In Re: Waters
ORDER: The United States' Motion for Summary Judgment on 1998 Tax Issues (ECF No. 25 ) and the United States' Motion for Summary Judgment on Issues Remaining in Withdrawn Adversary Proceeding (ECF No. 26 ) are hereby GRANTED for the reasons set forth in the attached document. The Clerk shall enter judgment accordingly and close this case. Signed by Judge Alvin W. Thompson on 3/31/2021. (Mata, E.)
UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
EDWARD J. WATERS,
EDWARD J. WATERS,
UNITED STATES OF AMERICA,
Civil No. 3:15-cv-1506 (AWT)
Bankruptcy Ct. Case No.
99-31833 and Bankruptcy
Ct. Adv. No. 05-3054)
(Related case: 3:15-cv-1791
RULING ON MOTIONS FOR SUMMARY JUDGMENT
The United States of America (the “United States”), on behalf
of the Internal Revenue Service (the “IRS”), has filed two motions
for summary judgment: the United States’ Motion for Summary Judgment
on 1998 Tax Issues (“Motion Re 1998 Tax Determination”), ECF No.
25, and the United States’ Motion for Summary Judgment on Issues
Remaining in Withdrawn Adversary Proceeding (“Motion Re Adversary
Issues”), ECF No. 26. In the former, the United States seeks a
determination that the debtor, Edward J. Waters (“Waters”), is
liable for individual income tax and accrued interest for the 1998
tax year. In the latter, the United States seeks a determination
that the IRS did not violate the automatic stay provisions of the
Bankruptcy Code by withholding overpayments claimed by Waters with
respect to certain tax years. For the reasons set forth below, both
motions are being granted.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
Waters has not set forth facts he contends are in dispute in
response to the United States’ motions for summary judgment and,
as a result, is not in compliance with Local Rule of Civil
Procedure 56(a)(2). 1 Nor has he presented evidence to controvert
the assertions in the United States’ motions. 2 Thus, all facts set
forth in the United States’ Rule 56(a)(1) statements are deemed
admitted by Waters. See Dusanenko v. Maloney, 726 F.2d 82 (2d Cir.
The court notes that Waters, proceeding pro se, is a licensed attorney in New
York and received two copies of the Notice to Self-Represented Litigant
Concerning Motion for Summary Judgment As Required by Local Rule of Civil
Procedure 56(b) (ECF Nos. 25-6 and 26-3), which details the procedures to follow
when filing an opposition to a motion for summary judgment and the consequences
of failing to do so.
Local Rule of Civil Procedure 56(a)(2) provides that:
(i) A party opposing a motion for summary judgment shall file and
serve . . . a document entitled “Local Rule 56(a)2 Statement of
Facts in Opposition to Summary Judgment," which shall include a
reproduction of each numbered paragraph in the moving party’s Local
Rule 56 (a)1 Statement followed by a response to each paragraph
admitting or denying the fact and/or objecting to the fact as
permitted by Federal Rule of Civil Procedure 56(c). . . . All
denials must meet the requirements of Local Rule 56(a)3. A party
shall be deemed to have waived any argument in support of an
objection that such party does not include in its memorandum[.]
(ii) The Local Rule 56(a)2 Statement must also include a separate
section entitled “Additional Material Facts” setting forth in
separately numbered paragraphs meeting the requirements of Local
Rule 56(a)3 any additional facts, not previously set forth in
responding to the movant’s Local Rule 56(a)1 Statement, that the
party opposing summary judgment contends establish genuine issues
of material fact precluding judgment in favor of the moving party[.]
1984) (facts set forth in the movants’ statement of undisputed
facts were properly deemed admitted given opposing party’s failure
to present evidence to controvert any assertions in the movants’
papers and failure to file a local rule statement of disputed
facts). The material facts are set forth below.
On December 19, 1997, Waters filed a petition under Chapter
13 of the Bankruptcy Code, which was transferred between divisions
of the United States Bankruptcy Court in 1999. Waters listed the
IRS and the State of Connecticut Department of Revenue Services
(the “CDRS”) as his only personal creditors in the schedules to
his Chapter 13 petition. The IRS filed an initial proof of claim
on February 4, 1998 in the amount of $924,682.59 for the 1986
through 1996 prepetition tax years.
stipulation (the “Stipulation”), see In re Waters, No. 99-31833,
ECF No. 180, dated July 16, 2001, that was entered as an order of
the Bankruptcy Court and required Waters to dismiss his Chapter 11
case, convert his Chapter 13 case to a Chapter 11 case, sell one
of his residences, and put in escrow a portion of the proceeds
from the sale of that property (the “Escrowed Funds”). Id. at 57. The Stipulation also required Waters to have a tax attorney of
his choosing prepare his late 1993 through 2000 personal tax
returns, plus any quarterly personal income tax return due for
2001, and to use the Escrowed Funds to pay the tax liabilities for
1993 through 2000 and any estimated income tax due for 2001. Id.
at 8. The Stipulation provided further that any administrative tax
expense of the bankruptcy estate was to be paid from the Escrowed
Funds, including prepetition and post-petition taxes incurred by
Chapter 13 case was converted to a Chapter 11 case, the residence
was sold, and a portion of the sale proceeds -- $1,287,206 -- was
placed into escrow with Waters’ bankruptcy attorney.
In late 2001 and early 2002, Waters, through his tax counsel,
filed his 1993 through 2000 federal and state tax returns. The
taxes initially reported as due on these returns were paid from
the Escrowed Funds pursuant to an agreed order of the Bankruptcy
Court (the “Tax Payment Order”), dated April 25, 2002. The Tax
Payment Order provided, in relevant part:
[C]ounsel for the Debtor is hereby authorized to make a
distribution to the [IRS] of $529,520.62 . . . for the
payment by [Waters] of the federal taxes, penalties and
interest owed for his tax years 1993 through 2000, and
the payment of his estimated taxes for 2001; provided
however, that the Court notes that the [IRS] represented
. . . that it has calculated these amounts based on
Although the plaintiff initially contested whether the Stipulation
contemplated using the Escrowed Funds to pay the estate’s tax liabilities as
well as his own, the Bankruptcy Court ultimately held, several years later,
that the language of the Stipulation mandated payment of the estate’s
prepetition and post-petition tax liabilities using the Escrowed Funds. In re
Waters, No. 99-31833, 2010 WL 2940858 (Bankr. D. Conn. July 23, 2010).
returns filed by [Waters] which have not yet been
reviewed or assessed by the [IRS] and reserves its right
to complete its assessment process which may change the
amount due; and it is further . . .
