[*886] Isham B. Bradley, Brentwood, TN, for Debtor.

Martha J. Weber, Special Assistant United States Attorney, Nashville, TN, for Defendant.

MEMORANDUM

KEITH M. LUNDIN, Bankruptcy Judge.

The issue is whether the three year "look back" for the nondischargeability of taxes under 11 U.S.C. § 523(a)(1)(A)^[1] (incorporating 11 U.S.C. § 507(a)(8)(A)(i)^[2]) is presumed or supplied by this debtor's prior bankruptcy case during the three year period. It is not. To prepare the government's equitable arguments for trial, it is also determined that federal income taxes for 1986 were a prepetition claim in the bankruptcy case filed by this debtor on February 9, 1987. The following are findings of fact and conclusions of law. FED.R.BANKR.P. 7052.

I.

Francis V. Nolan, Jr. filed his first Chapter 7 petition on February 9, 1987. Nolan's 1986 tax return was due April 15, 1987. Nolan received an extension and eventually filed his 1986 tax return on October 19, 1989. The IRS made an assessment on December 4, 1989.^[3] On May 25, 1993, Nolan received a[*887] discharge.^[4]

On August 18, 1995, Nolan filed his second Chapter 7 petition. In this adversary proceeding, Nolan argues for summary judgment that his federal income taxes for 1986 are dischargeable because 1986 taxes are now outside the three year "look back" in 11 U.S.C. §§ 523(a)(1)(A) and 507(a)(8)(A)(i). The government moved for summary judgment that the three year look back is tolled or extended by 11 U.S.C. § 108(c)^[5] for the period (and then some) during which Nolan was a debtor in the prior bankruptcy case or is enlarged by "equitable tolling" under 11 U.S.C. § 105(a).^[6]

II.

This complicated interaction between bankruptcy and tax law is now well worn by reported opinions. Two schools of thought have emerged:

1. A majority, including courts of appeals in the Third^[7], Seventh^[8], Ninth^[9] and Tenth^[10] Circuits toll or enlarge the time periods for the nondischargeability of taxes in § 507(a)(8)(A) based on a prior bankruptcy. Among these courts there are two theories — some rely on the extension of time provisions in § 108(c) of the Bankruptcy Code^[11]; others invoke the equitable powers of bankruptcy courts under § 105(a).^[12]

2. A minority of courts led by Bankruptcy Judge Benjamin Cohen in the Northern District of Alabama hold that the time periods in § 507(a)(8)(A) are statutory elements of the cause of action in § 523(a)(1) and are not automatically enlarged or tolled by a prior bankruptcy case.^[13] These courts recognize that equitable principles may supply or raise a presumption with respect to a timeliness element of the government's cause of action under § 523(a)(1), but only upon proof of debtor misconduct or abuse.

For the many reasons discussed by Judge Cohen in In re Turner, 182 B.R. 317[*888] (Bankr.N.D.Ala.1995), adhered to on reconsideration, 195 B.R. 476 (Bankr.N.D.Ala. 1996), and In re Gore, 182 B.R. 293 (Bankr. N.D.Ala.1995), and by Judge Graves in In re Pastula, 203 B.R. 941 (Bankr.E.D.Mich. 1997), the three year look back for nondischargeability of taxes in § 507(a)(8)(A)(i) is not tolled or extended merely because the debtor had a prior bankruptcy case during that three year period. The arguments are summarized below.

A.

The three year look back in § 507(a)(8)(A)(i) is a substantive element of the government's cause of action under § 523(a)(1)(A), not a statute of limitations.^[14] Ordinary principles of "equitable tolling" employed by many of the reported decisions are not applicable.^[15] This element of the government's cause of action can be supplied by a court applying equitable principles only upon proof of substantial debtor misconduct.^[16] The courts that have allowed "equitable tolling" without proof of debtor misconduct have mistaken the three year look back for a statute of limitations. If this debtor committed wrongful acts justifying the equitable relief sought by the IRS, 11 U.S.C. § 105 provides a remedy.^[17] Nothing in § 105 provides that remedy based only on a permitted bankruptcy filing^[18] during the three year period in § 507(a)(8)(A)(i).

