Perkins v. MA Department of Revenue , 779 F.3d 1 ( 2015 )


Menu:
  •           United States Court of Appeals
    For the First Circuit
    No. 14-1328
    IN RE: BRIAN S. FAHEY,
    Debtor
    BRIAN S. FAHEY,
    Appellant,
    v.
    MASSACHUSETTS DEPARTMENT OF REVENUE,
    Appellee.
    No. 14-1350
    IN RE: TIMOTHY P. PERKINS,
    Debtor
    TIMOTHY P. PERKINS,
    Appellant,
    v.
    MASSACHUSETTS DEPARTMENT OF REVENUE,
    Appellee.
    APPEALS FROM THE UNITED STATES DISTRICT COURT
    FOR THE DISTRICT OF MASSACHUSETTS
    [Hon. William G. Young, U.S. District Judge]
    No. 14-9002
    IN RE: ANTHONY M. GONZALEZ,
    Debtor
    ANTHONY M. GONZALEZ,
    Appellee,
    v.
    MASSACHUSETTS DEPARTMENT OF REVENUE,
    Appellant.
    No. 14-9003
    IN RE: JOHN T. BROWN,
    Debtor
    JOHN T. BROWN,
    Appellee,
    v.
    MASSACHUSETTS DEPARTMENT OF REVENUE,
    Appellant.
    APPEALS FROM THE BANKRUPTCY APPELLATE PANEL
    FOR THE FIRST CIRCUIT
    Before
    Torruella, Thompson, and Kayatta,
    Circuit Judges.
    Celine E. Jackson, Counsel to the Commissioner, Massachusetts
    Department of Revenue, with whom Jeffrey S. Ogilvie, Counsel to the
    Commissioner,   Amy   A.  Pittner,   Commissioner,    Massachusetts
    Department of Revenue, Martha A. Coakley, Massachusetts Attorney
    General, Daniel J. Hammond, Assistant Attorney General, Kevin W.
    Brown, Special Assistant Attorney General, were on brief, for
    Massachusetts Department of Revenue.
    Andrew L. Barrett for appellant Brian S. Fahey.
    Carl D. Aframe, with whom Aframe & Barnhill, PA, was on brief,
    for appellant Timothy P. Perkins.
    Marques C. Lipton, with whom Law Office of Nicholas F. Ortiz,
    P.C., was on brief, for appellees Anthony M. Gonzalez and John T.
    Brown.
    Tara Twomey, National Consumer Bankruptcy Rights Center,
    Joanne Mulder Nagjee, Joel Peter-Fransen, Shane Mulrooney, and
    Kirkland & Ellis LLP, on brief for National Association of Consumer
    Bankruptcy Attorneys, amicus curiae in support of appellants Brian
    S. Fahey and Timothy P. Perkins.
    February 18, 2015
    KAYATTA, Circuit Judge.            The four bankruptcy appeals
    before us pose a single question of statutory interpretation:
    whether a Massachusetts state income tax return filed after the
    date by which Massachusetts requires such returns to be filed
    constitutes a "return" under 11 U.S.C. § 523(a) such that unpaid
    taxes due under the return can be discharged in bankruptcy.                    For
    the reasons set forth below, we conclude that it does not.
    I. Background
    The facts in each of the four cases now on appeal are
    undisputed. John Brown, Brian Fahey, Anthony Gonzalez, and Timothy
    Perkins     (the    "debtors")     all    failed    to    timely       file   their
    Massachusetts income tax returns for multiple years in a row. This
    failure would not be a problem for them in these bankruptcy
    proceedings, but for the fact that they also failed to pay (either
    timely or otherwise) their taxes to the Massachusetts Department of
    Revenue.     Eventually, each debtor filed his late tax returns, but
    still failed to pay all taxes, interest, and penalties that were
    due.       More   than   two   years   later,    they    filed   for    Chapter   7
    bankruptcy. The debtors seek a ruling that their obligation to pay
    the taxes they failed to pay is dischargeable.1                  The Department
    argues for the opposite result; it contends unpaid taxes for which
    no return was timely filed by the Commonwealth's statutory deadline
    1
    Although the debtors did not each make identical arguments
    in their briefs or at oral argument, we attribute their contentions
    to "the debtors" collectively.
    -2-
    fit    within    an   exception   to    discharge   under   11   U.S.C.
    § 523(a)(1)(B)(i).
    The procedural postures of these four cases are described
    in detail in the Bankruptcy Appellate Panel ("BAP") and district
    court opinions that gave rise to these appeals.       Perkins v. Mass.
    Dep't of Revenue, 
    507 B.R. 45
    , 46-47 (D. Mass. 2014); In re
    Gonzalez, 
    506 B.R. 317
    , 318-23 (B.A.P. 1st Cir. 2014); In re Brown,
    B.A.P. No. MW 13-027, 
    2014 WL 1815393
    , at *1-5 (B.A.P. 1st Cir.
    Apr. 3, 2014).     In brief, the bankruptcy courts below split three
    to one in favor of the debtors, the BAP sided with the debtors in
    the two cases appealed to the BAP, and the district court granted
    summary judgment to the Department in the two cases appealed to the
    district court.
    II. Discussion
    A. Standard of Review
    Since no material facts are disputed and the issue before
    us turns entirely upon an interpretation of law, our review is
    plenary.   Pasquina v. Cunningham (In re Cunningham), 
    513 F.3d 318
    ,
    323 (1st Cir. 2008); Brandt v. Repco Printers & Lithographics, Inc.
    (In re Healthco Int'l, Inc.), 
    132 F.3d 104
    , 107 (1st Cir. 1997).
    B.    Legal Background
    Section 727 of the Bankruptcy Code instructs the court to
    grant a debtor a discharge from his debts in a Chapter 7 bankruptcy
    proceeding.     See 11 U.S.C. § 727.    This rule is subject to several
    -3-
    exceptions.     In particular, 11 U.S.C. § 523(a)(1) controls whether
    unpaid taxes are dischargeable in bankruptcy.          It provides, in
    relevant part:
    (a) A discharge under section 727 . . . of this
    title does not discharge an individual debtor from any
    debt--
    (1) for a tax or a customs duty--
    . . .
    (B) with respect to which a return, or
    equivalent report or notice, if required--
    (i) was not filed or given; or
    (ii) was filed or given after the date on
    which such return, report, or notice was
    last due, under applicable law or under any
    extension, and after two years before the
    date of the filing of the petition[.]
    11 U.S.C. § 523(a)(1)(B)(i)-(ii).         In other words, a tax is not
    dischargeable if the debtor failed to file a return, or if--perhaps
    anticipating bankruptcy--he filed the return late and within two
    years of his bankruptcy petition.
