## 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 Interna l Revenue Service (the “Service”) appeals an order grantin g Debtor’s Motion for Procedural Sanctions and limiting th e Service’ s ability to admit certain evidence at trial on th e Debtor’s declaratory action to determine dischargeability o f certain tax liabilities. Because we find that the Service’sThe 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 lack s jurisdictionto hear this appeal, and therefore, we dismiss th e appeal.
Thi s appeal arises out of a rather protracte d discha rgeabiltyaction filed by the Debtor to determine tha t cer taintax liabilities had been paid and that any remainin g tax liabilities were thereafter more than three years old o n the date of filing the Debtor’s bankruptcy petition. Thus, th e Debtor asserted that such taxes were not excepted fro m discha rge under 11 U.S.C. § 523(a)(1)(A). Throughout th e bankruptcy litigation, the bankrup tcy court scheduled and then gr anted continuances to the Service to meet various deadlines for production of tax-payment information requested by th e De btor. One year after the court’s first order requiring the Servic e to produce the requested documents, the Debtor file d a Moti on for Summary Judgment, or for Procedural Sanction s aga inst the Service, seeking sanctions because the Servic e continued to delay in its compliance with discovery orders.

OnDecember 23, 1997, the United States Bankruptcy Cour t for the Northern District of Iowa entered an order grantin g 1 De btor’s Motion for Procedural Sanctions against the Servic e an d limiting the evidence the Service could admit at trial as a c onsequence for its failures to meet the various discover y deadlines. On January 5, 1998, th e Service filed a Motion for Extensio nof Time to Appeal the December 23, 1997 Order. I n it s motion, the Service requested that the appeal deadline be extended through January 13, 1998. 2Motion 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. 3 On J anuary 5, 1998, the Debtor also filed a Motion t o Reconsider or to Expand Findings of Fact with respect to th e De cember 23, 1997 Order. The Debtor sought to have the court clarify or supplement its December 23, 1997 Order by addressin g whether the4

Se rvice’s failure to meet discovery deadlines was deliberat e in lig ht of the Debtor’s allegations that the Servic e improperly altered certain documents.

OnJanuary 8, 1998, the bankruptcy court denied Debtor’ s Motionto Reconsider, and in a separate order of the same date , denied the Service’s request for additional time to appeal , holdin g that the Service’s request for additional time t o appeal b ecame moot as a result of the Debtor’s Motion t o Reconsider. Specifically, and in relevant part, the Orde r denying an extension of time to appeal stated:

The U nited States on behalf of the Interna l Revenue Service filed this Motion for Extension o f Ti me for Appeal on January 5, 1998. On that sam e date, Plaintiff/Debtor Richard D. Raymon filed a Mo tionto Reconsider or to Expand Findings of Fact
. Pursuant to Fed. R. Bankr. P. 8002(b), the time fo r appeal for all parties runs from the entry of th e or der disposing of Debtor’s motion. As the 10-da y time for appeal will now run beyond January 13 , 1998, it is unnecessary to consider the IRS’ Motion fo r Ex tensionof Time for Appeal to January 13, 1998
. Therefore the Motion is moot. The Court entered its Orders of January 8, 1998 on Janua ry 13, 1998, and thereafter, on January 20, 1998, the Servic e filed its Notice of Appeal. Bankruptcy Rule 8002(a) requires a notice of appeal to be filed w ithin ten days of the date of entry of the judgment , order o r decree appealed from. Once the time for filing a n appeal has expired, “an appellate court is without authorit y to exercise its jurisdiction.” Vo gelsang 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 thi s case, the Service filed its Notice of Appeal from the December5

23, 1997 Order on January 20, 1998 , clearly beyond the ten-day pe riod for appeal under Bankruptcy Rule 8002(a). This court has recently addressed the issue of untimely appeals, and w e have consistently held that we lack subject matter jurisdictio n wher e a notice of appeal is untimely. See Luedtke v
. Na tionsbanc 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. Par tnership ), 214 B.R. 192, 196 (B.A.P. 8th Cir. 1997); and Crockett , 205 B.R. at 581 (“Rul e 8002(a)’s ten-day time frame is both ‘mandatory6

an djurisdictional.’” 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 file d a Motion to Extend Time to File Appeal, however, we must consider whether that motion preserve d th e Service’s otherwise untimely appeal. Similarly, becaus e the Debtor filed a Motion to Alter the judgment, we must also, an dseparately, consider whether the Debtor’s Motion render s this appeal timely. The Service’s Request for Extension of Time
Under Bankruptcy Rule 8002(c), the bankruptcy court ma y extend the time for filing a notic e of appeal for a period not to ex ceed 20 days from the time otherwise prescribed fo r ap peal, but may do so only if such request is made before the ti me for filing a notice of appeal has expired. See Hartford Casualty Insur. Co. v. Food Barn S tores, Inc. ( In re Food Barn Stores, Inc. ), 214 B.R. 197, 199 (B.A.P. 8th Cir. 1997). I n this case, the Service made its re quest 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 tim e prescr ibedor allowed is less than 8 days, intermediat e Saturdays, Sundays, and legal holidays shall be excluded in th e computation.” Thus, the ten-day period for appeal, and the te n days wit hin which to timely request an extension to appeal , expiredon January 2, 1998. The request to extend was , therefore, untimely.
Under Bankruptcy Rule 8002(c), the court may grant a re quest to extend the time for filing a notice of appeal even where the request is made after expiration of the ten-da y ap peal time, but the court may only do so upon a showing o f excusa ble neglect. Fed. R. Bankr. P. 8002(c). There is n o7

evidence in the record to support extension of the deadlin e be cause of excusable neglect. See Harlow Fay, Inc. v. Fed
. LandBank of St. Louis ( In re Harlow Fay, Inc. ), 993 F.2d 1351 , 1353 (8th Cir. 1993)(applying Supreme Court standard fo r excu sable neglect announced in Pioneer Invest. Servs. v
. Brunsw ick Assoc. Ltd. Partnership , 507 U.S. 380, 113 S.Ct
. 1489, (1993) and citing cases hol ding that employee turnover, attor ney’s busy practice, upheaval in law practice an d confusion from moving law offices are not excusable8

neglec t (citations omitted)). Thus, the Service’s untimel y 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 fai ls to aid the Service’s appeal efforts because tha t mo tion too, was not filed within ten days of the December 23, 1997 O rder. Ordinarily, under Bankruptcy Rule 8002(b), a motion to alter or amend a judgment (as well as a motion fo r ne w 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 o f app eal filed before disposition of a pending post-judgmen t mo tion 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 tha t notice o f appeal was not effectively taken where appeal wa s fi ledsimultaneously with timely motion for reconsideratio n becaus e when timely motion for reconsideration is filed, a notice of appeal filed prior to disposition of the motion t o reconsider has no effect).

To su spend the time for appeal through a Rule 8002(b ) post-judgment motion, however, it is essential that such motio n itse lf be filed within ten days of entry of the orde r challenged. In this case, because the Debtor filed its motion to alter the judgment on January 5, 1998, three days after th e ten-day deadline, the Debtor’s mot ion did not suspend the time for appe al and cannot be a basis for asserting jurisdictio n over this appeal.9

For the foregoing reasons, this court lacks jurisdictio n to ent ertain the Service’s appeal, and this appeal i s accordingly dismissed as untimely.10

A true copy.

Attest:
CLERK, U.S. BANKRUPTCY APPELLATE PANEL, EIGHTH CIRCUIT