                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 30, 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.

                           6433
6434                     IN RE GOULD
Randolph L. Hutter, Department of Justice, Tax Division,
Washington D.C., for the appellee.


                          ORDER

 The published order filed April 19, 2010, is hereby WITH-
DRAWN.


                          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.

  Accordingly, the judgment of the Bankruptcy Appellate
Panel is AFFIRMED.
