                              UNITED STATES COURT OF APPEALS
                                          Tenth Circuit
                               Byron White United States Courthouse
                                        1823 Stout Street
                                     Denver, Colorado 80294
                                         (303) 844-3157
Patrick J. Fisher, Jr.                                                                  Elisabeth A. Shumaker
Clerk                                                                                   Chief Deputy Clerk

                                               August 26, 1997


        TO:      All recipients of the captioned opinion

        RE:      96-4109, USA v. Victor; 96-4111, USA v. Brumback
                 July 11, 1997


                 Please be advised of the following correction to the captioned decision:

                 In the last full paragraph on page twelve of the opinion, the first sentence should
        read:

                 Sections 523(a)(1) and 507(a)(7) clearly instruct that tax debts are
                 nondischargeable only if characterized as “allowed unsecured claims.”

                 The corrected version of page twelve is attached for your convenience.

                                                           Very truly yours,

                                                           Patrick Fisher, Clerk



                                                           Susie Tidwell
                                                           Deputy Clerk

        encl.
                                                                                              F I L E D
                                                                                     United States Court of Appeals
                                                                                             Tenth Circuit
                                               PUBLISH
                                                                                               JUL 11 1997
                          UNITED STATES COURT OF APPEALS
                                                                                         PATRICK FISHER
                                                                                                    Clerk
                                          TENTH CIRCUIT



 UNITED STATES OF AMERICA,

         Appellant,

 v.

 GLENN B. VICTOR, JOYCE F.                                               No. 96-4109
 VICTOR, UTTAX, UTAH
 DEPARTMENT OF EMPLOYMENT
 SECURITY, DUJUANA ELAINE
 BRUMBACK, JOHN L. BRUMBACK,

          Appellees.
-----------------------------------------------------------------------------------------------------
UNITED STATES OF AMERICA,

       Appellant,

v.
                                                                         No. 96-4111
JOHN L. BRUMBACK AND DUJUANA
ELAINE BRUMBACK, doing business as
Brumback Trucking,

       Appellees.


             APPEAL FROM THE UNITED STATES DISTRICT COURT
                        FOR THE DISTRICT OF UTAH
                            (D.C. No. 95-CV-196-S)
                            (D.C. No. 95-CV-381-S)
                    _____________________________________
Gary D. Gray (Patricia M. Bowman with him on the briefs), Tax Division, Department of
Justice, Washington, D.C., for Appellants.

Noel S. Hyde, Nielsen & Senior (Brent M. Burningham, Nielsen & Senior, Salt Lake
City, Utah; and Steven A. Wuthrich, Sandy, Utah, with him on the briefs), Salt Lake City,
Utah, for Appellees.


Before PORFILIO, MCWILLIAMS, and LUCERO, Circuit Judges.


PORFILIO, Circuit Judge.




                                          -2-
       These consolidated bankruptcy appeals present the question of whether the Internal

Revenue Service (IRS) is entitled to post-petition, pre-confirmation interest -- so-called

“gap period interest” -- on its secured pre-petition tax claims where the IRS neither

asserted a claim for gap period interest nor objected to the debtors’ confirmed plans

which made no allowance for payment of such interest. We conclude these failures

preclude recovery by the IRS and affirm the judgment of the district court.

                                              I.

       The facts of the cases are not in dispute, but require some development to clearly

set forth the parties’ positions and our own conclusions of law. In 1982, John and

DeJuana Brumback filed a petition for relief under Chapter 11 of the United States

Bankruptcy Code. The IRS filed a proof of claim seeking payment of employment tax

liabilities in the amount of $93,175.22 as of the petition date. Of that total, $60,208.80,

including interest and penalties, was classified as a secured claim, perfected through a tax

lien on debtors’ property. The proof of claim contained the following standard language:

“For the purposes of section 506(b) of the Bankruptcy Code, post petition interest may be

payable” and “[t]o the extent that post petition penalties and interest are nondischargeable

and remain unpaid, they may be collectible from the debtor.”

