In re: DONALD WAYNE BUSH and KIMBERLY ANN BUSH
ENTRY ON MOTION FOR LEAVE TO APPEAL: Accordingly, the motion for leave to appeal is GRANTED. This ruling renders moot the United States' motion for emergency hearing (Dkt. No. 4) ***SEE ENTRY FOR ADDITIONAL INFORMATION***. Signed by Judge William T. Lawrence on 9/4/2015. (DW)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
DONALD WAYNE BUSH and
KIMBERLY ANN BUSH,
) CAUSE NO. 1:15-cv-1318-WTL-DKL
) Bankruptcy Cause No. 14-9053-JMC
) Chapter 7
ENTRY ON MOTION FOR LEAVE TO APPEAL
This cause is before the Court on the United States’ Motion that District Court Grant
Interlocutory Appeal from Order Denying Dismissal for Lack of Jurisdiction (or Abstention)
(Dkt. No. 1), as amended by the United States in its Clarification of Statements in United States’
Request to Expedite and/or in Its Motion for Leave to Appeal (Dkt. No. 5). The Debtors have
indicated that they do not intend to file an opposition to the motion as amended. The Court,
being duly advised, GRANTS the motion for the reasons set forth below. This ruling renders
moot the United States’ motion for emergency hearing (Dkt. No. 4).
In a nutshell, the dispute in this case is whether the bankruptcy court or the tax court is
the proper forum in which to resolve the question of whether certain of the Debtors’ tax returns
were fraudulent. The United States brings its motion pursuant to 28 U.S.C. § 158(a)(3), which
provides “[t]he district courts of the United States shall have jurisdiction to hear appeals . . . with
leave of court, from other interlocutory orders and decrees” of a bankruptcy court. Although the
statute gives no guidance regarding the standard to be applied to determine whether leave of
court should be granted, the Court agrees with the United States that it has broad discretion to
determine whether to accept an appeal under § 158(a)(3).
The interlocutory order the United States wishes to appeal in this case is the bankruptcy
court’s order in which it (1) ruled that it had jurisdiction to decide the issue of whether the
Debtors’ tax returns were fraudulent; and (2) declined to abstain from deciding the issue so that
the tax court could do so. There is no controlling authority on the jurisdictional issue, and there
appears to be disagreement among the courts that have considered the issue; the issue of
abstention is also one about which reasonable minds could disagree. It appears that the
bankruptcy judge agrees that the law is far from settled, as he has recommended that this Court
accept the appeal. See Dkt. No. 4-1. There does not seem to be any dispute that deciding the
issue now will best serve the interests of judicial economy and will not prejudice either party.
Accordingly, the motion for leave to appeal is GRANTED.
SO ORDERED: 9/4/15
Hon. William T. Lawrence, Judge
United States District Court
Southern District of Indiana
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