Unpublished Dispositionfrank Wesley Goans, Jr., and Mildred Goans, Plaintiffs-appellants v. United States of America, Defendant-appellee, 803 F.2d 719 (6th Cir. 1986)

BEFORE: MILBURN and BOGGS, Circuit Judges; HARVEY, Senior District Judge^* 

ORDER

This matter is before the Court for consideration of appellants' motion to stay the order of the district court which affirmed the Bankruptcy Court's decision that certain tax liabilities of appellant Mildred Goans were not dischargeable in bankruptcy proceedings. The government has responded in opposition to the motion for a stay. This appeal has been referred to a panel of the Court pursuant to Rule 9(a), Rules of the Sixth Circuit. Upon consideration of the record and briefs, the panel unanimously agrees that oral argument is unnecessary. Rule 34(a), Federal Rules of Appellate Procedure.

The procedural history of this appeal is summarized as follows. On May 8, 1984, the United States Tax Court entered an order and decision that appellant Mildred Goans owed a total of $4,935 in taxes for 1976-1979. The Tax Court found that appellant Mildred Goans did not file tax returns for those years. No appeal was prosecuted from that decision. Appellants then filed a complaint in the Bankruptcy Court, in which they sought a determination that the aforementioned tax deficiency was dischargeable because the Bankruptcy Court had entered a final decree in appellants' bankruptcy proceedings on December 7, 1983. On September 9, 1985, the Bankruptcy Court filed a memorandum and order which concluded that the tax liabilities for the years 1976-1979 were not dischargeable under 11 U.S.C. § 523(a) (1) (B). Appellants appealed that decision to the district court which determined that the Tax Court decision was res judicata and further determined that the Bankruptcy Court ruling of a nondischargeability was correct as a matter of law. This appeal followed.

With respect to the merits of this appeal, it appears that the only issue properly before the Court is whether the tax liability for the years 1976-1979 was dischargeable pursuant to appellants' bankruptcy. Applying the provisions of 11 U.S.C. § 523(a) (1) (B) (i) to the proceedings herein, appellants' bankruptcy does not discharge appellants as debtors from any tax debt with respect to which a return, if required, was not filed. Appellant Mildred Goans did not file tax returns for 1976-1979; liability for those years is therefore not dischargeable. Appellants' reliance on 18 U.S.C. § 3282 is inappropriate because that statute is a statute of limitations for non-capital criminal offenses and this proceedings is a civil action by the Internal Revenue Service to recover tax deficiencies from appellants.

It appears that there are no non-frivolous issues for consideration in this appeal. Rule 9(d) (2), Rules of the Sixth Circuit. Therefore, the order of the district court is affirmed. The motion for a stay is denied as moot.