            United States Bankruptcy Appellate Panel
                        FOR THE EIGHTH CIRCUIT

                               _______________

                                  07-6037EM
                               _______________

In re: Robert Wayne Hicks Sr. and     *
       Janice Virginia Hicks,         *
                                      *
      Debtors                         *
                                      *
Robert Wayne Hicks Sr. and            *   Appeal from the United States
Janice Virginia Hicks,                *   Bankruptcy Court for the
                                      *   Eastern District of Missouri
      Plaintiffs-Appellants           *
                                      *
            v.                        *
                                      *
Missouri Department of Revenue,       *
Arizona Department of Revenue, and    *
Internal Revenue Service,             *
                                      *
      Defendants-Appellees            *

                              __________________

                          Submitted: October 30, 2007
                           Filed: November 7, 2007
                            ___________________

KRESSEL, Chief Judge, FEDERMAN and VENTERS, Bankruptcy Judges

FEDERMAN, Bankruptcy Judge
       Debtors Robert Wayne Hicks, Sr., and Janice Virginia Hicks appeal from the
Judgment of the Bankruptcy Court1 granting summary judgment in favor of each of
the Defendants, the Missouri Department of Revenue, the Arizona Department of
Revenue, and the Internal Revenue Service, and finding that each of the Defendants
has claims against the Debtors for unpaid taxes, that any liens for such taxes are not
affected by the Debtors’ bankruptcy filing, and that the debts to each of the
Defendants for the unpaid taxes are nondischargeable under 11 U.S.C. § 523(a)(1).
For the reasons that follow, the Judgment is AFFIRMED.

                              FACTUAL BACKGROUND

       The Debtors filed their Chapter 7 Petition on October 17, 2006. Their
schedules listed debts owed to each of the Defendants. They admit that they have not
paid any income taxes from 1983 through 2003, nor have they filed federal or state
income tax returns, even though they earned income in those years. Accordingly, the
IRS assessed taxes against them, without the benefit of returns, based on information
it had about their income. The Debtors filed their bankruptcy case in an effort to stop
the Defendants’ efforts to collect the unpaid taxes.

       The filing of the Petition automatically triggered an entry in the Court’s docket
in their case setting April 16, 2007 as the deadline for governmental agencies to file
proofs of claim. The same date the Petition was filed, the Court issued an Order and
Notice of Chapter 7 Bankruptcy Case, Meeting of Creditors, & Deadlines (the
“Bankruptcy Notice”) which established various dates and deadlines in the case. As
relevant here, because it appeared from the Debtors’ schedules that the case was a “no
asset” Chapter 7 case, the Bankruptcy Notice directed creditors to not file proofs of




       1
         The Honorable Barry. S. Schermer, Chief Judge, United States Bankruptcy Court for
the Eastern District of Missouri.

                                              2
claim unless they received a subsequent notice to do so. Because no subsequent
notice was ever sent, there was never a deadline for filing proofs of claim.

       After the Trustee in the case filed a Report of No Distribution advising the
Court that the estate contained no assets for the benefit of creditors, on January 18,
2007, the Court issued the Debtors a discharge (as to dischargeable debts), entered
its decree abandoning all property of the estate, and closed the case as a “no asset”
case. On January 29, 2007, at the request of the Debtors, the Court reopened their
case. A month later, the Debtors initiated an adversary proceeding against the
Defendants, alleging that any claims that the Defendants had against them, including
any tax liens, should be discharged. In essence, the Debtors argued that the
Defendants’ claims should be barred because the laws on which the Defendants base
the Debtors’ tax liability are invalid or inapplicable to them. Alternatively, even if
the Debtors were liable for the taxes, the Defendants should be barred from asserting
such claims because none of the Defendants filed proofs of claim in the case.2 Thus,
they assert, any such claims, if valid, were discharged in their bankruptcy case. The
Bankruptcy Court granted summary judgment in each of the Defendants’ favor, also
declaring each of the debts to be nondischargeable under § 523(a)(1)(B).3 The
Debtors appeal.

                                  STANDARD OF REVIEW

      We review the bankruptcy court’s grant of summary judgment de novo,
applying the same standard used by the bankruptcy court and viewing the evidence


        2
            In fact, the Arizona Department of Revenue did file a proof of claim on November 6,
2006.
        3
         The Court issued Orders granting summary judgment in favor of the Missouri
Department of Revenue, the Arizona Department of Revenue, and the Internal Revenue Service
on April 23, May 30, and June 18, 2007, respectively, and entered Judgment in each of their
favor on June 18, 2007.

