1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

 

UNITED STATES BANKRUPTCY APPELLATE PANEL

OF THE NINTH CIRCUIT

In re: ) BAP No. EC-15-1072-DJuF 

)

RICHARD JACKSON and )

TAMARA ANNE JACKSON, ) Bk. No. 10-11810-A-13

) 

Debtors. )

______________________________)

)

RICHARD JACKSON; )

TAMARA ANNE JACKSON, )

)

Appellants, )

)

v. ) O P I N I O N

)

UNITED STATES, )

)

Appellee. )

______________________________)

Argued and Submitted on November 19, 2015

at Sacramento, California

Filed - December 4, 2015

Appeal from the United States Bankruptcy Court

for the Eastern District of California

Honorable Frederick E. Clement, Bankruptcy Judge, Presiding

 

Appearances: David R. Jenkins appeared and argued for Appellants

 Richard Jackson and Tamara Anne Jackson. Jeffrey J.

 Lodge, Assistant U.S. Attorney, appeared and 

 argued on behalf of Appellee United States.

 

Before: DUNN, JURY, and FARIS, Bankruptcy Judges.

FILED

DEC 04 2015

SUSAN M. SPRAUL, CLERK

U.S. BKCY. APP. PANEL

OF THE NINTH CIRCUIT
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

DUNN, Bankruptcy Judge:

The Internal Revenue Service (IRS”) timely filed a proof of

claim (“Initial Claim”) in the chapter 131 case of Richard and

Tamara Anne Jackson. The Initial Claim included (1) an estimate

of the Jacksons’ income tax liability for the 2009 tax year and

(2) a reservation of the right to assess the true tax liability

for the 2009 tax year once the Jacksons had filed their 2009

income tax return (“2009 Return”). Approximately six months

after the 2009 Return was filed, the IRS amended the Initial

Claim (“Amended Claim”) to assert priority status with respect to

the 2009 assessed tax liability, which was approximately six

times the amount estimated. Nearly four years later, the

Jacksons objected (“Claim Objection”) to the Amended Claim

pursuant to § 502(b)(9) on the basis that it was untimely,

asserting that § 1308 required the IRS to file its claim for the

2009 assessed tax liability within 60 days after the 2009 Return

was filed. 

We AFFIRM the bankruptcy court’s order overruling the Claim

Objection.

I. FACTUAL BACKGROUND

The Jacksons filed their chapter 13 bankruptcy petition

(“Petition”) on February 24, 2010. At the time the Petition was

filed, the Jacksons’ 2009 Return had not been filed. 

1

 Unless otherwise indicated, all chapter and section

references are to the Bankruptcy Code, 11 U.S.C. §§ 101-1532, and

all “Rule” references are to the Federal Rules of Bankruptcy

Procedure, Rules 1001-9037. 

-2-
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

On February 28, 2010, the Jacksons filed their Chapter 13

Plan (“Plan”). The Plan provided that claims entitled to

priority pursuant to § 507 would be paid in full. The Plan

included an estimated IRS priority claim in the total amount of

$57,086.93.2

The IRS filed its Initial Claim on April 5, 2010. Through

the Initial Claim, the IRS asserted an unsecured priority claim

in the amount of $6,102.60 under § 507(a)(8) for the 2009 tax

year. The Initial Claim reflected that the Jacksons’ income tax

liability for that period was “unassessed” because no return had

been filed. In a footnote, the Initial Claim provided: 

“Unassessed tax liability(ies) have been listed on this claim

because our records show no return(s) filed. When the debtor(s)

files the return or provides other information as required by law

the claim will be amended.” 

Important to the resolution of this appeal, but not

addressed by either party, through the Initial Claim the IRS also

asserted assessed income tax unsecured priority claims in the

amounts of $3,526.00 and $3,857.00, respectively, for the 2007

and 2008 tax years. In addition, the IRS asserted unsecured

priority tax claims in the amount of $4,999.00 each for the 2007

and 2008 tax years; these latter amounts were marked “Pending

Examination” as “proposed tax deficiency determined by

examination of debtor(s) tax return.” In total, the IRS asserted

an unsecured priority claim in the amount of $23,992.92 through

2 Under §§ 3.04 and 5.04 of the First Amended Plan, the

claim amounts stated in the Plan were estimates only. The proofs

of claim, not the Plan, controlled the allowed amounts of claims.

-3-
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

the Initial Claim.3

On April 28, 2010, the Jacksons filed their First Modified

Chapter 13 Plan (“First Amended Plan”), which provided that IRS

claims entitled to priority pursuant to § 507 would be paid in

full. The First Amended Plan estimated that the IRS priority

claim was $42,678.44. The First Amended Plan was confirmed by

the bankruptcy court’s order entered July 8, 2010.

Pursuant to the extension they had requested, the Jacksons

filed their 2009 Return on October 14, 2010. No copy of the 2009

Return is included in the record either in the bankruptcy court

or on appeal. 