    Looking solely at the foregoing language, and using a
    common notion of what a "return" is, one could easily conclude that
    any return filed after the due date but more than two years before
    a bankruptcy filing would place the tax due under that return
    outside the section 523(a)(1) exception, and thus within the broad
    category   of    dischargeable   debts.       Prior   to   2005,   courts
    nevertheless attempted to fashion a definition of "return" that
    prevented debtors from relying on "bad faith" returns, or returns
    filed only after the taxing authority actually issued an assessment
    for taxes due in the absence of a tax return.              See generally
    -4-
    Moroney v. United States (In re Moroney), 
    352 F.3d 902
    , 905-06 (4th
    Cir. 2003) (providing examples of courts that determined late tax
    returns "filed after an involuntary assessment do not serve the
    purposes of the tax system, and thus rarely, if ever, qualify as
    honest and reasonable attempts to comply with the tax laws").
    In 2005, Congress decided to define "return" on its own
    when       it   passed   the   Bankruptcy    Abuse   Prevention   and    Consumer
    Protection         Act    ("BAPCPA"),       making   numerous     revisions    to
    section 523.        Pub. L. No. 109-8, 119 Stat. 23 (2005).             Among the
    BAPCPA's changes was the insertion of a "hanging paragraph,"
    denoted as section 523(a)(*), at the end of section 523(a).                    It
    provides:
    For purposes of this subsection, the term
    "return" means a return that satisfies the
    requirements of applicable nonbankruptcy law
    (including applicable filing requirements).
    Such term includes a return prepared pursuant
    to section 6020(a) of the Internal Revenue
    Code of 1986, or similar State or local law,
    or a written stipulation to a judgment or a
    final order entered by a nonbankruptcy
    tribunal, but does not include a return made
    pursuant to section 6020(b) of the Internal
    Revenue Code of 1986, or a similar State or
    local law.
    11 U.S.C. § 523(a)(*).2
    2
    Section 6020(a) returns are allowed only at the I.R.S.'s
    request and require the taxpayer's cooperation, while returns filed
    under section 6020(b) do not involve assistance by the taxpayer and
    may involve willful fraud. Compare 26 U.S.C. § 6020(a) with 26
    U.S.C. § 6020(b).
    -5-
    So the question now presented is a question of statutory
    interpretation:      Is a Massachusetts tax return filed after the due
    date for such returns a "return" as defined in section 523(a)(*) so
    that the tax due under that return remains dischargeable?3
    C. Analysis
    Read    together,      the   hanging   paragraph's        definitional
    language   and     the    "applicable"     Massachusetts       law    control   our
    decision. Under the hanging paragraph, for a document, whatever it
    may   be   called,       to   be   a   "return,"   it   must    "satisf[y]      the
    requirements of applicable nonbankruptcy law (including applicable
    filing requirements)." So the question is whether timely filing is
    a "filing requirement" under Massachusetts law.                      The answer is
    plainly yes.
    As the Massachusetts Supreme Judicial Court has held for
    state tax law purposes, "[t]he general rule of construction is that
    where the language of the statute is plain, it must be interpreted
    in accordance with the usual and natural meaning of the words."
    Comm'r of Revenue v. AMIWoodbroke, Inc., 
    634 N.E.2d 114
    , 115 (Mass.
    1994) (citing O'Sullivan v. Sec'y of Human Servs., 
    521 N.E.2d 997
    ,
    1000 (Mass. 1998)).           Mass. Gen. Laws ch. 62C, § 6(c) ("section
    3
    At oral argument, the attorney for Gonzalez and Brown raised
    the point that even if a late filed return is not a return, it may
    qualify as an "equivalent report or notice" under section
    523(a)(1)(B). Since this argument was not preserved in the record
    by any of the four debtors or briefed on appeal to this Court, we
    do not consider it here. See United States v. Zannino, 
    895 F.2d 1
    ,
    17 (1st Cir. 1990).
    -6-
    6(c)") states that "[e]xcept as otherwise provided, [income tax
    returns] shall be made on or before the fifteenth day of the fourth
    month following the close of each taxable year."      None of the
    exceptions that "otherwise provide[]" are applicable here.4   This
    command that returns "shall" be made by the due date certainly
    seems like a "filing requirement."     See Black's Law Dictionary
    (10th ed. 2014) (defining "shall" as "a duty; more broadly, is
    required to[;] the mandatory sense that drafters typically intend
    and that courts typically uphold").    And another section of the
    Massachusetts tax code makes plain that it is so viewed. See Mass.
    Gen. Laws 62C, § 32(a) ("section 32(a)") ("Taxes shall be due and
    payable at the time when the tax return is required to be filed.").
    Accordingly, under this straightforward reading of Massachusetts
    law, a return filed after the due date is a return not filed as
    required, i.e., a return that does not satisfy "applicable filing
    requirements."
    The two other circuits to have decided this issue, albeit
    construing other jurisdictions' "applicable" filing deadlines,
    4
    The Department points us to two statutory provisions that
    give meaning to the phrase "[e]xcept as otherwise provided." Mass.
    Gen. Laws ch. 30, § 24 (as amended 2013) authorizes acts that must
    be performed on a Saturday, Sunday, or legal holiday to be
    performed on the next business day. And Mass. Gen. Laws ch. 62C,
    § 19 (as amended 1985) allows the tax commissioner to "grant a
    reasonable extension of time for filing any return, provided that
    the taxpayer . . . files a tentative return . . . and pays
    therewith the amount of tax reasonably estimated to be due." The
    debtors do not argue that these provisions, or any other law or
    regulation, "otherwise provided" a due date for their filings.
    -7-
    reached the same conclusion.          The Tenth Circuit recently found
    returns filed late under the Internal Revenue Code ("I.R.C.") not
    to be returns within the meaning of the hanging paragraph.                  Mallo
    v. Internal Revenue Service (In re Mallo), Nos. 13-1464, 13-1488,
    
    2014 WL 7360130
    , at *6 (10th Cir. Dec. 29, 2014) (explaining, in
    reference to the I.R.C.'s deadline for income tax returns, that
    "the phrase 'shall be filed on or before' a particular date is a
    classic example of something that must be done with respect to
    filing a tax return and therefore, is an 'applicable filing
    requirement'").       Similarly, the Fifth Circuit determined that a
    debtor's failure to comply with a Mississippi law stating that
    returns "shall be filed on or before April 15th" meant that the
    returns did not satisfy applicable filing requirements under the
    hanging paragraph's definition.          McCoy v. Miss. State Tax Comm'n
    (In re McCoy), 
    666 F.3d 924
    , 928, 932 (5th Cir. 2012).                     And at
    least one other circuit court judge, in dictum, predicted such a
    result.    In    re   Payne,   
    431 F.3d 1055
    ,   1060   (7th    Cir.    2005)
    (Easterbrook, J., dissenting) ("After the 2005 legislation, an
    untimely return can not lead to a discharge--recall that the new
    language   refers     to   'applicable      nonbankruptcy    law     (including
    applicable filing requirements).'").
