   United States Bankruptcy Appellate Panel
                           For the Eighth Circuit
                       ___________________________

                               No. 17-6024
                       ___________________________

    In re: Scott S. Austin; Anna M. Austin, formerly known as Anna DeFalco

                             lllllllllllllllllllllDebtors

                            ------------------------------

      United States of America, on behalf of the Internal Revenue Service

                      lllllllllllllllllllllCreditor - Appellant

                                         v.

                        Scott S. Austin; Anna M. Austin

                       lllllllllllllllllllllDebtors - Appellees
                                     ____________

                 Appeal from United States Bankruptcy Court
                 for the Eastern District of Missouri - St. Louis
                                 ____________

                         Submitted: February 23, 2018
                             Filed: April 9, 2018
                                ____________

Before SALADINO, Chief Judge, SHODEEN and SANBERG, Bankruptcy
Judges.
                             ____________

SANBERG, Bankruptcy Judge.
       The Appellant, United States of America, appeals the July 24, 2017, order of
the Bankruptcy Court sustaining the Debtors’ objection to a proof of claim filed by
the Internal Revenue Service. We have jurisdiction over this appeal from the final
order of the Bankruptcy Court. See 28 U.S.C. § 158(b).

      For the reasons stated below, we reverse.

STANDARD OF REVIEW

       The question of whether substantial evidence was presented in support of the
objection as a matter of law sufficient to rebut the Internal Revenue Service’s
(“IRS”) proof of claim is reviewed de novo. Fed. R. Bankr. P. 8013; Halverson v.
Estate of Cameron (In re Mathiason), 16 F.3d 234, 235 (8th Cir. 1994); Dove-Nation
v. eCast Settlement Corp. (In re Dove-Nation), 318 B.R. 147, 150 (B.A.P. 8th Cir.
2004). We review the Bankruptcy Court's findings of fact for clear error and its
conclusions of law de novo. Brown v. I.R.S. (In re Brown), 82 F.3d 801, 805 (8th
Cir. 1996), abrogated on other grounds by Raleigh v. Ill. Dep’t of Revenue, 503 U.S.
15, 120 S.Ct. 1951 (2000); Keating v. C.I.R., 544 F.3d 900 (8th Cir. 2008), Blodgett
v. C.I.R., 394 F.3d 1030, 1035 (8th Cir. 2005)(finding in the context of proving tax
loss, which is entitled to a presumption of correctness, that “we review de novo the
legal question of whether a taxpayer produced sufficient evidence to shift the burden
of proof”).

BACKGROUND

      The Debtors, Scott S. and Anna M. Austin (“Austins” or “Appellees”), filed
a voluntary petition under Chapter 13 of the Bankruptcy Code with the Bankruptcy
Court for the Eastern District of Missouri on December 8, 2014. In their schedules,
the Austins listed two pending worker’s compensation claims as contingent and
unliquidated exempt property. These claims were valued at $0.00 or an “unknown
value.” The Austins listed the IRS as a secured creditor. The IRS filed proof of claim
no. 5-1, asserting in part a secured claim as a result of a tax lien.

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       On January 9, 2015, the Austins filed an objection to claim no. 5-1 (“January
Objection”). They objected to the amount of the IRS’s priority claim and the amount
of the claim listed as secured. They argued that no value should be attributable to
their worker’s compensation claims in determining the secured portion of the IRS’s
claim. They also argued, in the alternative, that since there were neither settlement
offers nor a basis to determine the value of the worker’s compensation claims, the
present value of the worker’s compensation claims should be $0.

      On July 13, 2015, the Bankruptcy Court held a hearing on the January
Objection. No evidence was presented at this hearing and the matter was taken under
submission.

        On September 18, 2015, the Bankruptcy Court overruled the Austins’ January
Objection and held that the Austins had failed to meet their burden to produce
substantial evidence to rebut the IRS’s claim. The Bankruptcy Court disagreed with
the Austins’ assertion that their worker’s compensation claims had no value. In re
Austin, 538 B.R. 543 (Bankr. E.D. Mo. 2015)(“Austin 1"). Rather, the Bankruptcy
Court held that because the claims were being pursued at the time the petition was
filed, they must have had some value. Id. at 546. Therefore, the Bankruptcy Court
overruled the Austin’s objection. Id. at 546-547.

      In the meantime, on July 28, 2015 (while Austin 1 was under submission), the
Austins negotiated a settlement of the worker’s compensation claims for $21,448.80.
After attorneys’ fees, the Austins received a net settlement of $15,661.60.

       The IRS learned of the settlement, and on October 13, 2015, filed an amended
claim, No. 5-3, which included as part of its secured claim the amount of $15,661.60
for the value of the worker’s compensation settlement.

      The Austins again objected to the IRS’s claim, specifically to the value of the
IRS lien against the worker’s compensation claims. In support of their objection, on



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July 26, 2016, the Austins filed an affidavit of Michael Smallwood 1 (“Smallwood
Affidavit”), the Austins’ worker’s compensation attorney, who opined that the
worker’s compensation claims had a “nuisance” value of $3,000.00 on the petition
date.

