- 31 -
that the Bankruptcy Court did not discharge petitioners from
their unpaid tax liabilities for 1994 and 1995. A fortiori,
respondent did not abuse respondent’s discretion in determining
to sustain the lien with respect to 1994 and 1995 on the ground
that the Bankruptcy Court did not discharge petitioners from
those liabilities. Regardless of the standard of review, peti-
tioners have not satisfied that standard. In other words,
resolution of the bankruptcy discharge issue does not depend on
the standard of review. I therefore see no harm in the majority
opinion’s not explicitly stating the standard of review.
I now return to Judge Vasquez’s statement that “Whether
petitioners’ taxes have been discharged in bankruptcy appears to
be a challenge to the existence or amount of their underlying tax
liability under section 6330(c)(2)(B).” While that is not an
unreasonable position, I believe the better view is that the
bankruptcy discharge issue in the case at hand does not relate to
the existence or amount of the underlying tax liability. That is
because the so-called discharge in bankruptcy does not discharge
a tax debt; it discharges the individual debtor from the tax
debt. As pertinent here, 11 U.S.C. section 523(a)(1)(B) provides
that a discharge under section 727, 1141, 1228(a), 1228(b), or
1328(b) of title 11 does not “discharge an individual debtor from
any debt” for a tax with respect to which a return was filed late
and within the two-year period immediately preceding the date of
Page: Previous 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 NextLast modified: May 25, 2011