    The    debtors      nevertheless     argue   that       the   hanging
    paragraph's language is not quite so clear as to dictate our
    holding.   Perhaps the term "applicable filing requirement" may
    -8-
    acquire   vagueness   at   the    outer    boundaries   of   its   possible
    application.   See Antonin Scalia & Bryan A. Garner, Reading Law:
    The Interpretation of Legal Texts 31-32 (2012) (explaining that
    vagueness is present when a phrase's "unquestionable meaning has
    uncertain   application    to    various    factual   situations").     For
    example, is an instruction on an official form that the filer not
    staple the return together, or staple the check to the return, an
    "applicable filing requirement"?           However one might answer that
    question, we do not see how there is any room for reasonable
    argument that, as a matter of plain language, a Massachusetts law
    setting the date when a tax return "is required to be filed" is
    somehow not a "filing requirement."
    In nevertheless describing the statute as materially
    ambiguous and our reading of it contrived, the dissent relies on
    the premise that when a statute states that the universe of X
    "includes" Y, one normally presumes that Y is merely an example of
    what is in X, and that X includes more than Y.            Slip Op. at 30.
    The dissent errs, though, in claiming that our interpretation fails
    to satisfy this premise. The dissent makes this error by presuming
    that the universe defined by the statute is "late-filed returns
    that count as returns," Slip Op. at 30, and that section 6020(a)
    returns (and "similar" state or local law returns) are therefore
    simply examples of a wider array of permitted late filed returns.
    The statute neither says nor implies any such thing.          Rather, the
    -9-
    statute provides that a "return" includes a "return prepared
    pursuant to section 6020(a) . . . or similar State or local law."
    So one presumes only that a "return" includes more than these few
    types of returns.      And it plainly does: it includes all sorts of
    returns (such as Form 1040s) that satisfy their respectively
    applicable filing requirements.
    Similarly, the dissent errs in claiming that our reading
    of the statute "means that conversely, a section 6020(b) return
    would be the only type of return that is not a return."               Slip Op.
    at 31.   This is plainly not so--any type of return not filed in
    accord with applicable filing requirements is not a "return" under
    our reading of the statute.     The returns at issue in this case are
    a notable demonstration that section 6020(b) returns are not the
    only ones that are not returns under the statute.
    Widening   the   scope    slightly,    debtors    point    to    the
    language of section 523(a)(1)(B)(ii) ("the two-year provision"),
    which clearly implies that there can be a "return" that is filed
    within two years "after the date on which such return . . . was
    last due."5    So the hanging paragraph cannot be read as entirely
    excluding   the   possibility   that    a   late   return    can   also     be   a
    "return."     Grasping onto this point, the debtors contend (and the
    5
    The purpose of the two-year provision is apparently to
    prevent debtors from utilizing bankruptcy filings as a way of
    avoiding their overdue tax obligations. In re 
    Payne, 431 F.3d at 1059
    .
    -10-
    BAP   agreed)   that   our   interpretation   would   "vitiat[e]   in   its
    entirety" the two-year provision, rendering it "superfluous."           See
    TRW Inc. v. Andrews, 
    534 U.S. 19
    , 31 (2001) ("It is a cardinal
    principle of statutory construction that a statute ought, upon the
    whole, to be so construed that, if it can be prevented, no clause,
    sentence, or word shall be superfluous, void, or insignificant."
    (citation and internal quotation marks omitted)); Nat'l Org. for
    Marriage v. McKee, 
    649 F.3d 34
    , 66 (1st Cir. 2011) (quoting TRW
    Inc. for the same proposition).
    The defect in this argument is that the hanging paragraph
    itself carves out an exception from its general rule, deeming one
    type of late return to be a return.       It specifies that "a return
    prepared pursuant to section 6020(a) . . . or similar State or
    local law" qualifies as a "return," while those prepared pursuant
    to section 6020(b) do not. 11 U.S.C. § 523(a)(*). Section 6020(a)
    and (b) can both be invoked when a taxpayer "fails to make" a
    proper return, including situations where the taxpayer is late in
    filing a return to the I.R.S.         See 
    McCoy, 666 F.3d at 928-29
    .
    Therefore, a late tax return, if prepared in compliance with
    section 6020(a) and filed within two years of the bankruptcy
    petition, is still a return (and the tax due thus dischargeable),
    notwithstanding its failure to meet the otherwise "applicable
    filing requirement" of a mandatory deadline. While section 6020(a)
    may only apply in a small minority of cases, the fact that a late
    -11-
    filed section 6020(a) return can still qualify as a "return" for
    section 523(a) purposes means that the two-year provision still has
    a role to play if the hanging paragraph's plain meaning controls.
    The I.R.S.'s Chief Counsel has referred to the number of
    section 6020(a) returns as "minute" and in 2010 took the position
    that the safe harbor created by it was "illusory" because taxpayers
    have no right to demand a return under the provision. I.R.S. Chief
    Couns. Notice CC-2010-016 at 2-3 (Sept. 2, 2010).            We accept the
    claim that such returns are rare, and are allowed only at the
    I.R.S.'s behest.     It hardly follows, though, that the safe harbor
    expressly created for such returns is illusory.             In fact, this
    "narrow safe harbor," hypothetically described by the district
    court below in the Perkins case, was utilized by a debtor in a
    recent bankruptcy case where the bankruptcy court was bound by the
    reading of section 523(a)(*) that the Department urges here.              See
    In re Kemendo, 
    516 B.R. 434
    , 438 (Bankr. S.D. Tex. 2014).             In that
    case, the I.R.S. had prepared a tax return with information
    provided by the taxpayer, in accordance with section 6020(a).             
    Id. at 438.
         More than two years later, the taxpayer filed for
    bankruptcy.     
    Id. at 438-39.
          The bankruptcy court found that the
    taxpayer's delinquent tax debt had been properly discharged.              
    Id. In short,
    reading the hanging paragraph as generally excluding
    returns filed after the date when applicable law requires them to
    be   filed   does   not   conflict    with   the   implication   of   section
    -12-
    523(a)(1)(B)(ii) that there can be a late return, either notionally
    or in practice.
