PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

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No. 15-3761

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IN RE: THOMAS GIACCHI,

Appellant

THOMAS GIACCHI

v.

UNITED STATES OF AMERICA

DEPARTMENT OF THE TREASURY INTERNAL 

REVENUE SERVICE

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On Appeal from the United States District Court 

for the Eastern District of Pennsylvania

(D. C. Civil Action No. 5-14-cv-01156)

District Judge: Honorable Joseph F. Leeson, Jr.

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Submitted under Third Circuit LAR 34.1(a)

on June 22, 2016
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Before: *FISHER, GREENAWAY, JR. and ROTH, Circuit 

Judges

(Opinion filed: May 5, 2017)

David F. Dunn

David Dunn Law Offices, PC

1248 W. Hamilton Street

Allentown, PA 18102

Counsel for Appellant

Julie C. Avetta

Ellen P. DelSole

Gilbert S. Rothenberg, Esq.

United States Department of Justice

Tax Division

95 Pennsylvania Avenue, N.W.

P.O. Box 502

Washington, DC 20044

Counsel for Appellee

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OPINION OF THE COURT

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* The Honorable D. Michael Fisher assumed senior status on 

February 1, 2017
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ROTH, Circuit Judge

In this appeal, we must determine whether Internal 

Revenue Service Forms 1040, filed after the IRS has made an 

assessment of the taxpayer’s liability, constitute “returns” for 

purposes of determining the dischargeability in bankruptcy of 

tax debts under 11 U.S.C. § 523(a)(1)(B). Thomas Giacchi 

did not file tax returns on time for the years 2000, 2001, or 

2002. Instead, he filed the forms years after they were due 

and after the Internal Revenue Service had assessed a liability 

against him. In 2010 and 2012, Giacchi filed for bankruptcy,

and in 2013 he sought to discharge his tax liability for the 

years 2000, 2001, and 2002. The District Court affirmed the 

Bankruptcy Court’s order denying the discharge. We will 

affirm the District Court’s ruling. 

I. Background 

Giacchi failed to file Forms 1040 for 2000, 2001, and 

2002 in a timely manner.1 In 2004, the IRS investigated and 

assessed a tax liability against Giacchi for 2000 and 2001. 

Approximately one month after the IRS made those tax 

assessments, Giacchi filed Forms 1040 for 2000 and 2001. 

However, he did not file his overdue Form 1040 for 2002 at 

that time. The IRS assessed his 2002 tax liability in 2005, 

and Giacchi submitted a Form 1040 for 2002 in 2006. Based 

on information in the forms Giacchi filed, the IRS abated a 

portion of the assessment it had made. 

In 2010, Giacchi filed a voluntary Chapter 7 

bankruptcy petition and received a discharge of his 

 

1 A Form 1040 is a document with which an individual 

taxpayer reports to the federal government his or her federal 

income tax liability.
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Pennsylvania tax liability. In 2012, Giacchi filed a Chapter 

13 bankruptcy petition and brought this adversary proceeding 

against the federal government to seek a judgment that his 

assessed federal income tax liabilities for the years 2000, 

2001, and 2002 had been discharged in his Chapter 7 

bankruptcy. The Bankruptcy Court concluded that the tax 

debt in question, owed by Giacchi to the IRS, was nondischargeable under 11 U.S.C. § 523(a)(1)(B) because 

Giacchi had failed to file tax returns for 2000, 2001, and 

2002, and Giacchi’s belatedly filed documents were not 

“returns” within the meaning of § 523(a)(1)(B) and other 

applicable law. The District Court affirmed. Giacchi

appeals.

II. Discussion 

A. Standard of Review 

We have jurisdiction over the final order of the District 

Court, entered in a bankruptcy proceeding, pursuant to 28 

U.S.C. §§ 158(d)(1) and 1291. Our standard of review is the 

same as that exercised by the District Court over the decision 

of the Bankruptcy Court.2 Accordingly, we review findings 

of fact for clear error and exercise plenary review over 

questions of law.3

B. Dischargeability

The general rule—that a debtor who files a Chapter 7 

bankruptcy petition is discharged from personal liability for 

 

2

In re Schick, 418 F.3d 321, 323 (3d Cir. 2005).