       In response, the IRS argued that the Smallwood Affidavit was not substantial
evidence sufficient to overcome the prima facie validity of the IRS’s claim. Further,
the IRS argued that the value of the worker’s compensation claims should be the
amount that the claim settled for, though it was several months after the Austins’
petition date.

      After hearing oral arguments, on August 22, 2016, without taking evidence or
hearing testimony, the Bankruptcy Court took the matter under submission.

       On July 24, 2017, the Bankruptcy Court ruled that the Smallwood Affidavit
was “substantial evidence” of the value of the worker’s compensation claims,
sufficient to rebut the prima facie validity of the IRS’s claim. The Bankruptcy Court
reasoned that the affidavit was from the attorney who litigated the matter himself.
Further, the Bankruptcy Court stated that the “IRS has not provided additional
evidence to prove why it believes the true value of the claim should be the actual
settlement amount.” The Bankruptcy Court therefore sustained the Austins’
objection and valued the worker’s compensation claims at $3,000, and reduced the
IRS’s secured claim by $12,661.00.

      The IRS timely filed this appeal.

ISSUES ON APPEAL

       On appeal, the IRS argues that the Bankruptcy Court erred in finding that the
Austins presented substantial evidence in support of their objection. The IRS argues
that the single affidavit of the worker’s compensation counsel, the Smallwood
Affidavit, filed in support of their objection did not constitute ‘substantial evidence’

1
 The Smallwood Affidavit was filed on July 26, 2016, and was amended the next
day to correct the amount of the settlement. The Smallwood Affidavit addressed here
is the corrected affidavit filed on July 27, 2016.
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in rebutting the IRS’s claim. Rather, the Smallwood Affidavit contains
uncorroborated and self-serving hearsay statements and the IRS did not have the
opportunity for cross-examination.

       The Austins argue in response that the IRS did not preserve for appeal, and
therefore waived any argument, on the issue of the sufficiency of evidence of the
Smallwood Affidavit. The Austins also argue that the Bankruptcy Code does not
prescribe any particular method of valuation, but instead leaves valuation questions
to judges on a case-by-case basis. According to the Austins, the Smallwood Affidavit
is sufficient proof of the value of the claim because Mr. Smallwood handled the case
and is an experienced worker’s compensation attorney; he is in the best position to
value the claims as of the petition date.

DISCUSSION

      The IRS’s Claim

       We first note that there is no dispute about the amount of the IRS’s claim or
that the federal tax lien is a valid lien against the proceeds of the workers
compensation claims. Therefore, we do not address those issues. Rather, the issue
is the value of the lien on the worker’s compensation claims pursuant to 11 U.S.C.
§ 506(a)(1).

       Section 506(a)(1) states that a claim is a “… secured claim to the extent of the
value of such creditor’s interest in the estate’s interest in such property ….” 11
U.S.C. § 506(a)(1). The Austins argue that this amount is $3,000, the value asserted
in the Smallwood Affidavit. The IRS disagrees and asserts that the Austins failed to
present substantial evidence to overcome the presumptive validity of the IRS claim
which valued the amount secured by the worker’s compensation claims to be
$15,661.60, the amount the Austins received in the settlement, after attorneys' fees
were deducted.



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      Burden of Proof

       A creditor of the debtors may file a proof of claim and it is deemed allowed,
unless a party in interest objects. 11 U.S.C. § 502(a). A proof of claim that comports
with the requirements of Bankruptcy Rule 3001(f) constitutes prima facie evidence
of the validity and amount of the claim. Fed. R. Bankr. P. 3001(f); In re Dove-Nation,
318 B.R. at 152; Kimmons v. Innovative Software Designs, Inc. (In re Innovative
Software Designs, Inc.), 253 B.R. 40, 44 (B.A.P. 8th Cir. 2000). The filing of an
objection does not deprive the proof of claim of a presumptive validity unless the
objection is supported by substantial evidence. McDaniel v. Riverside Co. Dept. of
Child Support & Serv. (In re McDaniel), 264 B.R. 531, 533 (B.A.P. 8th Cir. 2001),
(citing In re Brown, 82 F.3d 801, 805 (8th Cir. 1996)).

      Further, as part of its burden of producing substantial evidence to rebut the
presumptive validity, the objecting party bears the burden of producing substantial
evidence as to the value of the collateral securing any portion of the claim. 11 U.S.C.
§ 506; In re Heritage Highgate Inc. 679 F.3d 132, 140 (3rd. Cir. 2012) (citing In re
Roberts, 135 B.R. 350, 352 (Bankr. E.D. Ark. 1992). This is because the claim is
secured only to the extent of the value of the collateral, pursuant to Section 506.
Wright v. Standard Consumer USA Inc. (In re Wright), 492 F.3d 829, 830 (7th Cir.
2007); Taffi v. U.S., (In re Taffi) 96 F.3d 1190, 1192 (9th Cir. 1996).

       Here, the Bankruptcy Court determined that the value of the worker’s
compensation claim was $3,000 based on the Smallwood Affidavit provided by the
Austins, and that the Smallwood Affidavit constituted substantial evidence rebutting
the presumptive validity of the IRS’s claim. The IRS disagreed.