    The dissent takes a different tack, deeming it "absurd"
    to think that Congress would allow a discharge of taxes due under
    a section 6020(a) return prepared years after the due date, but not
    under a Massachusetts return that is one day late.                 We see no
    absurdity.     Section 6020(a) is a tool for the I.R.S., invoked
    solely at its discretion, when it decides obtaining help from the
    late filing taxpayer is to the I.R.S.'s advantage.              That Congress
    left the I.R.S. a carrot to offer a taxpayer in such infrequent
    cases does not mean that it was absurd for Congress not to extend
    this carrot categorically to large numbers of other late filers.
    But,   say   the   debtors,   our   reading   of    the   hanging
    paragraph still renders unnecessary its last clause, stating that
    the term "return" does not include "a return made pursuant to
    [section 6020(b)] or a similar State or local law."              The debtors
    are correct on this point.       Nevertheless, we do not see this as the
    type of redundancy that invokes any effective application of the
    doctrine that we try to read statutes so that no section is
    superfluous.    Here, in context, it simply appears that in creating
    an exception for section 6020(a), the drafters made clear (desiring
    a belt and suspenders) that they were not including its companion
    -13-
    section 6020(b).6    Whatever one thinks of this redundancy, it
    offers too little to parry the force of the observation that a
    requirement to file on time is a filing requirement.     See In re
    
    McCoy, 666 F.3d at 931
    .
    Moreover, were we to adopt the debtors' position that a
    law requiring compliance with a filing deadline is not a filing
    requirement, we would be left without any textual basis for
    distinguishing those filing requirements that count from those that
    do not. Instead--and debtors and the dissent are frank about this-
    -we would be back to tinkering with subjective and conflicting
    judge-made rules.   In that respect, we would render the principal
    thrust of the hanging paragraph to be largely of no effect.     Of
    course, the debtors say that this is what Congress wanted, simply
    seeking to "confirm" pre-existing case law.   But, as we discuss in
    greater detail later in this opinion, there was no such uniform
    rule in the case law to which the language in the hanging paragraph
    could be read as referring.   Cf. In re Mallo, 
    2014 WL 7360130
    , at
    *10 ("If Congress intended to define a return through application
    of the Beard test or some other substantial compliance doctrine,
    rather than by a taxpayer's compliance with the applicable filing
    6
    The distinction makes sense when we consider the basic
    difference between sections 6020(a) and (b) because the latter is
    prepared without the taxpayer's assistance and sometimes as a
    result of the taxpayer's willful fraud.
    -14-
    requirements contained in the Tax Code, Congress [would not have
    added] the phrase 'including applicable filing requirements.'").
    The debtors also seek support in the Massachusetts laws
    and regulations bearing on the meaning of "return." They point out
    that       in   Massachusetts,    a   pre-assessment     delinquent     return   is
    treated the same as any other return.7                 This is not exactly so,
    however, as Massachusetts imposes a penalty on any taxpayer who
    does not file his return by the date required.               See Mass. Gen. Laws
    ch. 62C, § 33 ("Late returns; penalty; abatement").8
    Relatedly, the debtors contend that the Commonwealth's
    own definition of "return" lacks a timeliness element.                  This, too,
    is not exactly so.        The Massachusetts Code of Regulations defines
    a return as "a taxpayer's signed declaration of the tax due, if
    any,       properly   completed       by   the    taxpayer   or   the   taxpayer's
    representative on a form prescribed by the Commissioner and duly
    filed with the Commissioner."               
    830 C.M.R. 62C
    .26.1(2) (emphasis
    supplied).        Webster's Third New International Dictionary gives as
    its first definition "in a due manner, time, or degree." Webster's
    Third New International Dictionary 700 (3d ed. 2002).                       Courts
    7
    The Department did not issue assessments against any of the
    debtors.
    8
    Nor need we address in this case whether a return is
    required to be filed by the due date if Massachusetts should deem
    the failure to be excused, and thus of no effect under Mass. Gen.
    Laws ch. 62C, § 33(f) (waiving any penalty on a showing of good
    cause).
    -15-
    consistently include a timeliness element when interpreting "duly"
    in other contexts.     See, e.g., McAdams v. United States, No. 07-
    164T, 
    2008 WL 654271
    , at *3 (Fed. Cl. Feb. 1, 2008) (in order for
    a claim to be duly filed under 26 U.S.C. § 7422, it must comply
    with the statutorily prescribed timeliness requirement in 26 U.S.C.
    § 6511(a)); O'Connell v. United States, No. 02-10399-RBC, 
    2004 WL 1006485
    , at *3 (D. Mass. Mar. 22, 2004) (same); Mobil Corp. v.
    United States, 
    52 Fed. Cl. 327
    , 331, 337 (Fed. Cl. 2002) (I.R.C.
    regulation prohibiting suit to recover wrongfully assessed taxes
    "until a claim for refund . . . has been duly filed" includes
    timeliness requirement).      In sum, the debtors' invocation of
    Massachusetts laws and regulations does not change the result.9
    Sensibly anticipating weak support in the statutory and
    regulatory language, the debtors rely with much emphasis on three
    other rules of statutory construction.
    First, they (and the amicus curiae) implore us to find
    instructive the notion that exceptions to discharge should be
    narrowly construed in the debtor's favor, Gleason v. Thaw, 
    236 U.S. 558
    , 562 (1915); Rutanen v. Baylis (In re Baylis), 
    313 F.3d 9
    , 17
    (1st Cir. 2002), and that the Bankruptcy Code should be read in
    light of its purpose to provide a fresh start to the "honest but
    unfortunate debtor."     Local Loan Co. v. Hunt, 
    292 U.S. 234
    , 244
    9
    We express no opinion on whether other jurisdictions' laws
    and regulations bearing on a tax return's timeliness qualify as
    "applicable filing requirements" under section 523(a)(*).
    -16-
    (1934) ("One of the primary purposes of the Bankruptcy Act is to
    relieve    the     honest     debtor       from     the     weight       of     oppressive
    indebtedness,      and   permit      him     to    start    afresh       free    from     the
    obligations       and    responsibilities            consequent          upon     business
    misfortunes." (internal quotation marks omitted)).
    Second, the debtors attempt to frame our interpretation--
    particularly with respect to the limitations it imposes on the two-
    year   provision's       applicability--as          representing         a     significant
    change to the pre-2005 Bankruptcy Code.                       The debtors and the
    bankruptcy court below for the Brown and Gonzalez cases quote the
    Supreme Court in urging us to be "reluctant to accept arguments
    that   would     interpret    the    Code,        however    vague       the    particular
    language under consideration might be, to effect a major change in
    pre-Code   practice      that   is     not    the    subject        of   at     least   some
    discussion in the legislative history." Dewsnup v. Timm, 
    502 U.S. 410
    , 419 (1992).
    Third, the debtors and amicus curiae call the result we
    reach here--that all late filed returns in Massachusetts are not
    subject    to    discharge      in    bankruptcy--"unfathomable"                  and     its
    consequences "draconian" and "absurd."