B.

Sections 523(a)(1)(A) and 507(a)(8)(A)(i) are not ambiguous. Resort to legislative history to support exceptions to or extensions of the three year look back is not appropriate. These fundamental bankruptcy tax provisions are the result of "`a series of carefully crafted compromises.'" In re Turner, 195 B.R. at 486 (quoting Community for Creative Non-Violence v. Reid, 490 U.S. 730, 748 n. 14, 109 S.Ct. 2166, 2177 n. 14, 104 L.Ed.2d 811 (1989)). Enlargement or tolling of the three years based on legislative history is not indicated because the statute as written leads to no absurd results.^[19]

[*889] C.

11 U.S.C. § 108(c) is not applicable by its own terms to this action under § 523(a)(1). Section 108(c) affects the expiration of some time periods under applicable "nonbankruptcy law." 11 U.S.C. § 523(a)(1) is not "nonbankruptcy law."^[20] The three year look back in § 507(a)(8)(A)(i) is not extended or tolled by § 108(c). That provisions of the Internal Revenue Code such as 26 U.S.C. § 6503^[21] may be extended by 11 U.S.C. § 108(c)^[22] says nothing about the dischargeability in bankruptcy of taxes that have aged beyond the three years in § 523(a)(1) and § 507(a)(8)(A)(i).^[23]

D.

11 U.S.C. § 523(b)^[24] is unambiguous proof that Congress contemplated and empowered debtors to discharge taxes in successive bankruptcy cases. Notwithstanding the ruminations in some reported decisions,^[25] it is not plausible that Congress overlooked[*890] the possibility that debtors would file successive bankruptcy cases in which the automatic stay would interrupt the collection efforts of the IRS. Section 523(b) states that non-fraud taxes^[26] declared nondischargeable in a prior bankruptcy case can be discharged in a subsequent bankruptcy case. Section 523(b) necessarily contemplates more than one bankruptcy case and more than one automatic stay.

Section 523(b) is part of the complex balance of interests in the tax provisions of the Bankruptcy Code.^[27] The cross-reference in § 523(b) to § 523(a)(1) incorporates the cross-reference in § 523(a)(1) to § 507(a)(8)(A)(i). Put another way, the three year characteristic of a nondischargeable tax claim under § 523(a)(1) is directly implicated in § 523(b) analysis — when a taxpayer files successive bankruptcy cases, the three year look back is an element the government must prove to establish the nondischargeability of taxes in the last filed case. Courts that have been quick to find "equitable" exceptions to the counting of the three year look back in § 507(a)(8)(A)(i) have not addressed the conflict this creates with the logic and plain language of § 523(b).

If Congress intended to except the duration of a prior bankruptcy case from the three year period in § 507(a)(8)(A)(i) and yet to allow the discharge of (non-fraud) taxes in a subsequent bankruptcy case based on the passage of time — a clear legislative statement of this intent would be found somewhere in §§ 523(b), 523(a)(1) or 507(a)(8)(A)(i). The government's position that a bankruptcy filing during the three year period defeats § 523(b) without regard to taxpayer fraud or misconduct is materially inconsistent with the statutory scheme that the passage of time changes nondischargeable (non-fraud) taxes into dischargeable claims in successive bankruptcy cases.

E.

11 U.S.C. § 507(a)(8)(A)(i) specifically states the circumstances under which the three year look back is tolled or extended; it is inappropriate for courts to read a different extension provision into a statute that already contains an extension rule. The three year period in § 507(a)(8)(A)(i) is counted from the "last due date . . . including extension." This debtor received an extension of the due date for his 1986 tax return in 1987. The three year counting for priority and nondischargeability was accordingly shifted in time by the statute itself. If Congress also intended to automatically suspend the three year look back for any period during which the taxpayer was a debtor in a prior bankruptcy case it would have said so.

F.

