IN RE: Anthony S. GOULD (2010)

United States Court of Appeals,Ninth Circuit.

IN RE: Anthony S. GOULD, Debtor, Anthony S. Gould, Appellant, v. United States of America, Appellee, Devin Derham-Burk, Chapter 13; United States Trustee, Trustees.

No. 09-60008.

Decided: April 19, 2010

Before DIARMUID F. O'SCANNLAIN, STEPHEN S. TROTT and RICHARD A. PAEZ, Circuit Judges.

David A. Boone and Leela V. Menon, Law Offices of David A. Boone, San Jose, CA, for the appellant. Randolph L. Hutter, Department of Justice, Tax Division, Washington D.C., for the appellee.

ORDER

The central issue in this case is whether or not the Bankruptcy Court erred in denying the government's motion to lift the automatic stay to allow the Internal Revenue Service “IRS” to offset the debtor's income tax overpayment against his outstanding federal income tax liabilities pursuant to 11 U.S.C. § 553 and 26 U.S.C. § 6402(a). For the reasons given by our Bankruptcy Appellate Panel in In re Gould, 401 B.R. 415 (B.A.P. 9th Cir.2009), we reverse the decision of the Bankruptcy Court, In re Gould, 389 B.R. 105 (Bankr.N.D.Cal.2008), and remand for further proceedings. We note that for cases filed after October 17, 2005, 11 U.S.C. § 362(b)(26) permits the IRS to setoff a pre-petition income tax overpayment against a pre-petition income tax liability without seeking relief from the automatic stay.

REVERSED and REMANDED.

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