JOYCE BIHARY, Bankruptcy Judge.
This adversary proceeding is before the Court on defendant's motion for summary judgment. This is a core proceeding under 28 U.S.C. § 157(b)(2)(I). Plaintiff filed a complaint requesting a determination that a tax liability in the amount of $1,420.18 to the State of Georgia Department of Revenue (the "State" or "defendant") is not excepted from discharge under 11 U.S.C. § 523(a)(1).
The State filed a motion for summary judgment, arguing that the material facts are undisputed and that the debt is excepted from discharge as a matter of law. First, the State argues that plaintiff's 1987 state income tax liability is not dischargeable under 11 U.S.C. § 523(a)(1)(B)(i), because plaintiff did not file an amended state return after the United States Internal Revenue Service (the "IRS") assessed a deficiency in plaintiff's 1987 federal adjusted gross income. Alternatively, the State contends that the tax liability at issue is not dischargeable under 11 U.S.C. § 523(a)(1)(A), because plaintiff did not file the amended return which was due within three years of the filing of the plaintiff's bankruptcy petition.
The key issue is whether plaintiff was required under Georgia law to file an amended state return after his federal tax obligation was reassessed. After reviewing the motion, plaintiff's response, and the entire record, the Court concludes that plaintiff was required to file an amended return and the State's motion for summary judgment should be GRANTED.
The material facts are undisputed.
Plaintiff does not contend that he ever requested an informal meeting or set forth any disagreements in writing with the proposed assessment. On October 24, 1991, the State issued an "Official Notice of Assessment and Demand for Payment" pursuant to O.C.G.A. § 48-2-45 in the amount of $1,194.00 in taxes, $513.82 in interest and $17.91 in penalties for a total of $1,725.73.
On September 17, 1992, plaintiff filed a Chapter 7 bankruptcy case. Plaintiff then filed this adversary proceeding, alleging that the tax debt to the State for 1987 should be declared nondischargeable.
Section § 523(a)(1) of the Bankruptcy Code provides as follows:
If plaintiff was required to file an amended state return after the federal assessment, there are two grounds on which the tax debt for 1987 would be nondischargeable. First, under 11 U.S.C. § 523(a)(1)(B)(i), plaintiff's tax liability is nondischargeable if he did not file a required return with the State of Georgia after the IRS reassessed his federal adjusted gross income. Second, if plaintiff failed to file a required return within three years of the filing of bankruptcy, plaintiff's tax debt to the State would be entitled to priority under § 507(a)(7)(A)(i), and would in turn be excepted from discharge under § 523(a)(1)(A).
The parties disagree on whether plaintiff was required to file a return. The State cites O.C.G.A. § 48-7-82(e)(1), which provides as follows:
O.C.G.A. § 48-7-82(e)(1) (Michie, Supp. 1992) (emphasis added).
The statute quite clearly indicates that a return here is required, and this construction is supported by Judge Herschner's decision in In re Wilson, Case No. 90-53553 (Bankr.M.D.Ga. Jan. 17, 1992).
Plaintiff argues that O.C.G.A. § 48-7-82(e)(1) lacks the specificity of the Illinois statute construed in Haywood and asserts that plaintiff here was not required to file an amended return, citing Blackwell v. Commonwealth of Virginia Department of Taxation (In re Blackwell), 115 B.R. 86 (Bankr.W.D.Va.1990). The Virginia statute in Blackwell, however, provided that the "taxpayer shall report" IRS changes to the State Tax Department, and the Court held that the term "report" was not equivalent to filing a "return." Thus, the tax obligation there was not excepted from discharge under 11 U.S.C. § 523(a)(1)(B)(i). Here, however, the Georgia statute, O.C.G.A. § 48-7-82(e)(1), states that a "return" is required.
Plaintiff also argues that the State can file a return on behalf of a taxpayer who fails to do so
Next, plaintiff argues that the notice dated August 15, 1991 and the Department of Revenue's instruction booklet were confusing, and that they relieved the debtor from any obligation to file an amended return. This argument is also without merit for several reasons. First, the notice is dated some sixteen months after the IRS' final determination of a change in debtor's income which was on or about April 10, 1990. Pursuant to O.C.G.A. § 48-7-82(e), debtor was required to file an amended return within 180 days of the IRS determination or by October 10, 1990. Thus, debtor could not have relied on the notice in August of 1991 to excuse him from filing a return in October of 1990. Second, the Court has reviewed the instruction booklet referred to by debtor and does not find it to be particularly confusing. The booklet refers to the form to be used in filing an amended return, and it refers to the situation when a federal audit results in a change in net income. The taxpayer is advised that he/she is to furnish in 180 days, a schedule and a "return reflecting the change." Third, even if the instruction booklet were confusing, the government publication does not bind the State. See CWT Farms, Inc. v. Commissioner, 755 F.2d 790, 803 (11th Cir.1985); Carpenter v. United States, 495 F.2d 175, 184 (5th Cir. 1974); Adler v. Commissioner, 330 F.2d 91 (9th Cir.1964); see also O.C.G.A. § 45-6-5.
Debtor filed a supplemental brief on June 17, 1993, in which he raised new facts. He contends that the State should be equitably estopped from asserting that the debtor's 1987 tax liability is not dischargeable, contending that the State misled Mr. Jones into believing that no amended tax return was due. This argument is not supported by the new facts or the law. Debtor presents an affidavit of a man named Ron Turner who states that on or about June 10, 1993, he called eleven telephone numbers of eleven offices of the Georgia Department of Revenue and asked whether he needed to do anything for the State of Georgia if his federal tax return was audited, or whether the State would just send him a bill. He tape recorded each of these telephone conversations without informing the other parties to the conversation, and
Debtor argues in his brief that the majority of the eleven telephonic responses were misleading and that six of the employees of the Department of Revenue told him to wait on a bill from the State. The Court has reviewed the transcripts and does not find these conversations to be misleading. In fact, seven of the individuals called told Mr. Turner he needed to amend his return (Barbara Williams, Roy Chaney, Charles McGuire, Pat Hanson, Deneen Barton, Pete Powell, and Ms. Tate). Two of the individuals (Bob Fuller and Daphne Moss) told Mr. Turner to get back in touch with them. Mr. Fuller told Mr. Turner to call him when he received the return or federal audit and a Miss Shifflet would go over it with him, and Mr. Moss told Mr. Turner to bring the returns and changes all in within 120 days and he would take a look at it. A Ms. Jones said nothing that sounded as if she knew what to do, and only one person, Scarlett Cato, said anything that could arguably be interpreted to mean that debtor did not need to amend his state tax return.
Last but not least, the oral advice allegedly given here by government employees was advisory only and did not bind the State. See Heckler v. Community Health Services of Crawford County, Inc., 467 U.S. 51, 104 S.Ct. 2218, 81 L.Ed.2d 42 (1984); S & M Inv. Co. v. Tahoe Regional Planning Agency, 911 F.2d 324 (9th Cir. 1990); United States v. Vonderau, 837 F.2d 1540 (11th Cir.1988); In re Larson, 862 F.2d 112 (7th Cir.1988); see also Henderson v. Carter, 229 Ga. 876, 195 S.E.2d 4 (1972).
In accordance with the above reasoning, defendant's motion for summary judgment is hereby GRANTED and the plaintiff's 1987 income tax liability to the State of Georgia is not dischargeable under 11 U.S.C. § 523(a)(1)(B)(i) and § 523(a)(1)(A). A separate judgment will issue.
IT IS SO ORDERED.