       The Brumbacks’ reorganization plan was confirmed by order of the bankruptcy

court on August 31, 1984. Article IV of the plan classified creditors’ claims and provided

in relevant part:


                                            -3-
       4.11 Class XI: The secured claim of the Internal Revenue Service as finally
       allowed and ordered paid by the Court to the extent that such claim is not
       greater than the value of the Debtors’ assets.... The amount of this secured
       claim to be paid under the Plan is $60,208.80. This secured claim represents
       the full amount due to the Internal Revenue Service pursuant to its federal tax
       lien ....

Article VIII described treatment of impaired classes under the plan and provided the

following detailed payment schedule for debtors’ tax liability:

       8.4(a) Classes IV, V, VI, VII, VIII, X, and XI: ... The claim of each of these
       creditors is less than the value of the property which is subject to the claim.
       Each of these creditors shall be paid the full amount of its claim, together with
       interest and other applicable charges at the rate provided in the underlying
       contracts or statutes which determine the claim of each creditor.

       8.4(b) The claims of these creditors shall be paid, together with interest, in
       monthly installments ... as set forth in the table below.
              ....
       Class        Claim       Rate of            Monthly Payment     Number of
                                Interest                                Payments
              ....
        XI         60,208.80 12.00                      1,339.31    60

       The Brumbacks’ confirmed plan also provided for full payment of the IRS’s

priority unsecured tax claim, including interest and penalties, of $32,966.42. The plan did

not provide for the payment of gap period interest.

       In July 1992, the Brumbacks and the IRS resolved an accounting dispute by fixing

debtors’ outstanding balance at $26,500 as of May 1992, and agreeing to a payment

schedule. Immediately thereafter, the bankruptcy court entered a final decree closing the

Brumbacks’ case, concluding “upon satisfaction of the terms and conditions of the

Stipulation between the Debtors and the Internal Revenue Service, the debtors will have

                                             -4-
fully satisfied all obligations arising under their confirmed Chapter 11 Plan of

Reorganization.” The IRS notified the Brumbacks on March 19, 1993, that all IRS

obligations under the plan had been satisfied. The letter also informed them “[a]s you

know, there still exists an issue regarding the gap interest.”

       In June 1994, the Brumbacks sought a declaratory judgment from the bankruptcy

court that unasserted gap period interest on the IRS’s secured claim had been discharged

upon confirmation of the reorganization plan and the IRS could not collect $14,974.50 for

such interest. The court granted the Brumbacks’ motion for summary judgment,

concluding the debtors’ obligations had been delineated clearly in both the reorganization

plan and the stipulated agreement. Because, the court reasoned, the IRS did not file a

claim for the interest, did not object to confirmation of the plan on the ground that it did

not provide for interest, and did not, over the course of more than ten years, ever indicate

its intention to collect gap period interest on its secured claims, the government was not

entitled to pursue recovery of the interest outside the terms of the plan. The IRS appealed

to the district court.

       In June 1986, Glenn Victor filed a petition for relief under Chapter 11 of the

Bankruptcy Code. The IRS filed a proof of claim for employment taxes for $74,002.17;

the secured portion of its claim totaled $70,891.30 including interest and penalties. The

proof of claim form included identical language to that contained in the Brumbacks’

form, noting that post-petition interest “may be collectible from the debtor.”


                                             -5-
       After two and a half years and several attempts to develop a reorganization plan

acceptable to secured creditors including the IRS, the bankruptcy court confirmed Mr.

Victor’s plan in December 1988 and, pursuant to 11 U.S.C. § 1141, discharged debtor “of

any and all debts and liabilities” except as provided in that section. In its confirmation

order, the court noted the IRS had withdrawn all previous objections to Mr. Victor’s plan

with the exception of an objection based on feasibility.

       The Victor reorganization plan provided for full payment of the IRS’s secured and

priority unsecured claims including interest and penalties; Article XI of the plan detailed

the payment schedule:

       Class IV: Secured claims of the IRS:
              IRS: The total secured claim of $45,330.67, or such sum more or less
       as comprises actual principal, will be paid in payments of a size sufficient to
       pay IRS within six years, six such payments per year for the months May,
       June, July, August, September, and October.
              In addition interest at 11% or as ultimately determined and penalties,
       if any, ultimately required, ($13,771.77 interest and $14,517.52 penalties
       claimed) together with interest resulting from amortization will be determined
       and paid over six years, six per year, for the months of May, June, July,
       August, September, and October, the amount of payments to conform to
       schedule submitted by creditor and approved by the Court.