    Our response to the debtors' reliance on these rules of
    statutory construction is fourfold.
    First,       and   most   importantly,           where    the       question    is
    whether a Massachusetts law setting a date by which a tax return
    -17-
    "is   required   to   be   filed"   is   a   "filing   requirement"   under
    Massachusetts law, we find little need--or justification--for
    turning to secondary principles of statutory construction.             Cf.
    United States v. Ron Pair Enters., Inc., 
    489 U.S. 235
    , 241 (1989)
    ("The language before us expresses Congress' intent . . . with
    sufficient precision so that reference to legislative history and
    to pre-Code practice is hardly necessary.").
    Second, while the result we reach may be unfavorable
    towards delinquent taxpayers who are also bankrupt, there is hardly
    anything "unfathomable," "draconian," or "absurd" in the notion
    that Congress might disfavor debtors who both fail to pay their
    taxes and also fail to timely file the returns that would alert the
    taxing authority to the failure to pay.        Cf. 
    id. at 242
    ("The plain
    meaning of legislation should be conclusive, except in the 'rare
    cases [in which] the literal application of a statute will produce
    a result demonstrably at odds with the intention of its drafters.'"
    (quoting Griffin v. Oceanic Contractors, Inc., 
    485 U.S. 564
    , 571
    (1982))).
    Third, application of secondary principles of statutory
    construction hardly cuts just one way, or as forcefully as the
    debtors claim.    We note in particular that the hanging paragraph,
    adding to the statute the key language at issue, was part of an
    enactment whose motivating factors were: the "recent escalation of
    consumer bankruptcy filings"; the "significant losses asserted to
    -18-
    be associated with bankruptcy filings"; to close the loopholes that
    "allow    and--sometimes--even   encourage   opportunistic   personal
    filings and abuse"; and "the fact that some bankruptcy debtors are
    able to repay a significant portion of their debts."     H. Comm. on
    the Judiciary, Bankruptcy Abuse Prevention and Consumer Protection
    Act of 2005, H.R. Rep. No. 109-31(I), at 3-5 (2005), reprinted in
    2005 U.S.C.C.A.N. 88, 90-92.10    None of these enumerated purposes
    align with the debtors' fall-back stance of helping the "honest but
    unfortunate debtor" achieve a "fresh start."11    And as the Supreme
    Court has already stated, "[t]he statutory provisions regarding
    nondischargeability reflect a congressional decision to exclude
    from the general policy of discharge certain categories of debts--
    such as . . . taxes[.]      Congress evidently concluded that the
    creditors' interest in recovering full payment of debts . . .
    outweighed the debtors' interest in a complete fresh start."
    Grogan v. Garner, 
    498 U.S. 279
    , 287 (1991).
    10
    There were no published committee reports explaining the
    hanging paragraph's purpose, and it remains true that even when a
    statute effectuates a change to prior law, "where the language is
    unambiguous, silence in the legislative history cannot be
    controlling." 
    Dewsnup, 502 U.S. at 419-20
    .
    11
    The debtor unfriendly thrust of the BAPCPA was also manifest
    in its rewriting of section 523(a)(1)(B) to make it applicable "not
    only to the failure to file a required return, but also to the
    failure to file or give an 'equivalent' required 'report or
    notice'" corresponding to the debt. See Maryland v. Ciotti (In re
    Ciotti), 
    638 F.3d 276
    , 279-80 (4th Cir. 2011).
    -19-
    Finally, we acknowledge that straightforward application
    of Congress's language changes presumed practice in some bankruptcy
    courts (including those that ruled for three of the debtors below).
    That being said, the judge-made law surrounding the meaning of a
    "return" in section 523(a) was far from settled.                     Prior to the
    BAPCPA, and in the absence of any limiting definition of the term
    "return," courts used a four-part test first articulated by the
    United States Tax Court in Beard v. Comm'r, 
    82 T.C. 766
    , 777-78
    (1984), aff'd, 
    793 F.2d 139
    (6th Cir. 1986), in order to determine
    whether a document purporting to be a return was a return for
    purposes   of     section     523(a).        Courts    considered      a    return's
    timeliness     under    the   Beard     test's     fourth   prong:    whether       the
    submitted document "represent[ed] an honest and reasonable attempt
    to   satisfy     the   requirements     of   tax    law."     United       States    v.
    Hindenlang (In re Hindenlang), 
    164 F.3d 1029
    , 1033-34 (6th Cir.
    1999) (emphasis supplied); see also Colsen v. United States (In re
    Colsen), 
    446 F.3d 836
    , 839 (8th Cir. 2006); In re 
    Payne, 431 F.3d at 1057
    ; In re 
    Moroney, 352 F.3d at 905
    ; United States v. Hatton
    (In re Hatton), 
    220 F.3d 1057
    , 1060-61 (9th Cir. 2000).                        These
    cases dealt only with federal tax returns, and even within that
    limited context, failed to reach a consensus on the issue.                          The
    Fourth, Sixth, Seventh, and Ninth Circuits all determined that
    debtors    who    submitted    their     tax     returns    late     for    multiple
    consecutive years and then filed for bankruptcy had not satisfied
    -20-
    the test's fourth prong, but the bases for that conclusion varied.
    See In re 
    Payne, 431 F.3d at 1057
    -59 (expressing concern that a
    chronically delinquent taxpayer was making belated filings to "set
    the stage" for a discharge in bankruptcy); In re 
    Moroney, 352 F.3d at 905
    -06 (same); In re 
    Hatton, 220 F.3d at 1061
    (debtor "made
    every attempt to avoid paying his taxes until the IRS left him with
    no other choice"); In re 
    Hindenlang, 164 F.3d at 1034
    (post-
    assessment returns lack utility for the I.R.S.).              But see In re
    
    Colsen, 446 F.3d at 839-41
    (document's contents, not timeliness,
    determined what constitutes a "return" for discharge purposes).
    Against   this   background,    it   is   more   plausible   that
    Congress intended to settle the dispute over late filed tax returns
    against the debtor (who both fails to pay taxes and fails to file
    a return as required by law) than it is that Congress sought to
    preserve some version of the unsettled four-pronged Beard test by
    using language that has no reference to that case law and that
    certainly   suggests   no    four-pronged    definition.       Particularly
    noteworthy is the fact that Congress's chosen test called for
    satisfying the filing requirements of applicable law, not merely
    making an "honest attempt" to do so.12
    12
    This is not to reject the possibility that pre-amendment
    case law, such as Beard, might remain viable in deciding whether a
    document not purporting to be a return is an "equivalent report or
    notice" under section 523(a)(1)(B). See In re 
    Ciotti, 638 F.3d at 280-81
    .