On November 26, 2010, the Jacksons filed their Second

Modified Chapter 13 Plan (“Second Amended Plan”), which reduced

the total monthly plan payment from $2,677.00 to $2,127.00,

necessitated, as set forth in their declaration filed in support

of approval of the Second Amended Plan, by a decrease in income

experienced by the Jacksons. In their motion for approval of the

Second Amended Plan, the Jacksons outlined the impact on secured

creditors resulting from the reduction in the monthly plan

payment. The motion did not address the impact, if any, on

priority creditors. Notably, both the treatment and the amount

of the IRS priority claim remained unchanged under the Second

Amended Plan. The Second Amended Plan was approved by the

bankruptcy court’s order entered February 3, 2011.

The IRS filed the Amended Claim on April 11, 2011. Through

3

 This total does not include interest to the petition date

in the amount of $462.12.

-4-
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

the Amended Claim the IRS asserted a total priority claim in the

amount of $61,735.00. The increase is accounted for as follows:

1. On March 12, 2011, following the examination of the

Jacksons’ return for the 2007 tax year, the IRS made an

additional assessment of $12,672.00, an increase of $7,673.00

over the amount included in the Initial Claim. 

2. On February 7, 2011, following the examination of the

Jacksons’ return for the 2008 tax year, the IRS made an

additional assessment of $6,071.00, an increase of $1,072.00 over

the amount included in the Initial Claim.

3. On November 22, 2010, following the filing of the 2009

Return, the IRS assessed $35,309.00 for the 2009 tax year, an

increase of $29,206.40 over the estimated liability included in

the Initial Claim. 

On January 5, 2015, nearly four years after the Amended

Claim had been filed, the Jacksons objected to the Amended Claim. 

In the Claim Objection, the Jacksons acknowledged that they were

obligated under the Second Amended Plan to pay, in full, the IRS

priority tax claim. They asserted, however, that the $35,309.00

assessment for the 2009 tax year included in the Amended Claim

constituted an untimely claim where the IRS did not assert the

assessment for the 2009 Return either before the governmental

claims bar date of August 23, 2010, or within 60 days after the

2009 Return was timely filed. The IRS countered that there was

no deadline for amending the Initial Claim and that the Initial

Claim was sufficient to put the Jacksons on notice that the IRS

intended to assert a claim for any future assessment to be made

for the 2009 tax year once the Jacksons had filed the 2009

-5-
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

Return. 

 The bankruptcy court overruled the Claim Objection, holding

that the claims bar date pertained only to the filing of the

Initial Claim and was “not intended to preclude an amendment.” 

Tr. of Feb. 19, 2015 H’rng at 11:2-8. The Jacksons filed a

timely notice of appeal.

II. JURISDICTION

The bankruptcy court had jurisdiction under 28 U.S.C.

§§ 1334 and 157(b)(2)(B). We have jurisdiction under 28 U.S.C.

§ 158.

III. ISSUE

Whether the bankruptcy court erred when it determined that

neither § 502(b)(9) nor Rule 3002(c)(1) rendered the Amended

Claim untimely. 

IV. STANDARDS OF REVIEW

We review de novo issues of statutory construction and

conclusions of law, including a bankruptcy court’s interpretation

of the Bankruptcy Code. Samson v. W. Capital Partners, LLC (In

re Blixseth), 684 F.3d 865, 869 (9th Cir. 2012)(per curiam). See

also Aspen Skiing Co. v. Cherrett (In re Cherrett), 523 B.R. 660,

667 (9th Cir. BAP 2014).

Similarly, we review a bankruptcy court’s interpretation and

application of the Rules de novo. All Points Capital Corp. v.

Meyer (In re Meyer), 373 B.R. 84, 87 (9th Cir. BAP 2007) (citing

Ruvacalba v. Munoz (In re Munoz), 287 B.R. 546, 550 (9th Cir. BAP

2002)).

De novo means that we review a matter anew, as if no

decision previously had been rendered. Dawson v. Marshall, 561

-6-
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

F.3d 930, 933 (9th Cir. 2009).

V. DISCUSSION

Section 502(b)(9) authorizes the bankruptcy court, upon the

filing of an objection, to disallow a claim that has not been

timely filed. 

Section 1308 was added to the Bankruptcy Code in 2005

through the enactment of the Bankruptcy Abuse Prevention and

Consumer Protection Act of 2005 and requires debtors to file tax

returns for all taxable periods ending during the 4-year period

ending on the date of the filing of the petition. At the same

time, § 502(b)(9) was amended to address the timeliness of claims

filed as a result of § 1308. 

[A] claim of a governmental unit shall be timely filed if it

is filed before 180 days after the date of the order for

relief or such later time as the [Rules] may provide and

except that in a case under chapter 13, a claim of a

governmental unit for a tax with respect to a return filed

under section 1308 shall be timely if the claim is filed on

or before the date that is 60 days after the date on which

such return was filed as required.

§ 502(b)(9) (emphasis added). 

Rule 3002(c)(1) was amended in 2008 to address the

implications of § 1308.