The immediately adjoining subsection of the Bankruptcy Code — § 507(a)(8)(A)(ii)^[28] — also contains a special statutory rule for the counting of the 240 day period in that section. The 240-days in § 507(a)(8)(A)(ii) are suspended for any period during which "an offer in compromise" is pending between the taxpayer and the IRS. The proximity of this specific counting rule demonstrates again that Congress focused on the need for some extensions and tolling of the time periods in § 507(a)(8). The precision with which Congress crafted the balance between the dischargeability of taxes and the collection[*891] needs of the government in § 507(a)(8)(A)(i) and (ii) argues strongly against judicial tinkering with the counting rules in these subsections.

G.

There is evidence elsewhere in § 523 that Congress knows how to build precise extension provisions into the definitions of nondischargeable claims that include time periods. In 11 U.S.C. § 523(a)(8) Congress declared nondischargeable student loans that were first due within seven years before a bankruptcy filing. Excluded by law from the counting of this seven year period is any "suspension of the repayment period." 11 U.S.C. § 523(a)(8)(A). See also 42 U.S.C. § 292f(g) (HEAL loans). The courts have recognized that the broad suspension language in § 523(a)(8)(A) extends or tolls the seven year period for time spent by the borrower in a prior bankruptcy case.^[29]

There is no analog to the broad extension provision in § 523(a)(8)(A) in § 523(a)(1) or in § 507(a)(8)(A)(i). Instead there is only the narrow expansion of the three years in § 507(a)(8)(A)(i) to reflect extensions granted by the IRS for the filing of tax returns.

With ample evidence that Congress knows how to design both broad and narrow rules for the counting of time periods in the exceptions to discharge in bankruptcy, it is not for the judiciary to embrace a broad rule where Congress has enacted a narrow one.

H.

"Fears" of debtor abuse of the IRS and manipulation of bankruptcy filings to avoid the nondischargeability of taxes are resolved by other provisions of the Bankruptcy Code. For example, 11 U.S.C. § 349^[30] permits a bankruptcy court to insulate taxes from discharge at dismissal of a bankruptcy case if it appears that the debtor is serially filing and dismissing to manipulate the dischargeability of taxes.^[31] The bankruptcy court can grant the IRS relief from the stay for cause under § 362(d)(1) where the passage of time in a bankruptcy case will inappropriately defeat the collection rights of the government.

Diligence by the IRS or a state tax collector is relevant. Did the IRS seek relief from the stay in the prior bankruptcy case? Did the IRS ask for a condition on dismissal in the prior bankruptcy case? How much collection time did the IRS have between or during prior bankruptcy cases?^[32] That the facts matter is another way of saying that equitable principles are not applied automatically just because a prior bankruptcy case was pending during the three year period in § 507(a)(8)(A)(i).

III.

The Supreme Court recently instructed the bankruptcy courts to refuse equitable arguments that change the priorities of debts fixed by Congress in the Bankruptcy Code. In United States v. Noland,^[33] ___ U.S. ___, 116 S.Ct. 1524, 134 L.Ed.2d 748 (1996), the Supreme Court held that a bankruptcy court may not invoke equity to subordinate tax penalty claims in a manner that changes the statutory priorities in § 507.

[*892] Section 507(a)(8) is part of the debt priority scheme at issue in Noland. Section 507(a)(8) becomes involved in this nondischargeability dispute only because of the cross-reference in § 523(a)(1) — in its ordinary life, § 507(a)(8) deals with the priority of debts for many important reasons, including the order in which bankruptcy estates are distributed to creditors.

Equitable tolling or extension of the three years in § 507(a)(8)(A)(i) as argued by the IRS has exactly the effect rejected by the Supreme Court in Noland — it would alter the extent of the government's statutory priority for taxes based on an equitable principle whenever a debtor had a prior bankruptcy case during the three year period.

IV.

