Critics of the Easterbrook approach as applied by the Eighth Circuit might cursorily dismiss it as inapplicable after BAPCPA because the hanging paragraph of [section] 523(a) refers to "applicable filing requirements." (88) Such criticism, however, ignores the fact that the IRS still accepts late returns, provides instruction on how to file them, and will readily use them for tax purposes to replace estimates in substitute returns.
In an attempt to define "return," Congress added the following hanging paragraph to [section] 523(a) in 2005:
(96) The court recognized that "[i]n passing [section] 523(a), Congress made clear that '[i]n general, tax claims which are nondischargeable, despite a lack of priority, are those to whose staleness the debtor contributed by some wrong-doing or serious fault.'" (97) The court then surmised that when Congress drafted the hanging paragraph of [section] 523(a) in BAPCPA "to differentiate between [section] 6020(a) and [section] 6020(b) returns, [it] likely wanted to reward taxpayers who cooperated with the [IRS]." (98) Ultimately, the court found such expressions of legislative intent to be "consonant with the pre-BAPCPA test's emphasis 'that where a fiduciary, in good faith, makes what it deems the appropriate return, which discloses all of the data from which the tax ...
In re Fleming consisted of a consolidation of cases in which the same issue was presented to Judges Schermer and Surratt-States (the co-author here): When the "hanging paragraph
" applies, is the debtor compelled to propose a plan that provides for the contract rate of interest instead of the so-called Till, or local rule, rate?