In re: Anthony Gould, et al v. USA, et al

Filing 920100430


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FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT 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 BAP No. NC-081100-JuMkD ORDER Appeal from the Ninth Circuit Bankruptcy Appellate Panel Markell, Dunn, and Jury, Bankruptcy Judges, Presiding Argued and Submitted February 9, 2010--San Francisco, California Filed April 30, 2010 Before: Diarmuid F. O'Scannlain, Stephen S. Trott and Richard A. Paez, Circuit Judges. COUNSEL David A. Boone and Leela V. Menon, Law Offices of David A. Boone, San Jose, California, for the appellant. 6433 6434 IN RE GOULD Randolph L. Hutter, Department of Justice, Tax Division, Washington D.C., for the appellee. ORDER The published order filed April 19, 2010, is hereby WITHDRAWN.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 (B.A.P. 9th Cir. 2009), we reverse the decision of the Bankruptcy Court, In re Gould, 389 B.R. 105 (Bankr. 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.

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