United States Bankruptcy Appellate Panel

FOR THE EIGHTH CIRCUIT

 

No. 98-6012NI

 

In re: *

*

RICHARD D. RAYMON, *

*

Debtor. *

*

INTERNAL REVENUE SERVICE, * Appeal from the United

States 

* Bankruptcy Court for the

Appellant, * Northern

District of Iowa

*

v. *

*

RICHARD D. RAYMON, *

*

Appellee. *

 

Submitted: February 5, 1998 

Filed: February 19, 1998

 

Before KRESSEL, WILLIAM A. HILL and SCHERMER, United States

Bankruptcy Judges

SCHERMER, Bankruptcy Judge:

The United States of America, on behalf of the Internal

Revenue Service (the “Service”) appeals an order granting

Debtor’s Motion for Procedural Sanctions and limiting the

Service’s ability to admit certain evidence at trial on the

Debtor’s declaratory action to determine dischargeability of

certain tax liabilities. Because we find that the Service’s
 The Honorable Paul J. Kilburg, United States Bankruptcy Judge for the Northern 1

District of Iowa.

 Interestingly, the Service acknowledged in its Motion to Extend Time that Rule 8002 of 2

the Federal Rules of Bankruptcy Procedure controlled its appeal and that it believed the ten-day

time period for appeals under Rule 8002 expired on January 3, 1998. In the prayer for relief of its

2

Notice of Appeal was untimely, we hold that this court lacks

jurisdiction to hear this appeal, and therefore, we dismiss the

appeal.

 This appeal arises out of a rather protracted

dischargeabilty action filed by the Debtor to determine that

certain tax liabilities had been paid and that any remaining

tax liabilities were thereafter more than three years old on

the date of filing the Debtor’s bankruptcy petition. Thus, the

Debtor asserted that such taxes were not excepted from

discharge under 11 U.S.C. § 523(a)(1)(A). Throughout the

bankruptcy litigation, the bankruptcy court scheduled and then

granted continuances to the Service to meet various deadlines

for production of tax-payment information requested by the

Debtor. One year after the court’s first order requiring the

Service to produce the requested documents, the Debtor filed

a Motion for Summary Judgment, or for Procedural Sanctions

against the Service, seeking sanctions because the Service

continued to delay in its compliance with discovery orders. 

On December 23, 1997, the United States Bankruptcy Court

for the Northern District of Iowa entered an order granting

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Debtor’s Motion for Procedural Sanctions against the Service

and limiting the evidence the Service could admit at trial as

a consequence for its failures to meet the various discovery

deadlines. On January 5, 1998, the Service filed a Motion for

Extension of Time to Appeal the December 23, 1997 Order. In

its motion, the Service requested that the appeal deadline be

extended through January 13, 1998. 

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Motion to Extend Time, the Service requested that “the time for filing Appeal be extended for an

additional ten days, from January 3, 1998 up to and including January 13, 1998.” Yet, the

Service did not file its Motion to Extend until January 5, 1998. 

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On January 5, 1998, the Debtor also filed a Motion to

Reconsider or to Expand Findings of Fact with respect to the

December 23, 1997 Order. The Debtor sought to have the court

clarify or supplement its December 23, 1997 Order by addressing

whether the
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Service’s failure to meet discovery deadlines was deliberate

in light of the Debtor’s allegations that the Service

improperly altered certain documents. 

On January 8, 1998, the bankruptcy court denied Debtor’s

Motion to Reconsider, and in a separate order of the same date,

denied the Service’s request for additional time to appeal,

holding that the Service’s request for additional time to

appeal became moot as a result of the Debtor’s Motion to

Reconsider. Specifically, and in relevant part, the Order

denying an extension of time to appeal stated: 

The United States on behalf of the Internal

Revenue Service filed this Motion for Extension of

Time for Appeal on January 5, 1998. On that same

date, Plaintiff/Debtor Richard D. Raymon filed a

Motion to Reconsider or to Expand Findings of Fact.

Pursuant to Fed. R. Bankr. P. 8002(b), the time for

appeal for all parties runs from the entry of the

order disposing of Debtor’s motion. As the 10-day

time for appeal will now run beyond January 13, 1998,

it is unnecessary to consider the IRS’ Motion for

Extension of Time for Appeal to January 13, 1998.

Therefore the Motion is moot. 

The Court entered its Orders of January 8, 1998 on January

13, 1998, and thereafter, on January 20, 1998, the Service

filed its Notice of Appeal. 

Bankruptcy Rule 8002(a) requires a notice of appeal to be

filed within ten days of the date of entry of the judgment,

order or decree appealed from. Once the time for filing an

appeal has expired, “an appellate court is without authority

to exercise its jurisdiction.” Vogelsang v. Patterson Dental

Co., 904 F.2d 427, 429 (8th Cir. 1990); accord Crockett v.