    -21-
    III. Conclusion
    For the foregoing reasons, we affirm the district court's
    judgment in favor of the Department in the cases of Fahey and
    Perkins, and we reverse the BAP's grant of judgment for Brown and
    Gonzalez.    Summary judgment shall be entered in favor of the
    Department for the tax years at issue because the debtors' tax
    liabilities were not discharged in bankruptcy as a matter of law.
    So ordered.
    - Dissenting Opinion Follows -
    -22-
    THOMPSON,    Circuit       Judge,    dissenting.        Our   nation's
    bankruptcy system was built on the principle that sometimes, honest
    people fall on hard times.       While the bankruptcy code has naturally
    gone   through   revisions   and   updates       since     its   inception,    that
    foundational philosophy has always laid at its root.
    In my view, the majority is unfairly dismissive of the
    debtors' logical interpretation of the statutory provisions at
    issue.     It simultaneously takes too academic and literal of an
    approach    to   its   reading    of    one     of   the   code's   definitional
    provisions, leading to a result that defies common sense, while also
    conveniently ignoring the plain meaning of other words in the very
    same paragraph, in order to reach a certain outcome. It ignores the
    mandates of statutory construction we are obligated to follow, years
    of lines of caselaw upon which debtors had been relying, and the
    clearly    stated   policy   reasons      for    Congress's      imposing     these
    statutory provisions in the first place.
    Needless to say, I dissent.
    The Canons of Construction
    In our de novo review, the rules we follow to interpret
    a statute -- including bankruptcy statutes -- are well established.
    First, we "look [] to the specific language at issue."                        In re
    Rudler, 
    576 F.3d 37
    , 44 (1st Cir. 2009). "If the statute's language
    is plain, the sole function of the courts . . . is to enforce it
    according to its terms."         
    Id. at 44-45
    (citations and quotations
    -23-
    omitted).         In so doing, however, we only apply plain meaning if the
    statutory language is not ambiguous and would not "lead to absurd
    results."         
    Id. (citations and
    quotations omitted).        Thus, in this
    case we must initially decide whether we can enforce 11 U.S.C. §
    523(a)(1)(B)(ii)13 -- the specific statutory provision at issue --
    "according         to   its   terms,"   based   on   an   assessment   that   the
    "disposition required by the text is not absurd," 
    id. at 44
    (citations and quotations omitted), and that the statute cannot be
    "read in more than one way," In re Thinking Machines Corp., 
    67 F.3d 1021
    , 1025 (1st Cir. 1995) (quoting United States v. Gibbens, 
    25 F.3d 28
    , 34 (1st Cir. 1994)) ("A statute is ambiguous if it can be
    read in more than one way.").
    The majority concludes that the hanging paragraph, which
    Congress added to the bankruptcy statute in order to define what a
    "tax return" is for purposes of Subsection (ii),14 unambiguously
    dictates that "a return filed after the due date is a return not
    filed        as   required,"   and   thus,   that    debtors   who   file   their
    Massachusetts taxes late can never benefit from Subsection (ii).
    As I will explain, I disagree that the hanging paragraph -- when
    read in concert with Subsection (ii) -- unequivocally demands that
    conclusion.         To the contrary, the majority's interpretation of the
    13
    From now on, I'll refer to 11 U.S.C. § 523(a)(1)(B)(ii) as
    "Subsection (ii)."
    14
    The hanging paragraph's definition of "return" applies to
    the entire 11 U.S.C. § 523(a). See 11 U.S.C. § 523(a)(*).
    -24-
    hanging   paragraph   leads   to   an   absurd   result   that   cannot   be
    reconciled simply with a strictly literal reading of the statute.
    Plain Meaning
    The statute at issue provides that a debtor may not
    discharge a tax debt if "a return . . . if required -- (i) was not
    filed or given; or (ii) was filed or given after the date on which
    such return . . .     was last due, under applicable law or under any
    extension, and after two years before the date of the filing of the
    [bankruptcy] petition[.]"15    11 U.S.C. § 523(a)(1)(B)(i)-(ii).
    In 2005, Congress enacted the Bankruptcy Abuse Prevention
    and Consumer Protection Act, making numerous and significant changes
    to the bankruptcy code.    As part of those 2005 amendments, Congress
    added the "hanging paragraph" to the end of 11 U.S.C. § 523(a),
    clarifying that for purposes of that subsection, a "'return' means
    a return that satisfies the requirements of applicable nonbankruptcy
    law (including applicable filing requirements)."           Significant to
    this appeal, Congress did not change Subsection (ii) during the 2005
    amendments.
    The majority hones in on the hanging paragraph's added
    clarification that returns must comply with a state's "applicable
    15
    The majority makes much ado about the fact that the debtors
    in this case never paid their back taxes. It seems obvious to me
    that when Congress drafted the bankruptcy statute, it anticipated
    that someone seeking to discharge a debt in bankruptcy never
    actually paid the money. Otherwise, he wouldn't have any debt to
    discharge.
    -25-
    filing requirements" to be dischargeable.         The majority concludes
    that the text of the hanging paragraph unambiguously states that if
    a return does not comply with all the state law tax return filing
    requirements (including the filing deadline),16 then the taxes
    cannot be discharged.
    The majority's logic suffers from several flaws, which I
    address in turn.
    First, it is not obvious to me that under Massachusetts
    tax law, filing a return late necessarily means that a debtor did
    not comply with "applicable filing requirements," such that his
    return    would   not   "satisf[y]    the   requirements   of   applicable
    nonbankruptcy law."      As the majority concedes, a tardy return will
    still be accepted by the state, and the debtor's tax liability will
    still be assessed.      See Mass. Gen. L. c. 62C, § 26(a) ("Taxes shall
    be deemed to be assessed at the amount shown as the tax due upon any
    return filed under the provisions of this chapter and on any
    amendment, correction or supplement thereof, or at the amount
    properly due, whichever is less, and at the time when the return is
    16
    Confusingly, the majority admits that even under its
    interpretation of the statute, "the term 'applicable filing
    requirement' may acquire vagueness at the outer boundaries of its
    possible application." As an example, the majority suggests that
    it is unclear whether a failure to properly staple documents, even
    though technically an "applicable filing requirement," would render
    the taxes deriving therefrom non-dischargeable. The majority goes
    on, however, to answer its own hypothetical by later concluding
    that "any type of return not filed in accord with applicable filing
    requirements in not a 'return' under our reading of the statute."
    -26-
    filed or required to be filed, whichever occurs later.").                    While
    late-filed returns are subject to a one-percent penalty, Mass. Gen.