                                                 3
in the light most favorable to the Debtors as the nonmoving party. Summary
judgment is appropriate if the record shows that there is no genuine issue as to any
material fact and that the moving party is entitled to judgment as a matter of law.4

       Upon a motion for summary judgment, the initial burden of proof is
       allocated to the movant in the form of demonstrating that there is an
       absence of evidence to support the nonmoving party’s case. . . . Once
       met, the burden then shifts to the nonmoving party to go beyond the
       pleadings and by her own affidavits, or by the depositions, answers to
       interrogatories, and admissions on file, designate specific facts showing
       that there is a genuine issue for trial.5

As discussed more fully below, there is no genuine dispute that the Debtors did not
file federal or state income tax returns for the years 1983 through 2003. The Debtors
also do not dispute that they had income for those years. Rather, the dispute here
centers around whether they were required by law to file income tax returns and pay
taxes on that income (i.e., whether the tax laws and liens are valid), whether the
Defendants were required to file proofs of claim, and whether the debts were
nondischargeable under § 523(a)(1)(B) because the Debtors failed to file the returns.
Because these are all legal issues, summary judgment was appropriate.

                                        DISCUSSION

     The Debtors’ adversary Complaint, along with the attachments and the other
documents filed in the proceeding, allege many reasons why the Defendants’ tax




       4
         Fed. R. Civ. P. 56(c), made applicable in bankruptcy cases by Fed. R. Bankr. P. 7056;
Williams v. Marlar (In re Marlar), 252 B.R. 743, 750 (B.A.P. 8th Cir. 2000) (citing Dulany v.
Carnahan, 132 F.3d 1234, 1237 (8th Cir. 1997)).
       5
         Id. (citing Celotex Corp v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 2553-54, 91
L.Ed.2d 265 (1986)) (additional citations and internal quotation marks omitted).

                                               4
claims against them are invalid or should be discharged. We start with the question
as to the validity of the tax claims and liens against the Debtors.

       Because the Debtors did not file their own income tax returns, the IRS assessed
the taxes for the years 1983 through 2003, based on its evidence of the Debtors’
income from those years. The IRS possesses the authority to assess taxes,6 and its
assessment of a tax is presumed to be correct.7 Further, as the IRS points out, federal
tax liens are imposed upon “all property and rights to property, whether real or
personal, belonging” to a person who fails to pay federal taxes, penalties, and interest
once assessed pursuant to Internal Revenue Code § 6321.8 In support of its claim, the
IRS submitted an affidavit by its Revenue Officer, William H. Walton, along with the
IRS’ official transcripts detailing the Debtors’ assessed tax liabilities for each of the
missing years.

      Similarly, the states of Missouri and Arizona possess the authority to assess
taxes against their residents.9 The MODOR and ADOR claims were based on
Missouri and Arizona’s estimation of the Debtors’ state tax liability, grounded on the


       6
         United States. v. Fior D’Italia, Inc., 536 U.S. 238, 243, 122 S.Ct. 2117, 2122, 153
L.Ed.2d 280 (2002).
       7
          Long v. Comm’r of Internal Revenue, 757 F.2d 957, 959 (8th Cir. 1985) (“in deficiency
actions the Commissioner’s determination is presumed correct, and the petitioner bears the
burden to prove otherwise.”) (citation omitted).
       8
        In re Nerland Oil, Inc., 303 F.3d 911, 916 (8th Cir. 2002) (“A federal tax lien attaches
and becomes choate at assessment.”).
       9
          See Mo. Const. Art. X § 1 (permitting the general assembly to exercise the taxing
power for state purposes), and § 4(d) (permitting a tax measured by income); Mo. Rev. Stat. §
143.011 (imposing a tax on the Missouri income of every resident), and § 143.121 (Missouri
adjusted gross income is defined as the federal adjusted gross income subject to certain
modifications); A.R.S. §§ 42-1001-1254 (Title 42 of the Arizona Revised Statutes, prescribing
Arizona residents’ obligations to file tax returns and pay taxes, and imposing criminal liability
for the failure to file and pay taxes in accordance with the law).

                                                 5
IRS’ assessments of liability, for the years that the Debtors lived in those states,
respectively. The MODOR and ADOR each filed affidavits of their agents in support
of each of their motions for summary judgment, in which the agents described how
their taxes were assessed and that an Arizona tax lien was recorded against the
Debtors.

       The Debtors assert that they were not required to file any returns, or pay any
tax on their income, because, inter alia, the Internal Revenue Code is invalid for a
number of reasons and inapplicable to them because they are not officers or
employees of the United States or residents of the District of Columbia, nor do they
have a contract with the IRS, MODOR, or ADOR. They say that this case is a
“massive fraud” and a conspiracy perpetrated upon them by the IRS. They also assert
that no individual income tax exists in Missouri or Arizona. Further, any liens based
on the invalid tax assessments are likewise invalid. In addition, they have repeatedly
questioned the credentials and authority of the individual agents and attorneys who
have made the tax assessments, recorded the liens, and pursued these claims in the
Bankruptcy Court. In sum, the Debtors’ arguments that they are not liable for any of
the taxes are typical tax protestor arguments. The Eighth Circuit has expressly
rejected such arguments, finding them to be “completely without merit [and] patently
frivolous,” and stating that they should “be rejected without expending any more of
[the] Court’s resources on their discussion.”10 As the Eighth Circuit did, we reject,
without further discussion, the Debtors’ numerous arguments concerning the validity
of the tax laws.