ORDERED that the IRS agrees that the payment by [Waters]
of his taxes, penalties and interest shall not
constitute a waiver by him of the right to file a claim
for a refund of any such penalties and to contest the
Tax Payment Order at 1-2, In re Waters, No. 99-31833, ECF No. 247.
$130,277.99 to the CDRS for taxes, penalties, and interest, and in
addition, a distribution of $128,000 to Waters individually. Id.
It reserved the remaining Escrowed Funds -- approximately $360,000
-- pending further developments and continued litigation.
Not long after the tax returns were filed and taxes paid from
the Escrowed Funds, Waters filed amended tax returns that claimed
refunds for most of the taxes that were paid pursuant to the Tax
Payment Order. The IRS examiner who was initially assigned to
review the amended returns, who was unaware of the Tax Payment
Order, agreed with many of the adjustments that Waters claimed on
the amended returns and scheduled overpayments on the tax accounts
maintained on the IRS’s computer systems for tax years 1993, 1994,
1996, 1997, 1999 and 2000, and reduced the amount of tax still
owed by Waters for tax year 1995. Before any refund was made,
however, the IRS froze the refunds and audited the returns. During
its consideration of the amended returns, the IRS refused to refund
the claimed overpayments in order to preserve a right to setoff
the claimed overpayments against other tax liabilities that were
bankruptcy estate’s 1998 and 2001 taxes.
It is undisputed that, under the Stipulation, the Escrowed
earnings and were therefore not property of the bankruptcy estate.
Adversary Issues (“Statement of Facts Re Adversary Issues”) at 3,
overpayments were paid with funds traceable to Waters’ postpetition earnings –- specifically proceeds from the sale of a
residence that was secured, in part, by a mortgage obtained through
Waters’ post-petition income -- and were understood by both parties
to constitute post-petition obligations. See Mem. in Support of
Mot. Re Adversary Issues (“Mem. Re Adversary Issues”) at 10 and
11, ECF No. 26-2 (referring to the claimed overpayment as a
“postpetition overpayment” and a “postpetition obligation”); Reply
(“Combined Reply”) at 15, ECF No. 31 (describing the “alleged tax
refund obligations here” as “postpetition”); Adv. Compl. at ¶ 10,
Waters v. United States, Adv. No. 05-3054, ECF No. 1 (“Any tax
refunds due the Debtor are post-petition tax refunds[.]”).
In December 2003 Waters filed a contested matter motion with
the Bankruptcy Court seeking a distribution to himself from the
remaining Escrowed Funds because of the IRS’s “refus[al] to pay
the income tax, penalties, and interest refunds . . . due to
[Waters],” and its “assert[ion of] a right to ‘setoff’ these funds”
against other taxes that were disputed to be owed by Waters and
the estate. Debtor’s Mot. for Further Distribution to Him of
Proceeds of Sale of His Residence, In re Waters, No. 99-31833, ECF
No. 381. On December 22, 2003, the United States responded, stating
that the IRS “ha[d] not made a final determination as to the
federal tax refund figure, if any, which it will allow,” and that
therefore Waters’ motion was “premature.” U.S.’s Obj. to Debtor’s
Mot. at 4, In re Waters, No. 99-31833, ECF No. 385. This motion
was held in stasis for several years by the Bankruptcy Court until
this court withdrew the reference. See Order Re Mot. to Withdraw
Bankr. Reference, No. 3:10-mc-14, ECF No. 5.
After completing its audit of the amended returns for 1993
through 2000, the IRS maintained its freeze on overpayments that
it believed would be sufficient to satisfy Waters’ 1991 and 1995
tax liabilities. At that time, the 1991 and 1995 tax liabilities
were the only ones the IRS believed were owed by Waters personally 4.
It is undisputed that the IRS did not seek prior approval from the
Bankruptcy Court to put in place or maintain the freeze with
respect to a refund of Waters’ claimed overpayments.
On October 4, 2004, Waters filed a Motion Under 11 U.S.C. §
362 and § 105: Requesting Court to Find IRS in Willful Violation
of Stay by Withholding Post-Petition Tax Refunds Due Debtor, In re
Waters, No. 99-31833, ECF No. 437, seeking, inter alia, to have
the IRS release and pay his claimed post-petition refunds. The
United States took the position that the relief sought required
the filing of an adversary complaint under Bankruptcy Rule 7001
and Waters agreed to withdraw the motion without prejudice.
converted to a Chapter 7 case and a trustee (the “Chapter 7
Trustee”) was appointed. On October 12, 2004, the IRS erroneously
refunded the excess of the alleged overpayments (i.e., the refund
amounts in excess of the 1991 and 1995 tax liabilities) to the
Chapter 7 Trustee, based on an incorrect understanding that the
source of the excess amounts, i.e. the Escrowed Funds, was property
of the bankruptcy estate under 11 U.S.C. § 541. The IRS filed suit
to recover the refunds, arguing that the refunds should not have
A dispute remained at that time about whether the Stipulation mandated that
the Escrowed Funds be used to pay the bankruptcy estate’s tax liabilities too.
been issued in the first place, and also that, assuming the refunds
were correctly issued, the refunds should have gone to Waters, not
the Chapter 7 Trustee, because the taxes had been paid out of
Waters’ post-petition income. See Compl., United States v. Richard
Coan, Chapter 7 Trustee, No. 3:06-cv-1599 (AWT), ECF No. 1. The
IRS later recovered these funds with a judgment agreed to by the
Chapter 7 Trustee. See Agreed J. In Lead Case, United States v.
Richard Coan, Chapter 7 Trustee, No. 3:06-cv-1599 (AWT), ECF No.