3

In re Fruehauf Trailer Corp., 444 F.3d 203, 209-10 (3d Cir. 

2006).
5

all debts incurred before the filing of the petition—is subject 

to several exceptions.4 Section 523(a)(1)(B)(i) of the 

Bankruptcy Code excepts from discharge “any . . . debt for a 

tax . . . with respect to which a return, or equivalent report or 

notice, if required, . . . was not filed or given.”5 It is 

undisputed that Giacchi filed his Forms 1040 after their due

dates. At issue is whether those belatedly filed forms 

constitute “returns.” If they do, Giacchi’s tax debts are not

subject to § 523(a)(1)(B)(i)’s exception from discharge; if the 

forms do not, Giacchi’s tax debts are excepted from

discharge.6 This is an issue of first impression for this Court.

In 2005, the Bankruptcy Abuse Prevention and 

Consumer Protection Act (BAPCPA)7added, for the first 

time, a definition of “return” to the Bankruptcy Code. The 

definition reads, in pertinent part, “[f]or purposes of this 

subsection, the term ‘return’ means a return that satisfies the 

requirements of applicable nonbankruptcy law (including 

applicable filing requirements).”8 Several of our sister 

circuits have interpreted “applicable filing requirements” to 

include filing deadlines so that late-filed forms cannot be 

 

4 11 U.S.C. §§ 727(b), 523(a)(1); In re Hatton, 220 F.3d 

1057, 1059-60 (9th Cir. 2000). 

5 11 U.S.C. § 523(a)(1)(B)(i).

6 Section 523(a)(1)(B)(ii) prohibits the discharge of tax 

liability for which a return was filed within two years 

preceding the petition for bankruptcy. Because Giacchi 

petitioned for bankruptcy more than two years after filing his 

tax forms, this provision does not apply. 11 U.S.C. § 

523(a)(1)(B)(ii).

7 Pub. L. 109–8, 119 Stat. 23 (2005). 

8 11 U.S.C. § 523(a) (referred to as the “hanging paragraph”). 
6

“returns.”9 The government notes that this approach, called 

the “one-day-late rule,” fails to harmonize provisions of § 523 

that contemplate some late-filed forms are “returns.”10 We 

need not reach the question of whether the “one-day-late rule” 

is correct. Instead, we join our sister circuits in applying 

Beard v. Commissioner of Internal Revenue, which sets forth 

“the requirements of applicable nonbankruptcy law[,]” and 

we conclude that Giacchi’s tax debts are non-dischargeable.11

Under Beard, a document must meet four requirements 

to be a tax return: (1) it must purport to be a return, (2) it 

must be executed under penalty of perjury, (3) it must contain 

sufficient data to allow calculation of tax, and (4) it must 

represent an honest and reasonable attempt to satisfy the 

requirements of the tax law.12 Only the fourth factor is at 

issue here: whether Giacchi’s Forms 1040 represent an 

honest and reasonable effort to comply with the tax law. 

Forms filed after their due dates and after an IRS 

assessment rarely, if ever, qualify as an honest or reasonable 

attempt to satisfy the tax law.13 This is because the purpose 

of a tax return is for the taxpayer to provide information to 

 

9 See In re Fahey, 779 F.3d 1, 4 (1st Cir. 2015); In re Mallo, 

774 F.3d 1313, 1317 (10th Cir. 2014), cert. denied sub nom. 

Mallo v. I.R.S., 135 S. Ct. 2889 (2015); In re McCoy, 666 

F.3d 924, 932 (5th Cir. 2012).

10 11 U.S.C. § 523(a)(1)(B)(ii).

11 Beard v. Comm’r, 82 T.C. 766, 777 (T.C. 1984), aff’d, 793 

F.2d 139 (6th Cir. 1986).

12 See In re Justice, 817 F.3d 738, 741 (11th Cir. 2016); In re 

Hindenlang, 164 F.3d 1029, 1033 (6th Cir. 1999).