    L. c. 62C, § 33(a),17 even the fine is waivable on a showing of good
    faith:
    If it is shown that any failure to file a
    return or to pay a tax in a timely manner is
    due to reasonable cause and not due to willful
    neglect, any penalty or addition to tax under
    this   section   may   be    waived   by   the
    commissioner, or if such penalty or addition
    to tax has been assessed, it may be abated by
    the commissioner, in whole or in part.
    Mass. Gen. L. c. 62C, § 33(f).            I do not see how we can conclude
    that   a    late-filed   return   never      satisfies       the   requirements   of
    Massachusetts tax law if the Commonwealth not only accepts the
    return,     but   is   even   willing   to     waive   the    already   relatively
    conservative penalty for filing it late.
    More importantly though, even if we assume, as the
    majority does, that timely filing is generally a necessary component
    of a "return" under Massachusetts tax law, we still cannot draw the
    majority's ultimate conclusion that late filers can never discharge
    17
    Mass. Gen. L. c. 62C, § 33(a) provides:
    If any return is not filed with the
    commissioner on or before its due date or
    within any extension of time granted by him,
    there shall be added to and become a part of
    the tax, as an additional tax, a penalty of
    one per cent of the amount required to be
    shown as the tax on such return for each month
    or fraction thereof during which such failure
    continues, not exceeding, in the aggregate,
    twenty-five per cent of said amount.
    -27-
    their Massachusetts tax debts under 11 U.S.C. § 523(a).         Subsection
    (ii) -- which Congress chose not to alter during its 2005 amendments
    -- continues to provide a discharge exception for people who filed
    their taxes late, so long as those debtors did not file within the
    two years just prior to filing for bankruptcy. See In re Weinstein,
    
    272 F.3d 39
    , 43 (1st Cir. 2001) (noting that when two statutory
    provisions are "meant to work in concert," to discern the plain
    meaning of the provision at issue, we must analyze both, as one
    statutory provision cannot be read in isolation).         As the debtors
    appropriately urge, there would be no point in leaving in Subsection
    (ii) -- the specific exception that deals with late filers -- if
    Congress meant for the hanging paragraph to penalize everyone who
    misses filing deadlines.    As the majority concedes, we should not,
    when we can avoid it, construe statutes in a way that allows a
    "clause,   sentence,   or   word"    to    be   "superfluous,   void,   or
    insignificant."   TRW Inc. v. Andrews, 
    534 U.S. 19
    , 31 (2001); see
    also Kawaauhau v. Geiger, 
    523 U.S. 57
    , 62 (1998) ("[W]e are hesitant
    to adopt an interpretation of a congressional enactment which
    renders superfluous another portion of that same law.") (citation
    and quotations omitted).
    So how do we reconcile this discrepancy (i.e., ambiguity)
    that arises within the statute?        The correct answer is to assess
    what the legislature likely meant when it wrote the statute -- a
    step the majority incorrectly assumes it can skip, based on its
    -28-
    half-reading   of   the   statutory   provisions   it   was   required   to
    consider.    See In re 
    Weinstein, 272 F.3d at 44
    (noting that a
    "conflict between two provisions of [a] statute -- a conflict with
    which neither provision deals expressly . . . provides a reason to
    move beyond the text and to examine a statute's legislative history
    and apparent purpose"). Instead of taking on its required task, the
    majority, in an attempt to resolve this matter solely on the plain
    text, glosses over the ambiguity by concluding that Subsection (ii)
    is not a superfluous clause because one type of person would still
    benefit from it -- the people who filed a return pursuant to 26
    U.S.C. § 6020(a) (or a comparable state or local law).18
    As the majority notes, the hanging paragraph provides:
    ["Return"] includes a return prepared pursuant
    to section 6020(a) of the Internal Revenue
    Code of 1986, or similar State or local law,
    . . . but does not include a return made
    pursuant to section 6020(b) of the Internal
    Revenue Code of 1986, or a similar State or
    local law.
    18
    Section 6020(a) allows the IRS to prepare a federal return
    for someone who fails to do so on his own, but still consents to
    providing the IRS with the information it needs to prepare the
    return itself. It provides:
    If any person shall fail to make a return
    required by this title or by regulations
    prescribed thereunder, but shall consent to
    disclose all information necessary for the
    preparation thereof, then, and in that case,
    the Secretary may prepare such return, which,
    being signed by such person, may be received
    by the Secretary as the return of such person.
    26 U.S.C. § 6020(a).
    -29-
    11 U.S.C. § 523(a)(*).   So, the majority concludes, Subsection (ii)
    retains some usefulness because § 6020(a) returns (even if they are
    filed late), can still be discharged under Subsection (ii).
    The majority's logic on this point is off for a number of
    reasons, two of which relate to plain language interpretation.
    For one, the text of the hanging paragraph does not, as
    the majority concludes, dictate that § 6020(a) returns are the only
    type of late-filed returns that count as "returns."              The hanging
    paragraph   provides   that   a   return   "includes    a    return   prepared
    pursuant to section 6020(a)."      (Emphasis added).        The majority asks
    us to assume that Congress, in its use of the word "includes,"
    intended for the exception to apply only to § 6020(a)-type returns.
    I am perplexed as to how the majority reaches this
    contrived extrapolation.      Congress's use of the word "includes"
    connotes that § 6020(a) returns and their state or local law
    equivalents are mere examples of returns that would still comply
    with "applicable filing requirements," despite the fact that the
    taxpayer did not meet the filing deadline.19           If Congress intended
    the outcome espoused by the majority, it would have used different
    language (e.g., "is limited to") -- not the word "includes."20
    19
    While § 6020(a) does not specifically discuss filing
    deadlines, I think it fair to presume that if a person failed to
    file a return on his own, he missed the filing deadline.
    20
    In its attempt to refute my interpretation of the word
    "includes," the majority concludes that in addition to § 6020(a)
    returns, "all sorts of returns (such as Form 1040s) that satisfy
    -30-
    In a similar vein, the hanging paragraph also denotes
    that a "return" "does not include a return made pursuant to section
    6020(b) of the Internal Revenue Code . . . or a similar State or
    local law."21 Applying the majority's (incorrect) definition of the
    word "includes," then, means that conversely, a § 6020(b) return,
    (or its state or local law equivalent) would be the only type of
    return that is not a return.   But as the bankruptcy court below put
    it, "[i]f all late-filed returns except § 6020(a) returns are not
    returns[,] there is no need to state that § 6020(b) returns are not
    returns."   The majority cursorily writes off this curiosity as a
    mere "redundancy" in the statute, failing to substantively address
    their respectively applicable filing requirements" count as
    "returns."   This logic is circular.     Of course a return that
    satisfies "applicable filing requirements" satisfies "applicable
    filing requirements."    The majority's response still fails to
    address why we should read into the statutory language that late-
    filed returns, generally, are not considered "returns," even though
    Congress wrote into the statute an example of a specific type of
    late-filed return that qualifies.