In March 2005, Waters filed an adversary complaint in the
Bankruptcy Court, Waters v. United States, Adv. No. 05-3054,
violation of the automatic stay provisions in 11 U.S.C. § 362 and
for alleged violations of the Internal Revenue Code and/or due
process. 5 The adversary complaint’s allegations of a stay violation
were premised on the IRS’s withholding of the refunds Waters
claimed for tax years 1993, 1994, 1996, 1997, 1999 and 2000. On
May 19, 2005, the United States moved to dismiss the complaint,
arguing that the allegations did not amount to a stay violation
5 The United States agreed that Waters’ adversary complaint could be treated as
alternatively claiming a discharge violation under 11 U.S.C. § 524. See
Statement of Facts Re Adversary Issues at 10; Combined Reply at 6. However, as
discussed below, the court is not considering this theory of liability as it
was not presented in Waters’ response to the order to show cause and was not
argued by Waters in opposition to the motions for summary judgment.
and that the Bankruptcy Court lacked jurisdiction over the claims
that it violated the Internal Revenue Code and/or due process. The
United States conceded that the claim for damages for an alleged
willful violation of the automatic stay was within the Bankruptcy
Court’s jurisdiction. On December 13, 2005, the Bankruptcy Court
denied the United States’ motion to dismiss without prejudice to
reconsideration, and on February 21, 2006 it stayed the adversary
Meanwhile, on May 24, 2005, a discharge was granted in the
Chapter 7 case, which terminated the automatic stay except as to
acts against the property of the estate. As a result of the
discharge, the United States released the withheld overpayments,
credited them to the 1991 and 1995 tax claims against Waters, and
filed a Notice of Having Effected Certain Setoffs and Statement of
Impact on Remaining Liabilities (the “Notice of Setoffs”), Waters
v. United States, Adv. No. 05-03054, ECF No. 32, in the adversary
proceeding. The Notice of Setoffs explained that the IRS’s only
remaining prepetition claims were for the 1991 and 1995 tax years.
It further explained that, in mistakenly issuing the refunds to
the Trustee in 2004, it had held back funds to cover the remaining
1991 and 1995 tax liabilities. These funds continued to be withheld
until the granting of the discharge terminated the automatic stay.
The Notice of Setoffs then described the setoffs made after the
granting of the discharge, including the IRS crediting $54,765.10
$22,006.88 to Waters’ 1995 tax liabilities from a combination of
his 1997 and 1999 overpayments.
With respect to the Motion Re 1998 Tax Determination, Waters
filed a Form 1040, U.S. Individual Income Tax Return for the 1998
tax year (the “1998 Return”) on February 22, 2002. The 1998 Return
reported a total tax owed of $56,803, which was subsequently paid
from the Escrowed Funds pursuant to the Tax Payment Order. Soon
thereafter, Waters filed a Form 1040X, Amended U.S. Individual
Return”). The adjustments made by Waters in the Amended 1998 Return
claimed to reduce the total tax owed for that year from $56,803 to
$17,172 and claimed the difference, $39,631, as a refund owed to
Waters. The claim for a $39,631 refund was initially allowed by
the IRS, and an overpayment in that amount was posted to Waters’
1998 tax account. Before a refund check was issued to Waters,
however, the IRS froze the refund, refused to disburse funds in
order to preserve its right to setoff the claimed overpayment
against Waters’ disputed tax liabilities, and audited the Amended
On February 22, 2005, the IRS issued a Notice of Deficiency
to Waters with respect to the his 1998 tax liabilities. After
making several adjustments to the Amended 1998 Return, the IRS
asserted that the total corrected tax was $90,351 and there was a
remaining tax deficiency of $73,179 (which accounted for the
$17,172 that remained assessed based on the Amended 1998 Tax
assessments against Waters for additional federal income tax for
the 1998 year in the amount of $93,372.98, which consisted of tax
owed in the amount of $73,179, a 25% late filing penalty in the
$38,488.73. These assessments exceeded the payment of $98,990.82
that was made in 2002 from the Escrowed Funds pursuant to the Tax
“Underlying Tax Deficiency”) as of the Deficiency Determination
Meanwhile, in September 2005 the IRS filed a contested matter
motion pursuant to 11 U.S.C. § 505, In re Waters, No. 99-31833,
ECF No. 477, to determine the 1998 and 2001 tax liabilities of
Waters and his bankruptcy estate in order to collect taxes from
the Escrowed Funds pursuant to the Stipulation. Through a series
of decisions, the 2001 tax liabilities of Waters and the estate
agreement of Waters, for this court to withdraw the reference with
respect to the determination of Waters’ 1998 tax liabilities and
the adversary complaint. See Unopposed Mot. of United States to
Withdraw Reference Respecting (1) Adv. No. 05-03054, and (2) 1998
Tax Determination, ECF No. 1. On October 14, 2015, this court
issued an order, pursuant to 28 U.S.C. § 157(d), withdrawing the
reference to the Bankruptcy Court with respect to these issues.
See Order Withdrawing Reference, ECF No. 4.
regarding the issues he contended needed to be resolved with
respect to both contested matters. Waters did not file position
papers, nor did he file a motion requesting additional time to
file them. On August 18, 2016, the court issued an order to show
cause why, inter alia, default judgment should not be entered
against him with respect to the 1998 tax liabilities in the amount
assessed by the IRS and why his adversary complaint should not be
dismissed for failure to comply with the scheduling order. See
Order to Show Cause, ECF No. 18. On September 6, 2016, Waters filed
his response to the order to show cause. With respect to the
determination of his 1998 tax liabilities, he explained:
Following the entry of the scheduling order, Waters
discovered that the 1998 information that was ordered
was impossible for him to provide within the 4 week
period. . . .
The impossibility facing Waters with respect to the 4
week response period is that he did not have these 1998
returns since they were put in storage over ten years
ago by his accountants and that his Tax Counsel was on
vacation to Southeast Asia at this time. . . .
[W]ithout his Tax Counsel, the above 1998 tax returns
cannot be understood by Waters in attempting to
reconstruct them. . . .
Waters thought he would have to wait for the return of
his Tax Counsel to find these returns, or to request
Attorney Sklarew to assist him in this regard. . . .
Waters did not understand that the proper procedure
under these circumstances regarding a scheduling order
was to file a Motion requesting an extension of time for
their return and not to wait for his Tax Counsel and
Attorney Sklarew to return.
Debtor’s Response to Order to Show Cause (“Debtor’s Response”) at
2-3, ECF No. 19. With respect to the adversary complaint, Waters
It is now very clear that the IRS issued tax refunds in
excess of $200,000 to the Debtor for prepetition tax
years 1988 thru 2000, which were intercepted without a
single dollar of tax liability outstanding, and
thereafter held until final determinations of tax were
made, having been paid from Debtor's postpetition
earnings. . . .