Lineberger, 205 B.R. 580, 581 (B.A.P. 8th Cir. 1997). In this

case, the Service filed its Notice of Appeal from the December
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23, 1997 Order on January 20, 1998, clearly beyond the ten-day

period for appeal under Bankruptcy Rule 8002(a). This court

has recently addressed the issue of untimely appeals, and we

have consistently held that we lack subject matter jurisdiction

where a notice of appeal is untimely. See Luedtke v.

Nationsbanc Mortgage Corp. (In re Luedtke), 215 B.R. 390, 391

(B.A.P. 8th Cir. 1997); United States v. Henry Bros.

Partnership (In re Henry Bros. Partnership), 214 B.R. 192, 196

(B.A.P. 8th Cir. 1997); and Crockett, 205 B.R. at 581 (“Rule

8002(a)’s ten-day time frame is both ‘mandatory
6

and jurisdictional.’” quoting Carnahan, Carnahan & Hickle v.

Rozark Farms, Inc. (In re Rozark Farms, Inc.), 139 B.R. 463,

465 (E.D. Mo. 1992)). 

Because the Service filed a Motion to Extend Time to File

Appeal, however, we must consider whether that motion preserved

the Service’s otherwise untimely appeal. Similarly, because

the Debtor filed a Motion to Alter the judgment, we must also,

and separately, consider whether the Debtor’s Motion renders

this appeal timely. 

The Service’s Request for Extension of Time

Under Bankruptcy Rule 8002(c), the bankruptcy court may

extend the time for filing a notice of appeal for a period not

to exceed 20 days from the time otherwise prescribed for

appeal, but may do so only if such request is made before the

time for filing a notice of appeal has expired. See Hartford

Casualty Insur. Co. v. Food Barn Stores, Inc. (In re Food Barn

Stores, Inc.), 214 B.R. 197, 199 (B.A.P. 8th Cir. 1997). In

this case, the Service made its request to extend the time for

appeal of the December 23, 1997 Order on January 5, 1998.

Under Bankruptcy Rule 9006(a), “[w]hen the period of time

prescribed or allowed is less than 8 days, intermediate

Saturdays, Sundays, and legal holidays shall be excluded in the

computation.” Thus, the ten-day period for appeal, and the ten

days within which to timely request an extension to appeal,

expired on January 2, 1998. The request to extend was,

therefore, untimely. 

Under Bankruptcy Rule 8002(c), the court may grant a

request to extend the time for filing a notice of appeal even

where the request is made after expiration of the ten-day

appeal time, but the court may only do so upon a showing of

excusable neglect. Fed. R. Bankr. P. 8002(c). There is no
7

evidence in the record to support extension of the deadline

because of excusable neglect. See Harlow Fay, Inc. v. Fed.

Land Bank of St. Louis (In re Harlow Fay, Inc.), 993 F.2d 1351,

1353 (8th Cir. 1993)(applying Supreme Court standard for

excusable neglect announced in Pioneer Invest. Servs. v.

Brunswick Assoc. Ltd. Partnership, 507 U.S. 380, 113 S.Ct.

1489, (1993) and citing cases holding that employee turnover,

attorney’s busy practice, upheaval in law practice and

confusion from moving law offices are not excusable
8

neglect (citations omitted)). Thus, the Service’s untimely

Motion to Extend Time did not extend the appeal period. 

The Debtor’s Motion to Alter

The Debtor’s Motion to Alter the December 23, 1997 Order

also fails to aid the Service’s appeal efforts because that

motion too, was not filed within ten days of the December 23,

1997 Order. Ordinarily, under Bankruptcy Rule 8002(b), a

motion to alter or amend a judgment (as well as a motion for

new trial or any similar motion specified in Rule 8002(b) (1)

through (4)) suspends the time for appeal by all parties until

disposition of the last of those post-judgment motions.

Indeed, Bankruptcy Rule 8002(b)(4) states that a notice of

appeal filed before disposition of a pending post-judgment

motion is ineffective to appeal the challenged judgment until

entry of an order disposing of the last of such motions. See

also Design Classics, Inc. v. Westphal (In re Design Classics,

Inc.), 788 F.2d 1384, 1385 (8th Cir. 1986) (holding that

notice of appeal was not effectively taken where appeal was

filed simultaneously with timely motion for reconsideration

because when timely motion for reconsideration is filed, a

notice of appeal filed prior to disposition of the motion to

reconsider has no effect). 

To suspend the time for appeal through a Rule 8002(b)

post-judgment motion, however, it is essential that such motion

itself be filed within ten days of entry of the order

challenged. In this case, because the Debtor filed its motion

to alter the judgment on January 5, 1998, three days after the

ten-day deadline, the Debtor’s motion did not suspend the time

for appeal and cannot be a basis for asserting jurisdiction

over this appeal. 
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For the foregoing reasons, this court lacks jurisdiction

to entertain the Service’s appeal, and this appeal is

accordingly dismissed as untimely.
10

A true copy.

Attest:

CLERK, U.S. BANKRUPTCY APPELLATE PANEL,

EIGHTH CIRCUIT