Additionally, a separate provision specified interest applicable to each creditor’s claims,

directing that interest be paid as follows:

       Class IV, secured claims of the IRS -- 11% per annum, payable pro rata with
       monthly payments, or at such rate as ultimately determined by the Court;
          ....
       Class VI, IRS priority claims -- 11% per annum, payable pro rata with monthly
       payments, or at such rate as ultimately determined by the Court....


                                              -6-
The plan did not provide for the payment of gap period interest.

       In December 1993, with prior approval from the court, Mr. Victor sold the Grand

Ice Cream Parlor, and proceeds of approximately $140,000 were distributed to secured

creditors to satisfy their bankruptcy claims, including the IRS’s stipulated balance of

$43,769.41. Just prior to the sale, however, the IRS informed Mr. Victor that his

obligation to the IRS included gap period interest in the amount of $22,202.27. The IRS

asserted a claim to the remaining $22,500 of sale proceeds, and Mr. Victor filed an

adversary complaint requesting the bankruptcy court to determine the extent of the liens

on the proceeds. After considering the record and hearing argument, the court denied the

IRS’s claim, holding the gap period interest was discharged upon confirmation of the

reorganization plan. The IRS appealed, and the two cases were consolidated for

proceedings in the district court.

       In the district court, the IRS argued the gap period interest, as part of the debtors’

employment tax liability, survived the dischargeability provision of 11 U.S.C. § 1141(d)

which excepts from discharge certain debts listed in §§ 523 and 507(a). The district court

rejected the argument, reasoning that because the IRS’s claims were secured, they did not

qualify as “allowed unsecured claims” excepted from discharge under § 507(a)(7).1



       1
          The Bankruptcy Reform Act of 1994 added a new § 507(a)(7) and renumbered
the prior § 507(a)(7) as § 507(a)(8). See Pub. L. No. 103-394, § 304(c), 108 Stat. 4106.
The amendments do not apply to cases filed before October 22, 1994; accordingly, all
references are to former § 507.

                                             -7-
Consequently, the court concluded the IRS was bound by the terms of the plan, and any

unaddressed claim for post-petition interest had been discharged upon confirmation. On

appeal, the IRS challenges the district court’s interpretation of the Bankruptcy Code,

contending §§ 523(a)(1)(A) and 507(a)(7) render the debtors’ liability for employment

taxes nondischargeable and thus collectible outside the terms of the reorganization plans.

We review this legal question de novo, In re Grynberg, 986 F.2d 367, 369 (10th Cir.

1993), and affirm.

                                              II.

       Section 1141 of the Bankruptcy Code delineates the effects of plan confirmation

and provides in relevant part:

       (a) Except as provided in subsections (d) (2) and (d) (3) of this section, the
       provisions of a confirmed plan bind the debtor, any entity issuing securities
       under the plan, any entity acquiring property under the plan, and any creditor,
       equity security holder, or general partner in the debtor, whether or not the
       claim or interest of such creditor, equity security holder, or general partner is
       impaired under the plan and whether or not such creditor, equity security
       holder, or general partner has accepted the plan.
              ....
       (d) (2) The confirmation of a plan does not discharge an individual debtor
       from any debt excepted from discharge under section 523 of this title.

11 U.S.C. § 1141. Interested parties, then, are generally bound by the terms of the

confirmed plan. This rule, however, does not leave creditors without recourse; any

creditor may attempt to modify treatment of particular claims by objecting to confirmation

pursuant to Bankruptcy Rule 3020. 11 U.S.C. § 1128(b).



                                             -8-
       The IRS argues it could not have filed a claim for gap period interest nor objected

to the plan on that basis since a claim for unmatured interest, including post-petition

interest, is disallowed under § 502(b). We do not entirely dispute the government’s

contention. Section 502(b)(2)’s general rule suspending the accrual of interest on claims

as of the filing date of the petition ensures convenient administration of cases and equity

in distribution. See 4 Collier on Bankruptcy ¶ 502.03[3][a], p.502-29 (15th ed. 1997).