During the Chapter 13 phase of the case, all tax returns
1988 thru 1996 were deemed prepetition [petition filing
l2/19/l997], and tax years 1998 thru 2000 were deemed
postpetition administrative claims. Upon conversion of
the case in 2001 to a case under Chapter 11, the
prepetition tax claims included all claims thru 2000
under l1 U.S.C. 348(a) and (d). Consequently[,] when the
Debtor paid his tax claims 1995 thru 2001 following the
Stipulation . . . , he paid them from his postpetition
earnings for prepetition claims. The tax refunds were
prohibited setoffs under 11 U.S.C. 362.
Id. at 4.
On October 4, 2019, after concluding that entering default
judgment against Waters for the 1998 tax liabilities and dismissal
of the adversary complaint was not in the interest of justice, the
court entered a revised scheduling order precluding Waters from
raising in any subsequent briefing any factual or legal contention
that he did not set forth in his response to the order to show
cause. See 10/4/2019 Revised Scheduling Order, ECF No. 22.
The following month, the United States filed its Motion Re
1998 Tax Determination, seeking a determination that Waters is
liable for $53,728.39 plus interest that has continued to accrue
Justice, Tax Division’s computer program for computing interest on
federal tax determined this amount to be $101,634.49 as of December
The United States also filed the Motion Re Adversary Issues,
seeking a determination that the IRS did not violate the automatic
stay provisions of 11 U.S.C. § 362(a) and that any other remaining
issues with respect to the adversary complaint are barred by the
conferred by 28 U.S.C. § 1334. The court agrees that all other
legal contentions raised by Waters in his oppositions to the United
Therefore, with respect to the Motion re Adversary Issues, Waters
is limited to the theory of liability articulated in his response
to the order to show cause, i.e. that he is entitled to damages
automatic stay provisions of the Bankruptcy Code. No other theories
of liability are being considered by the court.
A motion for summary judgment may not be granted unless the
court determines that there is no genuine issue of material fact
to be tried and that the facts as to which there is no such issue
warrant judgment for the moving party as a matter of law.
Civ. P. 56(a); see Celotex Corp. v. Catrett, 477 U.S. 317, 322-23
(1986); Gallo v. Prudential Residential Servs., 22 F.3d 1219, 1223
(2d Cir. 1994). When ruling on a motion for summary judgment, the
court may not try issues of fact, but must leave those issues to
See, e.g., Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 255 (1986); Donahue v. Windsor Locks Bd. of Fire Comm’rs, 834
F.2d 54, 58 (2d Cir. 1987). Thus, the trial court’s task is
“carefully limited to discerning whether there are any genuine
issues of material fact to be tried, not to deciding them. Its
duty, in short, is confined . . . to issue-finding; it does not
extend to issue-resolution.”
Gallo, 22 F.3d at 1224.
Summary judgment is inappropriate only if the issue to be
resolved is both genuine and related to a material fact. An issue
is “genuine . . . if the evidence is such that a reasonable jury
could return a verdict for the nonmoving party.”
U.S. at 248 (internal quotation marks omitted). A material fact is
one that would “affect the outcome of the suit under the governing
Id. at 248.
When reviewing the evidence on a motion for summary judgment,
the court must “assess the record in the light most favorable to
the non-movant and . . . draw all reasonable inferences in its
Weinstock v. Columbia Univ., 224 F.3d 33, 41 (2d Cir.
2000) (quoting Delaware & Hudson Ry. Co. v. Consol. Rail Corp.,
902 F.2d 174, 177 (2d Cir. 1990)). Because credibility is not an
accepted as true for purposes of the motion. Nonetheless, the
inferences drawn in favor of the nonmovant must be supported by
the evidence. “[M]ere speculation and conjecture is insufficient
to defeat a motion for summary judgment.”
Stern v. Trustees of
quotation marks omitted) (quoting Western World Ins. Co. v. Stack
Oil, Inc., 922 F.2d 118, 121 (2d. Cir. 1990)).
Moreover, the “mere
Anderson, 477 U.S. at 252.
allegations in its pleadings since the essence of summary judgment
is to go beyond the pleadings to determine if a genuine issue of
“Although the moving party bears the initial burden of establishing
that there are no genuine issues of material fact,” Weinstock, 224
F.3d at 41, if the movant demonstrates an absence of such issues,
a limited burden of production shifts to the nonmovant, who must
“demonstrate more than some metaphysical doubt as to the material
facts, . . . [and] must come forward with specific facts showing
that there is a genuine issue for trial.”
Aslanidis v. U.S. Lines,
Inc., 7 F.3d 1067, 1072 (2d Cir. 1993)(quotation marks, citations
and emphasis omitted). Furthermore, “unsupported allegations do
not create a material issue of fact.”
Weinstock, 224 F.3d at 41;
see also BellSouth Telecomms., Inc. v. W.R. Grace & Co., 77 F.3d
603, 615 (2d Cir. 1996) (“[I]t is insufficient for a party opposing
summary judgment merely to assert a conclusion without supplying
supporting arguments or facts.”). If the nonmovant fails to meet
this burden, summary judgment should be granted.
A. Motion Re 1998 Tax Determination
With respect to the Motion Re 1998 Tax Determination, the
United States seeks:
[A] determination that there was no separately taxable
bankruptcy estate during 1998 . . . and that Mr. Waters
is liable for individual income tax, penalties and
interest for the 1998 calendar year in the amount of
$101,634.49 as of December 31, 2019, plus interest
accruing thereafter at federal tax underpayment rates
(as specified in 28 U.S.C. § 1961(c)).
Mot. Re 1998 Tax Determination at 1. In his opposition, Waters
agrees that the court “should partially grant the [United States’]
determined by the IRS amounting to $53,940.39 . . . at the time of
the deficiency.” Re: U.S.’ Mot. for Summ. J. On 1998 Tax Issues
(“Debtor’s Opp’n to 1998 Tax Determination”) at 2, ECF No. 27.
However, Waters argues that “the court should deny any judgment
that [he] owes additional penalties and interest until the IRS
proves these are owed.” Id.
liability as of December 5, 2005, i.e., $53,940.39, and does not
deficiency calculation is based, the sole contested issue with
respect to this motion is Waters’ liability for the assessed
interest on the principal amount of the tax deficiency.
