                     United States Court of Appeals
                           FOR THE EIGHTH CIRCUIT
                                    ___________

                                    No. 00-3102
                                    ___________

In re: Joseph A. May,                    *
                                         *
                Debtor,                  *
                                         *
-----------------------------------      *
                                         * Appeal from the United States
Joseph A. May,                           * Bankruptcy Appellate Panel
                                         * For the Eighth Circuit.
                Appellant,               *
                                         *      [UNPUBLISHED]
        v.                               *
                                         *
United States of America; Missouri       *
Department of Revenue,                   *
                                         *
                Appellees.               *
                                    ___________

                          Submitted: March 7, 2001
                              Filed: March 12, 2001
                                  ___________

Before BOWMAN, BEAM, and LOKEN, Circuit Judges.
                          ___________

PER CURIAM.

       After filing a petition seeking chapter 7 bankruptcy relief, Joseph A. May filed
this adversary proceeding seeking a declaration that his tax liabilities to the United
States and to the Missouri Department of Revenue are dischargeable. The Bankruptcy
Court1 dismissed the Missouri Department on the ground of Eleventh Amendment
immunity from suit and granted summary judgment in favor of the United States for
most of the tax years in question. The Eighth Circuit Bankruptcy Appellate Panel
affirmed. May appeals the dismissal of the Missouri Department and the grant of
summary judgment to the United States for tax years 1990, 1991, 1992, and 1993.

        Regarding the dismissal of the Missouri Department, we agree that it has not yet
filed a proof of claim in the chapter 7 proceeding and therefore is entitled to Eleventh
Amendment immunity at the present time. However, May will no doubt be entitled to
raise the dischargeability question if and when the Missouri Department files a claim
in the federal bankruptcy proceeding, or seeks to enforce the alleged tax liabilities in
state court. Therefore, we modify the dismissal of the Missouri Department to be
without prejudice.

      We affirm the grant of summary judgment in favor of the United States for the
reasons stated in the Bankruptcy Court and Bankruptcy Appellate Panel opinions. See
8th Cir. R. 47B. We grant the United States’ motion to strike documents in May’s
addendum that are not part of the Bankruptcy Court record. See Dakota Indus., Inc.
v. Dakota Sportswear, Inc., 988 F.2d 61, 63 (8th Cir. 1993).

      A true copy.

             Attest:

                     CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.




      1
      The HONORABLE FRANK W. KOGER, Chief Judge, United States
Bankruptcy Court for the Western District of Missouri.
                                          -2-