Sixth Circuit precedent weighs against the government's position that a prior bankruptcy supplies the three year element in § 507(a)(8)(A)(i). In Smith v. United States (In re Smith), 96 F.3d 800 (6th Cir.1996), the Sixth Circuit refused to apply Bankruptcy Rule 9006 to extend the two year period for the nondischargeability of taxes in § 523(a)(1)(B)(ii).^[34] The court observed "we have been rather consistent in denying `equitable' pleas to disregard the strict timing rules of the Tax and Bankruptcy Codes." Id. at 802. The Sixth Circuit acknowledged the important distinction between ordinary procedural rules for counting time periods and the substantive provisions of the Bankruptcy Code that define nondischargeable tax claims: "Here, we are not dealing with bankruptcy procedural rules but with the legal status of a debt at the time of the filing of the petition." Id.

At issue in Smith, was § 523(a)(1)(B)(ii) which renders nondischargeable any income tax with respect to which a late return was filed within two years before a bankruptcy petition. Smith gave a courier his (overdue) income tax returns on Friday, November 22, 1991. The courier delivered the returns to the IRS on Monday, November 25, 1991. Smith filed bankruptcy on November 23, 1993. Smith argued that the counting provisions of the Bankruptcy Rules moved the filing of his tax returns outside of the two years in § 523(a)(1)(B)(ii).

The Sixth Circuit refused to allow procedural rules to change the nondischargeable status of the IRS's claim at the petition. If Smith "filed for bankruptcy two days later, he would not now owe taxes. . . . The result strikes one as arbitrary and it is arbitrary in the sense that two years is just an arbitrary number chosen to set a line somewhere in the proximity of reasonableness. . . . [T]he Bankruptcy Code should be read in a `straightforward' manner." Smith, 96 F.3d at 803. A "straightforward" reading of §§ 523(a)(1)(A) and 507(a)(8)(A)(i) does not find the counting rule argued here by the IRS.

In United States v. Aberl (In re Aberl), 78 F.3d 241 (6th Cir.1996), the Sixth Circuit recognized that Congress knows how to protect the IRS from debtor "tactics" that allow the time periods for priority and nondischargeability to run under § 507 of the Bankruptcy Code. The taxpayer in Aberl made an offer in compromise to the IRS before the IRS formally assessed taxes. The IRS then assessed taxes and the taxpayer filed a Chapter 7 petition more than 240 days after that assessment. Because of the age of the taxes (1981 and 1983 taxes in a bankruptcy filed in 1991), the IRS's only argument for priority and nondischargeability was 11 U.S.C. § 507(a)(8)(A)(ii) — that the taxes had been "assessed within 240 days [of the bankruptcy petition], plus any time plus 30 days during which an offer in compromise with respect to such taxes that was made within 240 days after such assessment was pending, before the date of the filing of the petition."

As explained by the Sixth Circuit, the special "tolling" provision in § 507(a)(8)(A)(ii)[*893] was crafted by Congress to stop manipulation of the 240-day period for priority and nondischargeability:

A review of section 507's legislative history reveals Congress' concern that debtors might use an offer in compromise to delay negotiations with the IRS, following the IRS's formal assessment of unpaid taxes, until the debtors' tax liability loses priority status. The statute was therefore enacted to give the IRS 240 days to collect the taxes that are due following its formal assessment of unpaid taxes. Indeed, section 507 attempts to balance two competing interests: the debtor's interest in obtaining a fresh start free from creditors' claims; and, the IRS's interest in collecting unpaid taxes.

Aberl, 78 F.3d at 244.

Construing the statute literally and strictly, the Sixth Circuit held that the debtor's offer in compromise before assessment did not toll the 240-day period in § 507(a)(8)(A)(ii) — only an offer in compromise after assessment has that effect. The Sixth Circuit refused the IRS's plea to reform § 507(a)(8)(A)(ii): "[Section] 507(a)[(8)](A)(ii) provides a distinction between pre-assessment and post-assessment offers in compromise submitted to the IRS, . . . courts may not reform statutes to correct perceived inadequacies." Aberl, 78 F.3d at 244.