“The rule makes it possible to calculate the amount of claims easily and assures that

creditors at the bottom rungs of the priority ladder are not prejudiced by the delays

inherent in liquidation and distribution of the estate.” In re Hanna, 872 F.2d 829, 830

(8th Cir. 1989). In the case of secured creditors, however, payment of post-petition

interest is permitted where the value of the collateral exceeds the value of the claim

because that collateral acts as security for both the interest and the principal debt,

eradicating concerns about administrative convenience and fairness. See 11 U.S.C.

§ 506(b); 4 Collier, at ¶ 502.03[3][d], p.502-35; United States v. Ron Pair Enterprises,

Inc., 489 U.S. 235, 241 (1989). A creditor with this type of claim may certainly object to

a reorganization plan on the ground that it did not provide for post-petition interest. Ron

Pair Enterprises, 489 U.S. at 241.

       Though the IRS insists it does not enjoy the status of an oversecured creditor for

purposes of these proceedings, the terms of the Brumbacks’ plan expressly provided that

the IRS’s claim was “less than the value of the property which is subject to the claim.”


                                             -9-
Similarly, Mr. Victor’s confirmed plan listed assets of $324,162, and liability of

$220,924, and provided that in the event of liquidation, all creditors could realize full

value of their claims. Under these circumstances, we find the government’s assertion that

its lips were forced to remain sealed for seven years in Mr. Victor’s case and eleven years

in the Brumbacks’ case a tad disingenuous.

       Even if we accept the IRS’s characterization of its status as a mere secured

creditor, however, the government’s argument regarding the impossibility of providing

fair notice2 advances its position only so far. Section 502(b) does not simply prohibit

certain creditors from filing a proof of claim for post-petition interest; it prohibits those

creditors from collecting the interest from the bankruptcy estate. See In re Fullmer, 962

F.2d 1463, 1467 (10th Cir. 1992). The government, then, must show it is somehow

otherwise entitled to the post-petition interest on its secured claims. The IRS theorizes

that its entitlement flows from the fact that the interest, as part of a nondischargeable tax

debt, survives bankruptcy as the debtors’ personal liability and, consequently, can be

recovered notwithstanding the terms of the confirmed plans or the rules regulating

bankruptcy proceedings. The IRS is only partly correct.




       2
         We are unimpressed with the IRS’s argument that the boilerplate language in
small print on its proof of claim form constituted adequate notice the government
intended to assert a claim for the gap period interest, particularly when that language
served as the final word on the matter for more than seven years in these cases.

                                             - 10 -
       Admittedly, interest that accrues on a nondischargeable tax debt is an integral part

of an underlying tax claim and is generally treated the same as the original claim. In re

Hanna, 872 F.2d at 830. But here, that proposition lacks force unless the IRS’s secured

claim qualifies as a nondischargeable debt under the relevant sections of the Bankruptcy

Code. We conclude that it does not.

       Section 1141 of the Bankruptcy Code excepts from discharge any debt that arose

before the date of confirmation of the reorganization plan, but expressly excepts “any

debt excepted from discharge under section 523 of this title.” 11 U.S.C. § 1141(d)(2). In

turn, § 523(a)(1) provides in part :

       (a) a discharge under section ... 1141 ... does not discharge an individual
       debtor from any debt --
              (1) for a tax ... --
                      (A) of the kind and for the periods specified in section ...
       507(a)(7) of this title, whether or not a claim for such tax was filed or allowed;
              ....

Section 507(a)(7) defines the type of taxes not subject to discharge:

       (7) Seventh, allowed unsecured claims of governmental units; only to the
       extent that such claims are for --
               ....
               (C) a tax required to be collected or withheld and for which the debtor
       is liable in whatever capacity;
               (D) an employment tax on wages, salary, or commission of a kind
       specified in paragraph (3) of this subsection earned from the debtor before the
       date of the filing of the petition, whether or not actually paid before such date,
       for which a return is last due, under applicable law or under any extension,
       after three years before the date of the filing of the petition....