        Since the Defendants each filed affidavits establishing the Debtors’ tax
liabilities, which were not rebutted by the Debtors except by their tax protester


       10
          United States v. Jagim, 978 F.2d 1032, 1036 (8th Cir. 1992). Accord United States v.
Hilgeford, 7 F.3d 1340, 1342 (7th Cir. 1993) (reinforcing its rejection of the “‘shop worn’
argument of the tax protester movement” . . . “without expending any more of this Court’s
resources on [its] discussion.”).

                                               6
arguments, the Bankruptcy Court did not err in concluding that the Defendants’
claims are valid. In addition, the Bankruptcy Court did not err in concluding that any
liens based on those taxes pass through the bankruptcy case unaffected.11

       The Debtors next argue that, since the Defendants failed to file proofs of claim,
any such claims are barred and, therefore, discharged. However, this was a “no asset”
bankruptcy case, and Rule 2002(e) authorizes a court to notify creditors that no proof
of claim need be filed in such a case. That rule provides:

       NOTICE OF NO DIVIDEND. In a chapter 7 liquidation case, if it
       appears from the schedules that there are no assets from which a
       dividend can be paid, the notice of the meeting of creditors may include
       a statement to that effect; that it is unnecessary to file claims; and that
       if sufficient assets become available for the payment of a dividend,
       further notice will be given for the filing of claims.12

This is precisely what the Bankruptcy Notice did. “[T]he sole purpose of a proof of
claim is to allow the creditor to assert a right to participation in the distribution of
assets,” and, as the Bankruptcy Court in this case found, requiring creditors to file
proofs of claim in a no asset case would have been futile and a waste of resources.13




       11
           Dewsnup v. Timm, 502 U.S. 410, 417, 112 S.Ct. 773, 778, 116 L.Ed.2d 903 (1992)
(“liens pass through bankruptcy unaffected”).
       12
            Fed. R. Bankr. P. 2002(e).
       13
            In re Moyette, 231 B.R. 494, 499 (E.D. N.Y. 1999) (holding that, in a no asset case, the
right to file a proof of claim is “meaningless and worthless” because there simply are no assets to
which to lay a claim) (citing In re Mendiola, 99 B.R. 864, 867 (Bankr. N.D. Ill. 1989)).

                                                 7
      In addition, taxes for which the Debtors did not file tax returns are
nondischargeable under § 523(a)(1)(B),14 and the creditor need not file a proof of
claim or object to the discharge for that to be so.15

       Again, the Debtors admit that they had income from 1983 through 2003, and
that they did not file state or federal income tax returns for those years. Further, the
Defendants each produced evidence in support of their claims that the Debtors were
liable for the payment of state and federal income taxes for those years. Accordingly,
the Bankruptcy Court did not err in finding the debts were nondischargeable.

       Finally, the Debtors assert they were prejudiced because they were not notified
that creditors were being advised not to file claims and, therefore, they were
prevented from presenting evidence that they owed nothing to the Defendants.
However, the Debtors were served with a copy of the Bankruptcy Notice, which
contained that information, by first class mail, at the address they provided on their
schedules. Additionally, the Debtors did have the opportunity to challenge the tax
debts in the adversary proceeding. Accordingly, we see no prejudice to the Debtors.



       14
          Section 523(a)(1)(B)(i) provides that a discharge under § 727 does not discharge an
individual debtor from any debt for a tax with respect to which a return, if required, was not filed.
11 U.S.C. § 523(a)(1)(B)(i).
       15
            In re Everly, 346 B.R. 791, 795-96 (B.A.P. 8th Cir. 2006) (all of the exceptions to
discharge in § 523(a), except for debts of a kind listed in § 523(a)(2), (4), or (6), are self-
effectuating and no action is required before the discharge is entered); In re Range, 48 Fed.
Appx. 103 at *6, n.2 (5th Cir. 2002) (holding that a tax liability excepted from discharge under §
523(a)(1)(C) is nondischargeable as a matter of law, and no additional action is required by the
creditor). Although In re Range referred specifically to § 523(a)(1)(C), its discussion is equally
applicable to § 523(a)(1)(B). See also United States v. Ellsworth (In re Ellsworth), 158 B.R. 856,
858 (M.D. Fla. 1993) (holding that under § 523(a)(1), there is no automatic discharge of the debt
upon failure of the creditor to file an adversary proceeding in the bankruptcy court; if a challenge
is made to the nondischargeability of the tax liability, it must come from the debtor, since tax
liabilities covered by § 523(a)(1) comprise a claim or debt of a kind which would not otherwise
be discharged pursuant to § 523(c) in the event that the creditor failed to take timely action.).

                                                 8
       For the reasons stated above, the Bankruptcy Court did not err in concluding
that the Defendants’ claims and liens for unpaid taxes are valid and nondischargeable
under 11 U.S.C. § 523(a)(1)(B). The Judgment of the Bankruptcy Court is, therefore,
AFFIRMED.




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