Waters states that, instead of the underlying tax deficiency
as of December 5, 2005, i.e., $53,940.39, “the IRS now asks for a
deficiency determination of $101,634.49 . . . which the IRS states
includes penalties and interest charges up to the present time for
which no evidence is offered, and which is opposed.” Id. at 2. He
argues that no additional computations for penalties and interest
should be determined “without proof of liability.” 6 Id.
The United States maintains that “Waters is conflating the
deficiency in tax principal with assessed additions to tax that
include certain penalties and interest that are not part of the
deficiency” and that have continued to accrue since the Deficiency
Determination Date. Combined Reply at 8. The court agrees.
The United States has shown that these accruals are reflected
in the Account Transcript, a product of the Internal Revenue
Service that details all transactions regarding the plaintiff’s
6 In his opposition to the Motion Re Adversary Issues, Waters also argues that
the court should deny any judgment that he owes additional penalties and
interest with respect to his 1998 tax liabilities because of three affirmative
defenses: equitable estoppel, breach of contract, and unjust enrichment. See
The Debtor Partially Supports the United States’ Mot. for Summ. J. Insofar as
Determining Debtor’s Original 1998 Income Tax Deficiency of $53,940.39; But
Opposes Any Further Assessment of Interest & Penalties . . . (“Opp’n to Mot. Re
Adversary Issues”) at 2-5, ECF No. 30. However, these defenses were not
mentioned in the Debtor’s Response and are therefore barred by the Revised
1998 tax return from March 18, 1999 to December 7, 2015 and
specifies the plaintiff’s total tax liability for the 1998 tax
year, including accrued interest and penalties, as of November 4,
$47,155.98 in interest from the Deficiency Determination Date to
Interest continues to accrue.
The Account Transcript and its computation of additional
interest is explained in the Declaration of Julia Sweeney Regarding
Declaration, Sweeney, an IRS insolvency specialist with access to
account information of taxpayers that is maintained on the IRS’s
computer systems, attests:
The interest assessments in the attached transcript are
all correct. Interest was originally assessed with the
tax assessed upon the filing of the return. Part of the
interest was abated in accordance with the amended
return, and then interest was assessed based on the
deficiency assessment. Interest thereafter accrued (and
continues to accrue). The rate of interest is set by
statute and the computer system automatically calculates
the interest as a mathematical function of the tax not
yet paid from time to time.
Id. at 6.
In light of the foregoing, the United States has met its
initial burden and Waters “must come forward with specific facts
showing that there is a genuine issue for trial.”
U.S. Lines, Inc., 7 F.3d at 1072. Waters has not filed a statement
of facts or pointed to any evidence to create a genuine issue of
fact. Therefore, summary judgment is being granted in favor of the
B. Motion Re Adversary Issues
With respect to the Motion Re Adversary Issues, all facts set
forth in the United States’ Rule 56(a)(1) statements have been
admitted and there are no genuine issues of material fact. Whether
the automatic stay provided for in 11 U.S.C. § 362(a) has been
violated is a question of law. See In re Weber, 719 F.3d 72, 75
(2d Cir. 2013); Eskanos & Adler, P.C. v. Leetien, 309 F.3d 1210,
1213 (9th Cir. 2002); In re Froman, 566 B.R. 641, 654 (S.D.N.Y.
2017); In re Adomah, 368 B.R. 134, 137 (S.D.N.Y. 2007).
Waters claims that the IRS willfully violated the automatic
stay provisions of the Bankruptcy Code by withholding the claimed
overpayments for the 1993, 1994, 1996, 1997, 1999 and 2000 tax
years. Specifically, he maintains that “[t]he actions of the IRS
in imposing” what he refers to as “indefinite ‘V-Freezes,’” which
prevent the payment of tax refunds due to a debtor, “without
seeking a ‘lift of stay’ from [the Bankruptcy Court],” constituted
“impermissible ‘setoffs’” that violated automatic stay provisions
of the Bankruptcy Code. Adv. Compl. at 9. The United States asserts
that “there was no offset until after the stay terminated by the
entry of the discharge, and a freeze simply does not constitute a
stay violation, even if the freeze [is] to preserve a right of
setoff to a liability that [was] ultimately . . . conceded or
rejected by a Court.” Mem. Re Adversary Issues at 11.
The automatic stay, 11 U.S.C. § 362(a), is considered "one of
the fundamental debtor protections provided by the bankruptcy
laws, designed to relieve the financial pressures that drove
debtors into bankruptcy.” E. Refractories Co. Inc. v. Forty-Eight
Insulations Inc., 157 F.3d 169, 172 (2d Cir. 1998) (internal
citations and quotations omitted). “It affords debtors a breathing
spell from the collection process and enables them to attempt a
repayment or reorganization plan to satisfy existing debt.” Id.
See also H.R. Rep. No. 595, 95th Cong., 1st Sess. 340 (1977); S.
Rep. No. 989, 95th Cong., 2d Sess. 54–55 (1978) (“The automatic
stay . . . gives the debtor a breathing spell from his creditors.
“Given its fundamental importance to a debtor's bankruptcy
construed.’” In re Grinspan, 597 B.R. 725, 733 (Bankr. E.D.N.Y.
2019) (citing In re NextWave Pers. Commc'ns, Inc., 244 B.R. 253,
271 (Bankr. S.D.N.Y. 2000)); see also In re TS Emp., Inc., 597
B.R. 494, 533 (Bankr. S.D.N.Y. 2019) (“The scope of the stay is
broad, encompassing almost any type of formal or informal action
estate.”); 3 Collier on Bankruptcy ¶ 362.03 (16th ed. 2020) (“The
stay of section 362 is extremely broad in scope and, aside from
the limited exceptions of subsection (b), applies to almost any
type of formal or informal action taken against the debtor. . . .
Thus, virtually all acts to collect prepetition claims . . . are
The automatic stay is “effective immediately upon the filing
of the petition,” Rexnord Holdings, Inc. v. Bidermann, 21 F.3d
522, 527 (2d Cir. 1994), and, unless lifted by the court, remains
in effect until the case is closed, dismissed, or, if the case is
a case under chapter 7 concerning an individual or a case under
chapter 9, 11, 12, or 13, a discharge is granted or denied. See 11
U.S.C. § 362(c)(2). “On request of a party in interest and after
notice and a hearing,” the court may grant relief from the stay
“for cause” “by terminating, annulling, modifying, or conditioning
[the] stay[.]” 11 U.S.C. 362(d)(1). In light of the automatic
stay’s importance, however, “[o]nly the court may lift the stay”
and “[c]onduct that bypasses the bankruptcy court and violates the
automatic stay” is “impermissible.” In re Fugazy Exp., Inc., 982
F.2d 769, 776–77 (2d Cir. 1992).