11 U.S.C. § 507(a)(7) (emphasis added).


                                             - 11 -
       The government contends the meaning of §§ 523(a)(1) and 507(a)(7) cannot be

reconciled under a reading that requires the tax debt to be an allowed unsecured claim

because § 523(a)(1) preserves debts for particular taxes “whether or not a claim for such

tax was filed or allowed.” Section 523(a)(1)’s concluding language, the IRS maintains, is

rendered superfluous by this interpretation. The government argues the two sections can

only mean the nature of the claim -- as filed, as allowed, or as unsecured -- has no bearing

on whether it is of a kind intended to be excepted from dischargeability. We disagree.

       Sections 523(a)(1) and 507(a)(7) clearly instruct that tax debts are

nondischargeable only if characterized as “allowed unsecured claims.” We decline to

attempt to create the kind of statutory harmony the IRS appears to be seeking. The

language of these sections sufficiently alerts us to the types of debts that may properly

survive dischargeability under 11 U.S.C. § 1141.

       Other courts that have previously encountered this language have capably resolved

the identical imperfections in the sections’ construction. In In re Spruill, 83 B.R. 359

(Bankr. E.D.N.C. 1988), a creditor whose subrogated claim for property taxes was

disallowed under § 502(b)(3) sought reimbursement from debtors alleging the taxes were

nondischargeable under § 523(a)(1)(A). The debtors argued the tax did not satisfy the

requirement that it be “of the kind ... specified in section ... 507(a)(7)” because that

section refers to allowed unsecured claims and the creditor’s claim had previously been

disallowed by the court. In response, creditor, pointing out the same apparent ambiguity


                                             - 12 -
discovered by the IRS, contended the nature of the claim was irrelevant for purposes of

determining its nondischargeability since § 523(a)(1)(A) preserved debts whether or not a

claim was filed or allowed. Id. at 361. The court disagreed, reasoning the disallowed

claim could not be “of a kind” intended to be excepted from discharge under § 523,

notwithstanding the concluding language of that section. Id. at 362.

       In In re Gurwitch, 794 F.2d 584 (11th Cir. 1986), the Eleventh Circuit permitted

the IRS to enforce claims for nondischargeable taxes against the debtor apart from the

confirmed reorganization plan. Relying only upon §§ 1141(d)(2) and 523(a)(1)(A), the

court determined the IRS’s failure to file a claim for the taxes did not prevent recovery

since § 523 rendered the taxes nondischargeable whether or not a claim was filed or

allowed. Id. at 585.

       In re Gurwitch, however, cannot strengthen the government’s position in this case.

First, the court never considered the introductory language of § 507(a)(7) and thus

avoided the linguistic perils focused upon by the IRS. Second, the court rejected debtor’s

argument in part for policy reasons, stating that “Congress has made the choice between

collection of revenue and rehabilitation of the debtor by making it extremely difficult for

a debtor to avoid payment of taxes under the Bankruptcy Code.” Id. at 585-86. Congress

has made a different choice with regard to post-petition interest, however, and that choice

is reflected in the Bankruptcy Code’s general rule halting the accrual of interest at the

time debtor files a petition. See 11 U.S.C. § 502(b).


                                            - 13 -
       Furthermore, we are not convinced that any lack of clarity in the language of

§ 523(a)(1)(A) is resolved by the IRS’s construction. In an attempt to reconcile the word

“allowed” in §§ 523(a)(1)(A) and 507(a)(7), the interpretation offered by the government

would simply nullify the meaning of the more significant word “unsecured.” We believe

the better reading preserves the unambiguous directive that claims deserving priority

status under § 507(a)(7) must be unsecured.

       The government’s reliance on legislative history is also misplaced. “The plain

meaning of legislation should be conclusive, except in the ‘rare cases [in which] the

literal application of the statute will produce a result demonstrably at odds with the

intentions of its drafters.’” Ron Pair Enterprises, 489 U.S. at 242 (quoting Griffin v.

