the court has found that under either McCoy (relied upon by the bankruptcy court below) or In re Smythe (relied upon by the Internal Revenue Service on appeal), the bankruptcy court’s judgment is due to be affirmed. The remaining issue is whether under the four-part Beard test, Mr. Perry’s late-filed returns qualify as § 523(a)(1) returns. Mr. Perry and the Internal Revenue Service disagree on the outcome of the Beard test when applied to the facts of this case. Mr. Perry argues that under the Beard test, his belated returns qualify as “returns” for purposes of § 523(a)(l)(B)(i). The Internal Revenue Service says otherwise.
Some courts have concluded that the four-part “Beard test” remains relevant in the post-BAPCPA world because the test is the “applicable nonbankruptcy law” (pursuant to the first sentence of § 523(a)’s hanging paragraph) used to determine whether the debtor’s document is a “return” under § 523(a)(1)(B). See, e.g., In re Martin,
To recap, under the Beard test, “the document must: (1) purport to be a return; (2) be executed by the debtor under penalty of perjury; (3) contain sufficient data to allow calculation of the tax; and (4) represent an honest and reasonable attempt to satisfy the requirements of the tax law.” In re Hamer,
The Internal Revenue Service assumes for the sake of argument that Mr. Perry’s tax returns satisfy the first three prongs of the Beard test, and the court will do the same. The only issue, as generally is the case, is whether the late filings represent “an honest and reasonable attempt to satisfy the requirements of the tax law” so as to satisfy the fourth prong of the Beard test. In re Hindenlang,
In In re Hindenlang, the Sixth Circuit held “as a matter of law that a Form 1040 is not a return if it no longer serves any tax purpose or has any effect under the Internal Revenue Code.” Id. at 1034. “A purported return filed too late to have any effect at all under the Internal Revenue Code cannot constitute an honest and reasonable attempt to satisfy the requirements of the tax law.” Id. (citation and internal quotation marks omitted). There, the debtor did not offer any tax purpose for his late filings, and the Sixth Circuit conceived none. It observed, for example, that a post-assessment return would not affect the statutes of limitations governing the Internal Revenue Service’s collection and assessment activities and would not mitigate any potential civil or criminal lia
Although the Fourth and Seventh Circuits largely aligned with the Sixth Circuit’s decision in In re Hindenlang, these two circuits stopped short of adopting the Sixth Circuit’s bright-line rule that a post-assessment filing can never amount to a § 523(a)(l)(B)(i) return. The Fourth Circuit observed, for example, that a situation where a post-assessment filing increased a taxpayer’s liabilities “might demonstrate that the debtor, despite his delinquency, had attempted in good faith to comply with the tax laws.” In re Moroney,
Based upon the foregoing authorities, the court finds as a matter of law that Mr. Perry did not make a reasonable endeavor to satisfy his tax obligations. His Forms 1040 were not just late, but very late. They postdate the original filing deadlines by approximately four to ten years. Mr. Perry delayed so long that by the time he got around to filing his Forms 1040, the Internal Revenue Service had sent notices of deficiencies, had completed the arduous task of calculating the taxes he owed, had assessed his tax liabilities, and had commenced collection activities. It hardly seems coincidental or an act of good faith that, when hit with liens on his property and the reality of paying a substantial amount of back taxes, penalties, and interest, Mr. Perry finally filed belated Forms 1040 that reveal lesser liabilities than the Internal Revenue Service had assessed. See In re Moroney,
But Mr. Perry argues that, unlike in In re Hindenlang, his late-filed returns served a tax purpose because the Internal Revenue Service relied on them “for multiple assessments and entries as indicated by [its] tax transcripts,” including to reduce his tax liabilities. (Doc. # 6, at 21.) The debtor in In re Moroney made a similar argument, and the Fourth Circuit rejected it as “miss[ing] the point.”
Holding that the debtor’s untimely filed federal income tax returns were excepted from discharge under § 523(a)(l)(B)(i), the Fourth Circuit concluded that “[d]ebtors like Moroney cannot seek the safe haven of bankruptcy by failing to file tax returns, waiting to see if the IRS assesses taxes on its own, and then submitting statements long after the IRS has been put to its costly proof.” Id.; see also Colsen v. United States (In re Colsen),
Mr. Perry’s untimely filings do not create a genuine dispute of material fact that all of a sudden in 2007 Mr. Perry honestly endeavored to comply with the tax laws he had evaded for many years. Mr. Perry’s late filings do not represent “an honest and reasonable attempt to satisfy the requirements of the tax law” so as to satisfy the fourth prong of the Beard test. In re Hindenlang,
4. Summary
The bankruptcy court’s decision and the parties’ arguments present three different theories for determining whether Mr. Perry’s tax debts for the four years at issue are excepted from discharge under § 523(a)(l)(B)(i). Based on the facts, no matter which theory the court applies, the result is the same: Mr. Perry’s tax debts are not excepted from discharge, and the bankruptcy court’s order excepting those debts from discharge is due to be affirmed.
VI. CONCLUSION
The bankruptcy court did not err in excepting from discharge Mr. Perry’s federal income tax debts for the years 1997, 1999, 2001, and 2003 on the basis of 11 U.S.C. § 523(a)(1)(B)®. Accordingly, it is ORDERED that the decision of the bankruptcy court granting the Internal Reve
A separate judgment will be entered.
Notes
. Mr. Perry styled his adversary complaint as "Perry v. United States of America, Department of Treasury, Internal Revenue Service." For brevity, the court refers to the appellee as the "Internal Revenue Service” and, occasionally, as the "IRS.”
. The majority of the undisputed facts are set forth in a joint stipulation. (See Jt. Stip. of Facts (Doc. # 2-7).) Additional facts are set forth here that, although not included in the joint stipulation, also are not in dispute.
. The Account Transcripts, which are prepared by the Internal Revenue Service, are coded, computer-generated transcripts that show certain information in the official computer records of the Internal Revenue Service concerning Mr. Perry’s tax histories with respect to the four tax years at issue. (White Decl. 2 & Exs. A-D.)
. The hanging paragraph appeared as part of the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 ("BAPCPA”). Some courts identify the hanging paragraph with an asterisk — “§ 523(a)(*).” This opinion refers to it as the "hanging paragraph.”
. Although McCoy was decided in the context of a debtor who had filed untimely state income tax returns, the Fifth Circuit found support for its holding in the "post-BAPCPA holdings of the bankruptcy courts ... in the context of federal income tax returns.”
. The United States Bankruptcy Appellate Panel for the Tenth Circuit took a similar approach in In re Wogoman. See
. See Shinn v. IRS (In re Shinn), Bk. No. 10-83750, Adv. No. 10-8139,
. Brown v. Mass. Dep’t of Revenue (In re Brown),
. The BAPCPA added the phrase "or the equivalent report or notice” to § 523(a)(1)(B). See § 523(a)(l)(B)(i) (providing that a tax debt is excepted from discharge if it is a debt "with respect to which a return, or equivalent report or notice, if required (i) was not filed or given .... ”).
. It should be pointed out that Mr. Perry spills much ink on § 523(a)(l)(B)(ii), arguing that this exception to discharge clearly does not apply. Throughout this litigation, the In-temal Revenue Service has agreed with this point. (See Doc. # 9, at 5 n. 1, in which the IRS concurs that the exception in § 523(a)(l)(B)(ii) "does not apply to this