“[A] party seeking damages for violation of the automatic
stay must prove the following elements: (1) that a bankruptcy
petition was filed, (2) that the debtor is an individual, (3) that
creditor's actions were in willful violation of the stay, and (5)
that the debtor suffered damages.” In re Parry, 328 B.R. 655, 658
(Bankr. E.D.N.Y. 2005). “The moving party must prove each of these
elements by a preponderance of the evidence.” Id. See also In re
Manchanda, No. 16-10222 (JLG), 2016 WL 3034693, at *5 (Bankr.
S.D.N.Y. May 19, 2016). Here, there is no dispute with respect to
the first, second, and third elements. The parties agree that the
automatic stay was known to be in effect at the time the IRS froze
concludes that the United States is entitled to summary judgment
because under the circumstances of this case, the IRS did not
violate the automatic stay by freezing the refund of the claimed
Section 362(a) provides that “the filing of a bankruptcy
petition ‘operates as a stay, applicable to all entities, of’ most
actions against the debtor, the debtor's property and any property
of the estate.” In re Hale, 535 B.R. 520, 523 (Bankr. E.D.N.Y.
2015) (quoting 11 U.S.C. § 362(a)). Waters claims that the IRS
violated the following provisions of § 362(a):
(1) the commencement or continuation, including the
issuance or employment of process, of a judicial,
administrative, or other action or proceeding against
the debtor that was or could have been commenced before
the commencement of the case under this title, or to
recover a claim against the debtor that arose before the
commencement of the case under this title;
. . .
(5) any act to create, perfect, or enforce against
property of the debtor any lien to the extent that such
lien secures a claim that arose before the commencement
of the case under this title; [and]
(6) any act to collect, assess, or recover a claim
against the debtor that arose before the commencement of
the case under this title[.]
11 U.S.C. § 362(a)(1), (5) and (6). See Adv. Compl. at 1 (“[T]he
[IRS] . . . is in willful violation of §§ 362(a)(1), (5), and
(6)[.]”); Debtor’s Opp’n to Mot. Re Adversary Issues at 1.
Section 362(a)(1) is inapplicable here because it stays only
an action or proceeding against the debtor that was or could have
been instituted before the commencement of the debtor’s bankruptcy
identified by Waters.
Section 362(a)(5) is also inapplicable here because Waters
has not identified what lien is alleged to have been created,
perfected or enforced by means of the challenged freeze, and no
lien existed until after the stay had been terminated as a result
of the discharge.
The creation of a tax lien is governed by the Internal
Revenue Code. Under § 6321 of the Internal Revenue Code, when “[a]
person liable to pay any tax neglects or refuses to pay the same
after demand, the amount . . . shall be a lien in favor of the
United States upon all property and rights to property, whether
real or personal, belonging to such person.” By operation of §
6322 of the Internal Revenue Code, the tax lien imposed by § 6321
“arise[s] at the time the assessment is made and shall continue
until the liability for the amount so assessed . . . is satisfied
or becomes unenforceable by reason of lapse of time.” 26 U.S.C. §
6322. Thus, a tax lien is created upon assessment and nonpayment
of a tax liability. See Estate of Friedman v. Cadle Co., Case No.
3:08CV488 (RNC), 2009 U.S. Dist. LEXIS 130505, *7 (D. Conn. Sep.
9, 2009). Assessment 7 and demand, in turn, occur after the IRS
issues a required notice of tax deficiency to the taxpayer, see 26
U.S.C. §§ 6212 and 6213, and the taxpayer does not contest the
deficiency determination within 90 days from the issuance of the
notice. See 26 U.S.C. § 6213(c) (“If the taxpayer does not file a
“Assessment of tax . . . consists of no more than the ascertainment of the
amount due and the formal entry of that amount on the books of the secretary.”
United States v. Dixieline Fin., Inc., 594 F.2d 1311, 1312 (9th Cir. 1979).
subsection (a) [i.e., within 90 days], the deficiency, notice of
which has been mailed to the taxpayer, shall be assessed, and shall
be paid upon notice and demand from the Secretary.”); United States
v. Reece, 2001 U.S. Dist. LEXIS 24496, *14 (W.D.N.Y. Aug. 14, 2001)
(“[N]o assessment of the tax by the IRS is permitted during the
90-day period immediately following the mailing of the deficiency
notice.”), modified, No. 99-cv-415S, 2002 U.S. Dist. LEXIS 9280
(W.D.N.Y. Mar. 25, 2002).
Waters has not identified what lien he contends was created,
perfected or enforced by the IRS’s freeze. The court can find in
the record only one lien that was placed on Waters’ assets as a
result of his tax liabilities. On February 22, 2005, the IRS issued
a Notice of Deficiency to Waters with respect to his 1998 and 2001
tax returns. A delegate of the Secretary made an assessment against
Waters for additional federal income tax owed with respect to the
1998 tax year on December 5, 2005. A lien was then placed on
Waters’ assets due to his outstanding tax liability for the 1998
tax year on November 6, November 13, and November 20, 2015. See
Account Transcript at 1-2. Thus, a lien was not created until
several years after the stay in this case had been terminated as
a result of the discharge on May 24, 2005. The IRS’s freeze, then,
bore no legal or factual relationship to the creation of the lien
and cannot serve as a basis for liability under § 362(a)(5).
Section 362(a)(6) stays “any act to collect, assess, or
recover a claim against the debtor” that arose prepetition. It is
intended to “prevent creditors from attempting in any way to
frightened, or ill-counseled debtors may succumb to suggestions to
repay notwithstanding their bankruptcy. This provision prevents
evasion of the purpose of the bankruptcy laws by sophisticated
creditors.” H.R. Rep. No. 595, 95th Cong., 1st Sess. 340 (1977).