       While the Austins argue that the IRS did not preserve the issue of the
sufficiency of the evidence for appeal and therefore waived the argument, we
disagree. The IRS raised the issue of the sufficiency of the affidavit in its
submissions several times at the hearing on August 22, 2016. The attorney for the
IRS stated at one point: “I don’t believe that the affidavit of Mr. Smallwood in this

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matter meets the debtors’ burden of substantial evidence.” Transcript of Objection
to Claim 5 of Department of the Treasury For $171,606.34 by Debtors (54);
Response By the Trustee (55); Response by Internal Revenue Service (56) at 4, In
re Austin, No. 14-49516 (Bankr. E.D. Mo. Sept. 11, 2017) ECF No. 93. Thus, the
argument was not waived.

      Value of Austins’ Worker’s Compensation Claims

      The Austins argue that they submitted substantial evidence in the form of the
Smallwood Affidavit to support their valuation of the secured portion of the worker’s
compensation claims in rebuttal of the IRS’s proof of claim. Substantial evidence
means “more than a mere scintilla. It means such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion.” Consolidated Edison C. v.
NLRB, 305 U.S. 197, 229 (1938): Richardson v. Perales, 402 U.S. 389, 401 (1971).
Substantial evidence requires financial information and factual arguments. See
Vomhof v. United States, 207 B.R. 191, 192 (D. Minn. 1997); In re Dove-Nation,
318 B.R. at 152. Here, the Smallwood Affidavit does not contain the financial or
factual information necessary to support Mr. Smallwood’s opinion of value.

      First, the Smallwood Affidavit was Mr. Smallwood’s personal opinion of
value. He admits in the affidavit that at the time of the filing of the petition he did
not know the full extent of Mr. Austin’s injuries; Mr. Austin had not had any
independent medical exams and needed further treatment and analysis.

       Second, Mr. Smallwood opines that by continuing to pursue the workers
compensation claims post-petition, his work increased the value of the claims from
a “nuisance value” of $3,000.00 to the final settlement amount. There is nothing in
the Smallwood Affidavit that shows what Mr. Smallwood did to increase the value
of the worker’s compensation claims. The claims are for losses due to the injuries
Mr. Austin sustained at work. The evidence supporting the losses would be
determined by the extent of the injury, worker’s compensation schedules, etc. Mr.
Smallwood’s work had no impact on these factors.

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        As an analogy, assume a debtor has a damaged car and he wants to file a
claim with the auto insurance company but at the time he makes the claim, the full
extent of the damage is not known. An agent’s work to establish the extent of the
damage and pursue the insurance proceeds would have no effect on the value of the
damage. Rather, the agent’s work made the facts known so that the claim could be
resolved. Similarly, here worker’s compensation is a type of insurance; Missouri
employers are required to either carry the insurance or be self-insured. R. S. Mo.
Stat. § 287.280. Mr. Smallwood’s work helped establish the extent of Mr. Austin’s
injuries and helped to recover the benefits from the worker’s compensation
insurance. Mr. Smallwood’s work had no impact on the value of the worker’s
compensation claims themselves as he did not increase the extent of Mr. Austin’s
injuries, his efforts simply made the facts known and aided in recovery.

       Third, Mr. Smallwood states in the affidavit that at the time of the filing of the
petition, no offers in settlement had been made. But he does not state what demands
had been made on Mr. Austin’s behalf nor did he provide any documentation to
corroborate his statement that the claim was worth only $3,000.00 on the petition
date, despite settling for more than $21,000.00 just seven months later. He did not
present copies of the actual workers compensation claims filed, evidence of the
Missouri state statutory scheme for valuing such worker’s compensation claims, or
evidence of past awards for similar claims.

      Finally, the IRS had no opportunity to cross examine Mr. Smallwood as there
was no evidentiary hearing, no testimony taken, and nothing admitted into evidence.

       The Austins had the burden of producing substantial evidence to rebut the
IRS’ claim. They must have provided evidence that has a reasonable, objective basis
for the valuation of a tort claim such as here. This could include such things as lost
wages, medical bills or worker’s compensation schedules. See In re Solly, 392 B.R.
692, 697 (Bankr. S.D. Tex. 2008) (a medical malpractice claim may not be scheduled
as unknown, the scheduled value of medical malpractice claims must have

                                          -8-
reasonable basis); In re Cumba, 505 B.R. 110, 116 (Bankr. D. P.R. 2014) (the best
guide for establishing the value of a particular legal claim is to find out the monetary
awards that the state courts have awarded to similar legal claims in the past).
Allowing a valuation of a tort claim without a reasonable factual basis encourages
abuse. Debtors could avoid a secured creditor’s interest in tort claims simply by
failing to obtain the facts necessary to support those claims. See In re Solly, 392 B.R.
at 697.

      Based on our de novo review of the record, the Austins failed to present
substantial evidence sufficient to overcome the presumption of the validity and
amount of the IRS’s proof of claim. Therefore, their objection to claim should have
been overruled.

CONCLUSION

      For the foregoing reasons, we REVERSE.
                          ______________________________




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