In re: John Salvador v. United States

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAR 1 2024

MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

In re: JOHN PAUL SALVADOR,

No. 23-60008 Debtor.

JOHN PAUL SALVADOR, BAP No. CC-21-1252

BAP, Riverside Bankruptcy Court Appellant,

v. MEMORANDUM* UNITED STATES OF AMERICA,

Appellee.

Appeal from the Ninth Circuit Bankruptcy Appellate Panel

Taylor, Lafferty, and Faris, Bankruptcy Judges, Presiding

Submitted February 13, 2024** Pasadena, California

Before: W. FLETCHER, NGUYEN, and LEE, Circuit Judges.

John Salvador brought this adversary proceeding in his Chapter 7 *

This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. bankruptcy seeking a determination that his federal tax debts for 2003, 2004, 2006, and 2009 were dischargeable. The Bankruptcy Court granted summary judgment for the government, and the Bankruptcy Appellate Panel (BAP) affirmed. We have jurisdiction under 28 U.S.C. § 158(d), and we affirm.

Section 523(a)(1)(B)(i) of the Bankruptcy Code provides that tax debts are only dischargeable if, among other things, the debtor has filed a return. The statute did not originally define what qualified as a “return.” In the absence of a statutory definition, this court adopted the Tax Court’s Beard test to determine whether a document filed by the debtor qualifies as a return. See In re Hatton, 220 F.3d 1057, 1060–61 (9th Cir. 2000) (quoting Beard v. Comm’r of Internal Revenue, 82 T.C. 766 (1984), aff’d, 793 F.2d 139 (6th Cir. 1986) (per curiam)). The Beard Test has four elements: “First, there must be sufficient data to calculate tax liability; second, the document must purport to be a return; third, there must be an honest and reasonable attempt to satisfy the requirements of the tax law; and fourth, the taxpayer must execute the return under penalties of perjury.” Beard, 82 T.C. at 777.

Applying Beard, we held in In re Hatton that a document filed by a debtor after the IRS has already assessed his taxes does not generally qualify as a return because such a late filing is not an “honest and reasonable attempt” to comply with the tax law. 220 F.3d at 1061.1 Then in In re Smith we held that the Beard test remains unchanged, even though Congress later defined “return” in the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 (BAPCA). 828 F.3d 1094, 1097 (9th Cir. 2016);2 see also 11 U.S.C § 523(a)(*) (BACPA defining “return” in part as a “return that satisfies the requirements of applicable nonbankruptcy law (including applicable filing requirements).”).

Salvador concedes that he loses under this court’s precedent. He filed his purported returns after the IRS had already assessed his tax liability. Under a straightforward application of Beard and Smith, his filing does not qualify as a return and his tax debts are nondischargeable. We thus affirm the BAP’s decision upholding summary judgment for the government.

Salvador nevertheless brings this appeal to try to change the Ninth Circuit’s case law. He filed a petition for initial hearing en banc, urging this court to adopt the Eighth Circuit’s approach from In re Colsen, 446 F.3d 836 (8th Cir. 2006), a decision applying pre-BAPCA law. 3 On behalf of the court, we deny Salvador’s petition for initial hearing en banc, Dkt. No. 32. There is no intra-circuit split and adopting Salvador’s approach would only further entrench the existing inter-circuit split.

AFFIRMED.