A “claim” is broadly defined as any “right to payment, whether or
not such right is reduced to judgment, liquidated, unliquidated,
legal, equitable, secured, or unsecured[.]” 11 U.S.C. § 101(5). It
is undisputed that the IRS had claims against Waters within the
meaning of § 101(5) that arose prepetition -- namely, Waters’
contested 1988, 1990, 1991, 1992 and 1995 tax liabilities. 8
“In order to constitute a violation of § 362(a)(6), conduct
must be of a nature that ‘(1) could reasonably be expected to have
a significant impact on the debtor’s determination as to whether
to repay, and (2) is contrary to what a reasonable person would
As previously noted, the IRS withdrew its claims for the 1988 through 1990
and 1992 tax years. See Mem. Re Adversary Issues at 9.
consider to be fair under the circumstances.’” In re Clark, No.
(quoting In re Briggs, 143 B.R. 438, 453 (Bankr. E.D. Mich. 1992).
The United States argues that a setoff, and by extension a
freeze to preserve a right of setoff, cannot constitute an act to
collect, assess, or recover a claim:
Section 362(a)(6) prohibits acts to collect, assess, or
recover a claim “that arose before the commencement of the
case” (i.e., a prepetition claim). . . . As for withholding
refunds to preserve a right of setoff against a prepetition
claim, even a fully completed setoff does not “collect,
assess, or recover” a claim. First, as held in In re Taalib[D]in, Civil No. 16-cv-1194, 2017 WL 3447903 (E.D. Mich.
2017), “characterizing a setoff as an ‘act to collect, assess,
or recover’ would make the following subsection, 11 U.S.C. §
362(a)(7), superfluous,” thus violating “[o]ne of “the most
basic interpretive canons.” Id. at *3. As further observed in
Taalib-[D]in, the Supreme Court has held that a setoff does
not “collect” anything because it is instead the assertion of
a defense to the other party’s claim to collect a debt from
the party asserting setoff. Id. citing Citizens Bank v.
Strumpf, 516 U.S. 16 (1995). For the same reason, a setoff
does not “recover” anything that the party effectuating the
setoff does not already have in its possession.
Combined Reply at 15.
The court agrees with the United States that the act of
freezing the refund of Waters’ claimed overpayments was not an
“actual setoff”. See Mem. Re Adversary Issues at 11. (“[T]he actual
setoffs were made after the discharge[.]”). “The right of setoff
(also called ‘offset’) allows entities that owe each other money
to apply their mutual debts against each other, thereby avoiding
‘the absurdity of making A pay B when B owes A.’” Citizens Bank v.
Strumpf, 516 U.S. 16, 18 (1995) (quoting Studley v. Boylston Nat.
Bank, 229 U.S. 523, 528 (1913)); see also Gratiot v. United States,
40 U.S. 336, 370 (1841) (holding that the right of setoff is a
“common right, which belongs to every creditor, to apply the
extinguishment of the debts due to him.”). A setoff occurs within
the meaning of the Bankruptcy Code when a creditor “inten[ds]
permanently to settle accounts.” Strumpf, 516 U.S. at 19. “A
requirement of such an intent is implicit in the rule followed by
a majority of jurisdictions addressing the question, that a setoff
has not occurred until three steps have been taken: (i) a decision
to effectuate a setoff, (ii) some action accomplishing the setoff,
and (iii) a recording of the setoff.” Id. (citing cases).
the IRS did not evidence an intent permanently to settle accounts
until after the stay was no longer in effect. Only then did the
IRS credit the withheld overpayments to Waters’ 1991 and 1995 tax
liabilities and record the setoff.
The court also agrees with the reasoning in In re TaalibDin as to why the exercise of a right of setoff does not fall
within the scope of § 362(a)(6), i.e. such an interpretation of
§ 362(a)(6) would render superfluous § 362(a)(7).
But the court is not persuaded that, by extension, putting
in place a freeze to preserve a right of setoff can never
constitute an act to collect or recover a claim against a
debtor. Whether a fully completed setoff collects or recovers a
claim is a very different question. The court finds helpful the
analysis in three cases where the IRS placed a freeze on a tax
In United States v. Norton, 717 F.2d 767 (3rd Cir. 1983),
shortly after the debtors filed a Chapter 13 bankruptcy petition,
the IRS withheld a portion of a tax overpayment that was due the
The IRS maintained that by withholding a portion of the
overpaid taxes it had not violated the automatic stay but rather,
simply “‘frozen’ the debtors’ account so as to preserve its setoff
rights against the Nortons.”
Norton, 717 F.2d at 771. The court
concluded that the IRS was in violation of the automatic stay,
The Government argues that since the IRS did not credit the
liabilities, the IRS has not set off the Government’s claim
against the Nortons’ debt. Rather the IRS has simply frozen
the Nortons’ account to preserve its setoff rights and, thus,
has not violated the automatic stay.
. . . .
simply by delaying the entry of a setoff or credit in its
books, it could hold the funds until the case was closed and
then deposit them into its own bank account. By the
unilateral action of one creditor, these funds would become
unavailable for distribution to other creditors or for use by
the debtor in a Chapter 13 plan, thus making it that much
less likely that the debtor could be rehabilitated.
Id. at 771-21, 733.
In re Holden, 217 B.R. 161 (Bankr. D. Vt. 1997), involved a
confirmed a Chapter 13 plan that provided for full payment of taxes
owed the IRS. The Holdens experienced a temporary reduction in
income and fell behind in their monthly plan payments to the
Chapter 13 trustee. When the debtors filed for an IRS rapid tax
refund, the IRS “imposed and maintained a freeze on the Holdens’
entire tax refund for the apparent purpose of coercing payment of
a prepetition debt that already was scheduled to be fully paid
under the terms of the confirmed Chapter 13 plan.”
Id. at 164.
An IRS employee told one of the debtors that if they agreed to pay
their prepetition debt from the tax refund, the IRS would send
them the balance of the refund. The court rejected the argument by
the IRS that its administrative freeze was similar to the freeze
imposed by the bank in Strumpf:
[T]he Supreme Court found “that the mere retention of property
subject to a right of setoff for the purpose of preserving
the right does not violate the automatic stay, at least so
long as the creditor acts diligently in seeking relief from
stay to enforce its right.” Collier para. 553.08 at 553–
86. . . . .
Here, the IRS maintains its administrative freeze is
similar to the freeze imposed by the Bank in Strumpf and
therefore does not constitute a setoff initiated in violation
of the automatic stay. However,
[w]hile clarifying an important question, the Court's
decision in Strumpf did not lay to rest all of the issues
surrounding the practice of the administrative freeze.
