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In re Gould

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT


April 30, 2010

IN RE: ANTHONY S. GOULD, DEBTOR,
ANTHONY S. GOULD, APPELLANT,
v.
UNITED STATES OF AMERICA, APPELLEE, AND DEVIN DERHAM-BURK, CHAPTER 13; UNITED STATES TRUSTEE, TRUSTEES.

Appeal from the Ninth Circuit Bankruptcy Appellate Panel Markell, Dunn, and Jury, Bankruptcy Judges, Presiding, BAP No. NC-08-1100-JuMkD.

FOR PUBLICATION

ORDER

Argued and Submitted February 9, 2010 -- San Francisco, California

Before: Diarmuid F. O'Scannlain, Stephen S. Trott and Richard A. Paez, Circuit Judges.

The published order filed April 19, 2010, is hereby WITHDRAWN.

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.

Accordingly, the judgment of the Bankruptcy Appellate Panel is AFFIRMED.

20100430

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