Aberl is instructive here for two reasons. First, the Sixth Circuit recognized that Congress knows how to build into a bankruptcy tax statute a tolling provision that protects the public fisc from the running of the time periods for priority and nondischargeability. Congress wrote a specific provision into § 507(a)(8)(A)(ii) changing the counting of the 240 day period to accommodate the government's consideration of a debtor's offer in compromise. The preceding subsection at issue here — § 507(a)(8)(A)(i) — excludes from its three year period any extension of time granted by the IRS for the filing of a tax return. The new exclusion the IRS would have this court write into § 507(a)(8)(A)(i) — that a prior bankruptcy tolls, extends or supplies the three year element of the government's case — is precisely the sort of statutory reformation refused by the Sixth Circuit in Aberl.^[35]

Secondly, Aberl and Smith demonstrate the Sixth Circuit's respect for the deliberate legislative balances in the Bankruptcy Code sections dealing with the dischargeability of taxes. Constructions that enlarge nondischargeability at the expense of the fresh start require clear statutory support. There is no clear statutory support for presuming or supplying the three year look back in § 507(a)(8)(A)(i) based alone on a prior bankruptcy case. Without evidence of debtor misconduct or scheme to avoid taxes, it is unlikely that the Sixth Circuit would depart from the logic of Aberl and Smith to declare a broad new exception to the rule that taxes can be discharged in successive bankruptcy cases under § 523(b).

V.

The IRS is entitled to a trial of its contention that the three year element in § 507(a)(8)(A)(i) should be supplied by the court in this adversary proceeding. This argument from equitable principles cannot be resolve on summary judgment.

It may be relevant to the government's equitable argument whether the debtor's tax liability for 1986 was a pre- or postpetition claim in the 1987 bankruptcy.^[36]

The debtor's 1986 tax liability was a prepetition debt in the bankruptcy case filed on February 9, 1987. Debt means liability on a claim. 11 U.S.C. § 101(12).[*894] See Pennsylvania Dep't of Public Welfare v. Davenport, 495 U.S. 552, 558, 110 S.Ct. 2126, 2130-31, 109 L.Ed.2d 588 (1990). Claim means "right to payment, whether or not such right is reduced to judgment, liquidated, unliquidated, fixed, contingent, matured, unmatured, disputed, undisputed, legal, equitable, secured or unsecured." 11 U.S.C. § 101(5)(A). Congress intended by this language to adopt "the broadest available definition of `claim.'" Johnson v. Home State Bank, 501 U.S. 78, 83, 111 S.Ct. 2150, 2154, 115 L.Ed.2d 66 (1991).

For purposes of priority (and nondischargeability) of taxes, "claim" includes unmatured and unliquidated rights to payment for "a taxable year ending on or before the date of the filing of the petition. . . ." 11 U.S.C. § 507(a)(8)(A)(i). See Raiman v. State Bd. of Equalization (In re Raiman), 172 B.R. 933, 940 (9th Cir. BAP 1994) ("taxable year" fixes reference point for taxes entitled to priority).

This debtor's 1986 tax year ended on December 31, 1986, before the first bankruptcy petition. Because "claim" includes unmatured and unliquidated rights to payment, it is not outcome determinative that the debtor's 1986 tax return was not yet due at the petition on February 9, 1987. Hypothetical transactions after the petition but before April 15, 1987 that could affect the amount of tax owed could not defeat the existence of a claim for 1986 taxes at the petition.

United States v. Chavis (In re Chavis), 47 F.3d 818 (6th Cir.1995), is not contrary. Chavis holds that untimely filed tax claims are disallowed in a Chapter 13 case. The petition in Chavis was filed on May 23, 1991. In a note, the Sixth Circuit said this about tax claims for the 1991 tax year:

Because the 1991 tax liability was not due until 1992, the 1991 tax liability is a nondischargeable post-petition debt (pursuant to 11 U.S.C. §§ 1305(a)(1) and 1328(a)) and is not at issue.

Chavis, 47 F.3d at 819 n. 4.^[37]

These parties concede that 1987 taxes were post-petition claims under Chavis in Nolan's 1987 bankruptcy. However, Chavis did not address the status of tax claims for the prior calendar year when a bankruptcy petition is filed in the "gap" after December 31st and before April 15th. For such claims, the taxable year has ended (for most debtors), the government's right to payment has accrued; all that awaits the passage of time is the filing of returns. Taxes for 1986 were prepetition claims in this debtor's 1987 bankruptcy case.

