429 F2d 579 Johnson v. United States

429 F.2d 579

70-2 USTC P 9556

In the Matter of Kenneth Edward JOHNSON, Sr., and Essie W.
Johnson, Bankrupts, Steve M. Watkins, Trustee, Appellant,
UNITED STATES of America, Appellee.

No. 29307.

United States Court of Appeals, Fifth Circuit.

June 30, 1970.

Steve M. Watkins, pro se.

Truett & Watkins, Tallahassee, Fla., for appellant.

Clinton Ashmore, Asst. U.S. Atty., Tallahassee, Fla., Johnnie M. Walters, Asst. Atty Gen., Lee A. Jackson, George W. Shaffer, Crombie J. D. Garrett, Attys., Tax Division, Dept. of Justice, Washington, D.C., William H. Stafford Jr., U.S. Atty., Tallahassee, Fla., for appellee.

Before JONES, WISDOM and COLEMAN, Circuit Judges.


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Kenneth Edward Johnson, Sr. and Essie W. Johnson, husband and wife, filed a petition in bankruptcy. Steve M. Watkins is the Trustee in bankruptcy and the appellant here. The Johnsons had not filed income tax returns for 1966 and 1967. The Internal Revenue Service filed a claim in the bankruptcy for taxes and asserted priority. Subsequent to the time for filing claims, the Internal Revenue Service filed an amended claim. The Referee allowed the original claim and disallowed the amended claim on the primary ground that the amended claim was so different from the original that it could not be properly called an amendment. The Referee's order was reviewed by the district court which reversed the determination of the Referee and allowed the Government's amended claim. The matter is before us on appeal from the district court's order.


A great deal of the brief of the appellant trustee is devoted to the contention that the Referee was correct in his conclusion that the amended claim was so different from the original that it was improper as an amendment and was barred by the lapse of time. This contention is no longer urged and the Trustee concedes that the amendment was properly filed. The Trustee urges here that the matter was within the equitable powers of the Referee in bankruptcy and that it was error for the district court to overrule the Referee's determination. We find no merit in this position and are not persuaded that there was any error in the tax determination. The judgment of the district court is