In re Zimmerman, No. 06-15151, 2008 WL 161423 (11th Cir. Jan. 18, 2008). The background facts are summarized by the Court as follows:
Zimmerman filed an adversary proceeding in his 2004 bankruptcy proceeding seeking a determination that his federal income tax liabilities for the years 1977 through 1979 would be dischargeable in the 2004 bankruptcy proceedings. … For two of the tax years at issue, Zimmerman failed to file timely his returns; for one year he filed timely but claimed — incorrectly — that no tax was due. The 1977 through 1979 tax liabilities that Zimmerman seeks to discharge arose when the IRS disallowed tax shelter deductions claimed on those returns.
In 1996, Zimmerman petitioned for bankruptcy protection under Chapter 7 … At that time, no outstanding tax liability was listed for tax years 1977 – 1979, and no such liability had been assessed. Upon completion of an audit in 1997, IRS disallowance of tax shelter deductions claimed by Zimmerman on his 1977, 1978 and 1979 returns resulted in a significant understatement of income.
Debtor filed his present bankruptcy case in 2004, along with an adversary proceeding challenging the dischargeability of the taxes. The Court rejected the debtor’s argument that no tax was due because it was discharged in his earlier bankruptcy case.
As an initial matter, we note that Zimmerman — in the complaint he filed to
determine dischargeability — acknowledged that the 1977 through 1979 taxes were
owed. Also, Zimmerman stipulated to entry of the bankruptcy court’s pretrial
order: an order which stated that he owed the taxes resulting from the
Assessment. So, we reject Zimmerman’s attempt to challenge the underlying tax
liability with his claim that the 1996 bankruptcy proceeding discharged the tax
liability resulting from the Assessment in 1997.
The Court noted that "mere nonpayment of taxes, without more, does not render a tax debt nondischargeable; but affirmative acts constituting a willful attempt to evade or defeat the collection of taxes will result in nondischargeability under section 523(a)(1)(C)." That standard is met where (1) the debtor had a duty under the law, (2) the debtor knew he had that duty, and (3) the debtor voluntarily and intentionally violated that duty.
The bankruptcy court’s findings of fact chronicle Zimmerman’s (1) repeated failures to file timely tax returns;2 (2) repeated instances in which returns were only secured through collection;3 (3) multiple petitions for bankruptcy collection (some of which failed to include schedules of assets);4 (4) enjoyment of significant income and assets which could have paid delinquent taxes but instead were used to finance the lifestyle of Zimmerman and Patricia Montifinese, Zimmerman’s longtime girlfriend; (5) repeated intra-family asset transfers and asset transfers to Montifinese; and, more specifically, (6) asset transfers in close temporal proximity to government tax collection attempts. The bankruptcy court concluded that the tax liability from the Assessment should be excepted from discharge because Zimmerman engaged in substantial abuse of the bankruptcy system, attempted to hide assets from creditors, and willfully attempted to defeat or evade his tax
The Court found no error in the lower court rulings finding the tax debts nondischargeable.