An appropriate order will be entered.

ORDER

For the reasons stated in the memorandum filed contemporaneously herewith, IT IS ORDERED, ADJUDGED and DECREED that the three year look back element of the government's cause of action under 11 U.S.C. § 523(a)(1)(A) and 11 U.S.C. § 507(a)(8)(A)(i) is not tolled, extended, presumed or supplied as a matter of law by this debtor's prior bankruptcy case. IT IS FURTHER ORDERED that the government's equitable arguments cannot be resolved on summary judgment and will be set for trial by a separate order. IT IS FURTHER ORDERED that the debtor's federal income taxes for 1986 were a prepetition claim in the bankruptcy case filed by this debtor on February 9, 1987.

IT IS SO ORDERED.

(a) A discharge under section 727 . . . does not discharge an individual debtor from any debt —

(1) for a tax or a customs duty —

(A) of the kind and for the periods specified in section . . . 507(a)(8) of this title. . . .

(a) The following expenses and claims have priority in the following order:

(8) Eighth, allowed unsecured claims of governmental units, only to the extent that such claims are for —

(A) a tax on or measured by income or gross receipts —

(i) for a taxable year ending on or before the date of the filing of the petition for which a return, if required, is last due, including extensions, after three years before the date of the filing of the petition.

(c) [I]f applicable nonbankruptcy law, an order entered in a nonbankruptcy proceeding, or an agreement fixes a period for commencing or continuing a civil action in a court other than a bankruptcy court on a claim against the debtor . . . and such period has not expired before the date of the filing of the petition, then such period does not expire until the later of —

(1) the end of such period, including any suspension of such period occurring on or after the commencement of the case; or

(2) 30 days after notice of the termination or expiration of the stay under section 362 . . . with respect to such claim.

(a) The court may issue any order, process, or judgment that is necessary or appropriate to carry out the provisions of this title. No provision of this title providing for the raising of an issue by a party in interest shall be construed to preclude the court from, sua sponte, taking any action or making any determination necessary or appropriate to enforce or implement court orders or rules, or to prevent an abuse of process.

The running of the period of limitations provided in section 6501 or 6502 on the making of assessments or collection shall, in a case under title 11 of the United States Code, be suspended for the period during which the Secretary is prohibited by reason of such case from making the assessment or from collecting and —

(1) for assessment, 60 days thereafter, and

(2) for collection, 6 months thereafter.

Notwithstanding subsection (a) of this section, a debt that was excepted from discharge under subsection (a)(1), (a)(3), or (a)(8) of this section, under section 17a(1), 17a(3), or 17a(5) of the Bankruptcy Act, under section 439A of the Higher Education Act of 1965, or under section 733(g) of the Public Health Service Act in a prior case concerning the debtor under this title, or under the Bankruptcy Act, is dischargeable in a case under this title unless, by the terms of subsection (a) of this section, such debt is not dischargeable in the case under this title.

(a) The following expenses and claims have priority in the following order:

(8) Eighth, allowed unsecured claims of governmental units, only to the extent that such claims are for —

(A) a tax on or measured by income or gross receipts —

(ii) assessed within 240 days, plus any time plus 30 days during which an offer in compromise with respect to such tax that was made within 240 days after such assessment was pending, before the date of the filing of the petition.

(a) Unless the court, for cause, orders otherwise, the dismissal of a case under this title does not bar the discharge, in a later case under this title, of debts that were dischargeable in the case dismissed; nor does the dismissal of a case under this title prejudice the debtor with regard to the filing of a subsequent petition under this title, except as provided in section 109(g) of this title. (emphasis added).

(a) A discharge under section 727, 1141, 1228(a), 1228(b), or 1328(b) of this title does not discharge an individual debtor from any debt —

(1) for a tax or a customs duty —

(B) with respect to which a return, if required —

(ii) was filed after the date on which such return was last due, under applicable law or under any extension, and after two years before the date of the filing of the petition.