Rule 3002. Filing Proof of Claim or Interest

. . .

(c) TIME FOR FILING.

. . .

(1) A proof of claim filed by a governmental unit,

other than a claim resulting from a tax return filed

under § 1308, is timely if it is filed not later than

180 days after the date of the order for relief. A

proof of claim filed by a governmental unit for a claim

resulting from a tax return filed under § 1308 is

timely if it is filed no later than 180 days after the

date of the order for relief or 60 days after the date

of the filing of the tax return. The court may, for

cause, enlarge the time for a governmental unit to file

a proof of claim only upon motion of the governmental

-7-
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

unit made before expiration of the period for filing a

timely proof of claim.

As stated in the Advisory Committee note to the 2008 amendment to

Rule 3002:

Subdivision (c)(1) is amended to reflect the addition

of § 1308 to the Bankruptcy Code in 2005. This

provision requires that chapter 13 debtors file tax

returns during the pendency of the case, and imposes

bankruptcy-related consequences if debtors fail to do

so. Subdivision (c)(1) provides additional time for

governmental units to file a proof of claim for tax

obligations with respect to tax returns filed during

the pendency of a chapter 13 case. The amendment also

allows the governmental unit to move for additional

time to file a proof of claim prior to the expiration

of the applicable filing period.

The Jacksons assert on appeal that, because the 2009 Return

was filed as directed by § 1308, any claim by the IRS for the

assessed liability for the 2009 tax year would have been timely

only if the IRS had asserted that liability in a claim filed by

December 13, 2010, the date which is 60 days after the October

14, 2010 filing date of the 2009 Return.

The only question presented by this appeal is whether § 1308

establishes an absolute deadline for asserting the assessed

dollar amount of the 2009 tax liability. We conclude that it

does not.

It has long been established in the Ninth Circuit that an

amendment to a timely proof of claim “relates back” to a timely

filed claim when the original claim provided “fair notice of the

conduct, transaction, or occurrence that forms the basis of the

claim asserted in the amendment.” State of Cal. Bd. Of

Equalization v. Ulrich (In re Solari), 63 B.R. 115, 117 (1986),

quoting Pepperland, Inc. v. Westgate-California Corp. (In re

-8-
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

Westgate-California Corp.), 621 F.2d 983 (9th Cir. 1980). With

respect to federal taxes, a timely-filed claim based on estimated

personal income taxes can be amended. 

[T]he fact that the IRS filed a proof of claim for

income taxes put the debtors on notice that the IRS

might augment its claim, especially where it only

listed estimated liability. Therefore, equitable

principles reinforce a finding that the IRS may amend

its original proof of claim for income taxes to include

income taxes due for other years not initially listed.

In re Osborne, 159 B.R. 570, 577 (Bankr. C.D. Cal. 1993), aff’d

167 B.R. 698 (9th Cir. BAP 1994), aff’d 76 F.3d 306 (9th Cir.

1996).

There is no dispute that the Initial Claim was timely filed,

that it included an estimated liability for the 2009 tax year,

and that it explicitly stated the Initial Claim would be amended

after the 2009 Return was filed. There also is no dispute that

the Amended Claim explicitly indicated it amended the Initial

Claim and that it replaced the estimated claim with an assessed

liability based on the 2009 Return. We see no reason why the

Amended Claim cannot benefit from the relation back principle for

amended claims generally, particularly where the audits with

respect to the Jacksons’ 2007 and 2008 tax years were continuing. 

The Advisory Committee note to Rule 3002 suggests that,

because § 1308 provides for tax returns to be filed postpetition, the general 180-day claims deadline for governmental

units may not be sufficient. For that reason, the general claims

deadline for governmental units is automatically extended to a

date 60 days after the post-petition tax return is filed, if the

general deadline expired before that date. We see nothing in the

Bankruptcy Code or the Rules that precludes, as a matter of law,

-9-
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

the IRS from asserting a claim based on an estimate within the

general claims deadline, and then amending it once the debtor has

provided the information necessary for the actual assessment of

the tax liability.4 

VI. CONCLUSION

The bankruptcy court correctly overruled the Claim

Objection, holding that the Amended Claim is not an untimely

claim under § 502(b)(9), but instead is an amendment to the

previously-filed timely Initial Claim.

We AFFIRM.

4

 We recognize that in chapter 13 cases, claims bar dates

serve an expanded purpose in allowing debtors to formulate and

confirm a plan promptly to address their debts. As such, there

may be cases where it would be inequitable to allow an amendment

to a claim if there is an unreasonable delay. However, the

bankruptcy court was not asked to reach the equities of allowing

the Amended Claim under the circumstances of this case. We

observe that the Jacksons filed the Second Amended Plan after the

2009 Return was filed, at a time when they would have been aware

of their true liability for the 2009 tax year, yet they did not

address the increased liability in the Second Amended Plan. In

addition, for unknown reasons, the Jacksons waited until almost

four years after the Amended Claim was filed and within

approximately one month prior to the end of the plan term before

filing the Claim Objection.

-10-