Oceanic Contractors, Inc., 458 U.S. 564, 571 (1982)). It is apparent that excepting from

discharge only those debts under § 507(a)(1) held by unsecured claims does not

contravene the intent of the drafters of the Bankruptcy Code; indeed the purpose of § 507

is to set priorities for repayment of certain unsecured claims.3 The creation of § 507

evidences Congress’s acknowledgment that particular types of unsecured claims deserve

special status to ensure repayment before depletion of the bankruptcy estate. See 4

Collier on Bankruptcy ¶ 507.02[1][a], p.507-13; In re Reichert, 138 B.R. 522, 526


       3
          We note that under the 1994 amendments to the Bankruptcy Code, renumbered
§ 507(a)(7) refers to “allowed claims to a spouse, former spouse, or child of the debtor
....” The deletion of the word “unsecured” from one category only of § 507(a)(7)
undercuts the government’s theory the word appears as mere surplusage since the drafters
clearly intended the modifier to apply to certain categories of claims and not to others.

                                            - 14 -
(Bankr. W.D. Mich. 1992). It is unnecessary to extend that special status to secured

claims because those claims are entitled to repayment from an alternative source of funds

-- the value of the property encumbered by a lien. “The conclusion is inescapable that a

claim cannot be both secured and deserving of priority status under § 507 at the same

time.”4 Reichert, 138 B.R. at 526-27. See also In re Darnell, 834 F.2d 1263, 1268 (6th

Cir. 1987) (maintaining distinction under the Bankruptcy Code between secured and

priority unsecured claims). The language of the Bankruptcy Code creates a distinction

between the two types of claims for purposes including repayment and dischargeability.

There is no reason to suspect Congress did not intend to create such a distinction.

       Even if we did examine legislative history as the IRS urges, it would be of little

assistance to the government since we believe the legislative history of § 523(a)(1)(A)

actually favors the debtors’ interpretation. The version of § 523(a)(1) contained in the

bill considered by the Senate in September 1978 provided that a tax entitled to specified

priorities would be excepted from discharge whether or not a claim for such tax had been

filed. The Report of the Senate Judiciary Committee on H.R.S. 2266 makes this comment

upon the Senate version of § 523(a)(1):


       4
         The government insists the district court erred in relying on In re Reichert,
because the court in that case examined the connection between §§ 1129(a)(9)(C) and
507(a)(7) rather than between §§ 523(a)(1)(A) and 507(a)(7). We recognize Reichert
does not directly solve the problem presented to this court; still, we find the bankruptcy
court’s insightful analysis of the distinction between secured and unsecured claims and
the advantages afforded creditors holding each to be illuminating even when applied to
other sections of the Code.

                                           - 15 -
       Subsection (a) lists nine kinds of debts excepted from discharge. Taxes that
       are excepted from discharge are set forth in paragraph (1) ... These categories
       include taxes for which the tax authority failed to file a claim against the estate
       or filed its claim late. Whether or not the taxing authority’s claim is secured
       will also not affect the claim’s nondischargeability if the tax liability in
       question is otherwise entitled to priority.

S. Rep. No. 95-989, 95th Cong., 2d Sess. 77-78 (1978), 1978 U.S.C.C.A.N. 5787, 5863.

The House version of § 523(a) focused on the allowance of claims, and made no

reference to whether the claim had been filed or was secured; the bill excepted from

discharge any debt for a tax “of the kind and for the periods specified in 507(6)

[renumbered 507(7) at the time of these proceedings] of this title, whether or not a claim

for such tax was allowed.” H.R. 8200, 95th Cong., 1st Sess. § 523(a)(1) (1977). The

final version of § 523(a) included language from the Senate bill concerning the filing of a

claim and from the House bill concerning allowance of a claim; but in the end, Congress

omitted the language that would have brought both secured and unsecured claims under

the purview of § 507. Though careful not to overemphasize the significance of the

history of § 523(a)(1), we nonetheless find the progression of the provision’s language

more consistent with an interpretation upholding the distinction between unsecured and

secured tax claims.

       We conclude §§ 523(a)(1)(A) and 507(a)(7) clearly authorize the exception of tax

debts and interest from dischargeability under 11 U.S.C. § 1141(d)(2) only when the

governmental entity holds an unsecured claim to that debt. Accordingly, we AFFIRM

the judgment of the district court.

                                             - 16 -
- 17 -
