Anthony Gould v. United States

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

In re: ANTHONY S. GOULD, 

Debtor,

ANTHONY S. GOULD,

Appellant, No. 09-60008 v.  BAP No. NC-08-1100-JuMkD UNITED STATES OF AMERICA,

Appellee, ORDER and

DEVIN DERHAM-BURK, Chapter 13;

UNITED STATES TRUSTEE,

Trustees. 

Appeal from the Ninth Circuit Bankruptcy Appellate Panel

Markell, Dunn, and Jury, Bankruptcy Judges, Presiding Argued and Submitted

February 9, 2010—San Francisco, California Filed April 19, 2010

Before: Diarmuid F. O’Scannlain, Stephen S. Trott and Richard A. Paez, Circuit Judges.

COUNSEL

David A. Boone and Leela V. Menon, Law Offices of David A. Boone, San Jose, California, for the appellant.

5661 5662 IN RE GOULD

Randolph L. Hutter, Department of Justice, Tax Division, Washington D.C., for the appellee.

ORDER

The central issue in this case is whether or not the Bank- ruptcy Court erred in denying the government’s motion to lift the automatic stay to allow the Internal Revenue Service “IRS” to offset the debtor’s income tax overpayment against his outstanding federal income tax liabilities pursuant to 11 U.S.C. § 553 and 26 U.S.C. § 6402(a). For the reasons given by our Bankruptcy Appellate Panel in In re Gould, 401 B.R. 415 (B.A.P. 9th Cir. 2009), we reverse the decision of the Bankruptcy Court, In re Gould, 389 B.R. 105 (Bankr. N.D. Cal. 2008), and remand for further proceedings. We note that for cases filed after October 17, 2005, 11 U.S.C. § 362(b)(26) permits the IRS to setoff a pre-petition income tax overpay- ment against a pre-petition income tax liability without seek- ing relief from the automatic stay.

REVERSED and REMANDED.