13 In re Moroney, 352 F.3d 902, 905-06 (4th Cir. 2003). 
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the government regarding the amount of tax due.14 If a 

taxpayer does not file a return, the IRS is required to 

independently assess the taxpayer’s liability, as it did when 

Giacchi failed to timely file his 2000, 2001, or 2002 tax 

returns. Once the IRS assesses the taxpayer’s liability, a 

subsequent filing can no longer serve the tax return’s purpose, 

and thus could not be an honest and reasonable attempt to 

comply with the tax law.15 Here, there is no dispute that 

Giacchi failed to file timely returns, and that, as a result of 

Giacchi’s failure, the IRS had to estimate his taxes without 

his assistance. 

Giacchi’s argument that his filings constitute tax 

returns is two-fold. First, Giacchi argues that the tardiness of 

his filings does not render them any less of an honest and 

reasonable attempt to comply with tax law, relying on the 

Eighth Circuit’s holding in In re Colsen that the “honest and 

reasonable attempt” inquiry focuses on the content of the 

form, not the circumstances of its filing.16 We decline to 

adopt the Eighth Circuit’s approach, and agree with the 

weight of authority that the timing of the filing of a tax form 

 

14 United States v. Galletti, 541 U.S. 114, 122 (2004) (“‘The 

Federal tax system is basically one of self-assessment,’

whereby each taxpayer computes the tax due and then files 

the appropriate form of return along with the requisite 

payment.” (quoting 26 CFR § 601.103(a) (2003))).

15 Justice, 817 F.3d at 744; In re Moroney, 352 F.3d at 906; 

Hindenlang, 164 F.3d at 1034-35.

16 In re Colsen, 446 F.3d 836, 840 (8th Cir. 2006); see In re 

Payne, 431 F.3d 1055, 1061-62 (7th Cir. 2005) (Easterbrook, 

J., dissenting).
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is relevant to determining whether the form evinces an honest 

and reasonable attempt to comply with tax law.17 

Second, Giacchi asserts that, because his late-filed 

forms showed less tax liability and the IRS abated the tax 

assessment based on those filings, the filings served a tax 

purpose and thus constitute returns. This argument misses the 

point. Giacchi failed to provide the IRS information to 

determine his tax liability so that the IRS had to estimate his 

taxes without his assistance; Giacchi cannot now seek to 

benefit from the IRS’s imprecise estimate. Giacchi’s belated 

filings are merely self-serving bids to reduce his tax 

liabilities, rather than attempts to comply with the 

requirements and objectives of prompt self-reporting and selfassessment.18

 

Finally, Giacchi suggests in passing that his 

delinquency in filing should be excused because of his 

“emotional state” during those years. Although 

“[c]ircumstances . . . might demonstrate that the debtor, 

despite his delinquency, had attempted in good faith to 

 

17 See Comm’r v. Lane-Wells Co., 321 U.S. 219, 223 (1944); 

Justice, 817 F.3d at 746; Payne, 431 F.3d at 1057-60; 

Moroney, 352 F.3d at 907; Hatton, 220 F.3d at 1060-61; 

Hindenlang, 164 F.3d at 1034-35.

18 Moroney, 352 F.3d at 906; see Justice, 817 F.3d at 744.
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comply with the tax laws[,]” Giacchi’s “emotional state” 

during the tax years in question is not one of them.19 

III. Conclusion 

We hold that Giacchi’s belated filings after assessment 

are not an honest and reasonable effort to comply with the tax 

law under the Beard test and, as such, the filings do not 

constitute returns. Because Giacchi’s tax debts for tax years 

2000, 2001, and 2002 are debts for tax obligations for which 

no return was filed, the debts are not dischargeable in 

bankruptcy pursuant to 11 U.S.C. § 523(a)(1)(B). 

Accordingly, we will affirm the order of the District Court. 

 

19 Justice, 817 F.3d at 746 n.8 (citing Moroney, 352 F.3d at 

907); Moroney, 352 F.3d at 906 (rejecting the proffered 

justification that the taxpayer “simply did not ‘get around to 

filing his tax returns.’”); In re Payne, 431 F.3d 1055, 1057, 

1059-60 (7th Cir. 2005) (rejecting the proposed excuse that 

the taxpayer was having a “difficult” period in his life).