For example, the Court expressly did not take up the
contention that the administrative hold was wrongful
because it exceeded the lawful amount of the bank's
setoff right. Nor did the Court consider the issue of
how long a bank may “temporarily” maintain the
administrative hold without seeking relief from stay.
The prudent course would be to seek relief from stay on
an immediate basis.
Collier para. 553.06 at 553–70 (footnote omitted).
This the IRS did not do. Instead, the Holdens allege the
IRS deprived them of their funds until they agreed to pay a
debt which was already addressed in their bankruptcy plan.
Under Strumpf, a temporary freeze on funds in which a
creditor has a good faith basis for asserting a right of
setoff, and which is promptly followed by a request for relief
from stay, maintains the status quo and therefore may not
violate the automatic stay. See In re Tillery, 179 B.R. 576,
581 (Bankr.W.D.Ark.1995). However, accepting as true the
facts alleged by the Holdens, the IRS did not simply maintain
the status quo. It utilized an open-ended “administrative
freeze” to coerce an agreement and to secure the payment of
a debt, without seeking prior approval from the Bankruptcy
Court. Moreover, on its face, the IRS's withholding of $2050
to ostensibly secure collection of $184 was unfair and
apparently not in good faith.
In re Holden, 217 B.R. at 165-66.
In In re Burrow, 36 B.R. 960 (Bankr. D. Utah 1984), the IRS
office followed a procedure under which a freeze code was placed
“on the IRS computer upon receipt of a notice of a bankruptcy
Id. at 962. The debtors’ 1982 tax return showed an
overpayment. The court concluded that the IRS had no setoff rights
in the tax refund.
It reasoned that
[e]ven though a right to setoff 1982 tax overpayments would
have arisen under Section 6402(a) absent bankruptcy, that
right never came into existence because of the automatic
stay and the order confirming the debtors’ plan. . . . .
Section 553(a) does not apply to this case. While the IRS
had a claim against the debtors that arose before the
commencement of the case, the 1982 tax refund was not a
debt owed to the debtors at the commencement of the case.
Id. at 962, 964. The court also concluded that “holding the
refund for collection was also an act to collect or recover a
debt within the meaning of Section 362(a)(6).”
Id. at 964.
As noted above, inexperienced, frightened, or ill-counseled
debtors may succumb to suggestions to repay debt notwithstanding their bankruptcy, and § 362(a)(6) is intended to
prevent creditors from attempting in any way to collect
prepetition debts. In addition, “the automatic stay is broadly
written and broadly construed”.
In re Grinspan, 597 B.R. at 733
(internal quotation marks and citation omitted). Consistent with
the intent behind § 362(a)(6), the circumstances in Norton, In
re Holden and In re Burrow illustrate that administrative holds
or “freezes” by creditors, including the IRS, can under certain
circumstances constitute an act to collect or recover on a
claim. On the other hand, Strumpf illustrates that an
administrative hold or “freeze” is not necessarily a violation
of the automatic stay. The court concludes that whether an
administrative hold or “freeze” is an act to collect or recover
on a claim for purposes of § 362(a)(6) depends on the particular
facts and circumstances.
In In re Holden, the court found that the IRS did not
simply maintain the status quo -- as did the bank in Strumpf –but, rather, used an administrative freeze to go beyond
maintaining the status quo and secure payment of a debt. Going
beyond maintaining the status quo in such circumstances to
secure payment of a debt can fairly be characterized as conduct
of a nature that “(1) could reasonably be expected to have a
significant impact on the debtor's determination as to whether
to repay, and (2) is contrary to what a reasonable person would
consider to be fair under the circumstances.” In re Clark, No.
13-10904, 2014 Bankr. LEXIS at *3. Consequently, such conduct
constitutes an act to collect or recover a claim.
Here, the circumstances surrounding the refusal by the IRS to
refund the claimed overpayments show that IRS’s conduct was not of
a nature that could be reasonably expected to have a significant
impact on Waters’ determination as to whether to pay the taxes he
Nor was it contrary to what a reasonable person would
consider to be fair under the circumstances. Rather, it simply
maintained the status quo.
Under the Stipulation, which was an order of the Bankruptcy
Court, all taxes shown as being due on Waters’ filed tax returns
for the years 1993 through 1996, and all taxes shown as being
due on Waters’ filed tax returns for the years 1997 through 2000
and any estimated income taxes due for 2001, were required to be
paid from the Escrowed Funds. In addition, under the Tax Payment
Order, which was also an order of the Bankruptcy Court, Waters
had a right to file a claim for a refund of penalties only, as
well as contest the assessment, validity and appropriateness of
Waters, however, filed amended tax returns
claiming refunds for most of the taxes that were paid pursuant
to the Tax Payment Order, and the IRS examiner assigned to
review the amended returns, who was unaware of the Tax Payment
Order, agreed with many of the adjustments claimed by Waters on
the amended returns and scheduled overpayments on the tax
accounts maintained on the IRS’s computer systems. Because all
the payments made pursuant to the Tax Preparation Order were
made from the Escrowed Funds, any amounts that were overpayments
that could be refunded also originally came from the Escrowed
Funds. Thus, under the terms of the Stipulation any such
overpayments were required to be applied to Waters’ tax
liabilities, as opposed to refunded to Waters. If the United
States had distributed the amount of the claimed overpayments to
Waters, it would have been entitled to an immediate return of
those amounts by Waters so that they could be deposited as part
of the Escrowed Funds. Consequently, the freeze here was a step
required to prevent circumvention by Waters of the Stipulation
and the Tax Payment Order and ensure that, as provided in the
Stipulation, the Escrowed Funds be used to pay the tax
liabilities of Waters and the bankruptcy estate.
Under these circumstances, the act of the IRS in freezing
refunds of the overpayments claimed by Waters merely maintained
the status quo and did not constitute an act to collect, assess,
or recover a claim against Waters in violation of § 362(a)(6).
Therefore, summary judgment is being granted in favor of the
United States on the issue of whether the IRS violated the
automatic stay provisions of the Bankruptcy Code.
For the reasons set forth above, the United States’ Motion
for Summary Judgment on 1998 Tax Issues (ECF No. 25) and the United
Withdrawn Adversary Proceeding (ECF No. 26) are hereby GRANTED.
The Clerk shall enter judgment accordingly and close this
It is so ordered.
Dated this 31st day of March 2021, at Hartford, Connecticut.
Alvin W. Thompson
United States District Judge
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