    21
    Section 6020(b) permits the IRS to execute a return for
    someone who either failed to file, or filed a "false or fraudulent
    return," even if that person did not cooperate and/or did not sign
    the return the IRS prepared. It provides:
    If any person fails to make any return
    required by any internal revenue law or
    regulation made thereunder at the time
    prescribed therefor, or makes, willfully or
    otherwise, a false or fraudulent return, the
    Secretary shall make such return from his own
    knowledge and from such information as he can
    obtain through testimony or otherwise.
    26 U.S.C. § 6020(b)(1).
    -31-
    why the absurd conclusion we must draw from its reading of the
    statute does not require consideration of what Congress actually
    meant when it added the § 6020 language to the statute.
    Second, allowing § 6020(a) returns, but not other late-
    filed returns, to be dischargeable leads to another preposterous
    result.   Section 6020(a) returns result from a taxpayer's failure
    to file a federal tax return.    Under the majority's formulation,
    then, the scofflaw who sits on his hands at tax time, doesn't bother
    to file a return, and then, after getting caught, cooperates with
    the authorities and lets the government file the substitute return
    for him, would be the only late filer who would be allowed to
    discharge his tax debt.   The person who files his return one day
    late -- which the state then accepts -- would not be permitted to
    discharge, regardless of the reason for the tardiness.
    The majority responds that § 6020(a) "is a tool for the
    IRS, invoked solely at its discretion, when it decides obtaining
    help from the late filing taxpayer is to the IRS's advantage."   And
    so, the majority contends, "[t]hat Congress left the IRS a carrot
    to offer a taxpayer in such infrequent cases does not mean that it
    was absurd for Congress not to extend this carrot categorically to
    large numbers of late filers."         But the Massachusetts taxing
    authority, like the IRS, also has the discretion to accept late-
    filed materials from a taxpayer (without imposing a penalty),
    presumably because it, too, would prefer not to start from scratch.
    -32-
    Further, the majority offers no authority to support its assumption
    that Congress was concerned about a rash of people running to the
    courthouse to discharge their tax debts.               A theme I harp on
    throughout this dissent, we cannot put words in Congress's mouth.
    Finally, if Congress did provide some indication that it was seeking
    to prevent "large numbers" of late filers from attempting to
    discharge, the relevant statistic to look at would be how many late
    filers -- of the § 6020(a) variety or otherwise -- would actually
    seek relief from Subsection (ii), were it available to them, as
    opposed to how many people, theoretically, file their taxes late.
    Given the absurdity of the majority's outcome, and the
    other textual ambiguities I described above, I disagree with my
    colleagues that we can avoid delving into legislative intent.               I
    tackle that analysis next.
    Legislative Intent
    In dicta, the majority rejects the debtors' arguments
    regarding the legislative intent behind Subsection (ii) and the
    hanging paragraph.      I disagree with this portion of the majority's
    analysis, as well as its ultimate disposition.
    The Caselaw
    In trying to discern legislative intent, we look to the
    historical    context   of   the    statute   (i.e.,   prior   caselaw),   the
    legislative history of the statutory provision, and the policy
    underlying the statute.       In re 
    Weinstein, 272 F.3d at 44
    -46.          So
    -33-
    first, we must "consider . . . the context of the statute in
    bankruptcy caselaw."      
    Id. This task
    requires a brief recap of the
    history   of   Subsection    (ii)    and    the   addition   of    the    hanging
    paragraph.
    Prior   to   2005,    the   bankruptcy   code   did    not    define
    "return" for purposes of Subsection (ii).             Many courts, left to
    their own devices to figure out what constituted a "return," ended
    up adopting what's been coined as the "Beard test," a four-part
    standard formulated by the Tax Court for determining whether a
    document filed with the IRS qualified as a federal tax return.
    Under the Beard inquiry, a document qualified as a tax return if:
    (1) it purported to be a return; (2) was signed under penalty of
    perjury; (3) contained information sufficient to determine tax
    liability; and (4) was an honest and reasonable attempt to satisfy
    the tax law requirements.           Beard v. Commissioner, 
    82 T.C. 766
    (1984), aff'd per curiam, 
    793 F.2d 139
    (6th Cir. 1986).                  See also
    In re Colsen, 
    446 F.3d 836
    , 839 (8th Cir. 2006); In re Payne, 
    431 F.3d 1055
    , 1057 (7th Cir. 2005); In re Moroney, 
    352 F.3d 902
    , 905
    (4th Cir. 2003); In re Hatton, 
    220 F.3d 1057
    , 1060-61 (9th Cir.
    2000); In re Hindenlang, 
    164 F.3d 1029
    , 1033-34 (6th Cir. 1999) (all
    adopting Beard test).22
    22
    We do not appear to have ever formally adopted Beard, but
    prior to 2005, courts in our province applied or considered it to
    try to figure out what constituted a "return" for purposes of 11
    U.S.C. § 523(a). See, e.g., In re Mulcahy, 
    260 B.R. 612
    , 615-16
    (Bankr. D. Mass. 2001); In re Pendergast, 
    510 B.R. 1
    , 9 (B.A.P. 1st
    -34-
    Many courts ended up grappling with the fourth prong.
    Some tried to figure out whether filing a return late counted as an
    "honest and reasonable attempt" to satisfy tax requirements.   See,
    e.g., In re 
    Payne, 431 F.3d at 1059
    ; In re 
    Hindenlang, 164 F.3d at 1034
    .   Those decisions often turned on whether a return made after
    the government had already assessed tax liability defeated the main
    purpose of the filing deadline, which one court described as
    "spar[ing] the tax authorities the burden of trying to reconstruct
    a taxpayer's income and income-tax liability without any help from
    him."   In re 
    Payne, 431 F.3d at 1057
    .   See also In re 
    Moroney, 352 F.3d at 906
    (holding that the belated acceptance of responsibility
    for tax liability does not constitute an honest and reasonable
    attempt to comply with tax laws, and that whether the eventual
    effort had an effect on tax liability was irrelevant); In re 
    Hatton, 220 F.3d at 1061
    (finding that belated cooperation with IRS to
    settle tax liabilities was not an honest and reasonable attempt to
    comply with tax law, and tax liability was therefore not excepted
    from discharge under § 523); In re 
    Hindenlang, 164 F.3d at 1034
    (applying the fourth prong of Beard, holding that a "Form 1040 is
    not a return if it no longer serves any tax purpose or has any
    effect under the Internal Revenue Code").      Other courts instead
    struggled with whether the "honest and reasonable" inquiry was
    Cir. 2014) (reiterating its previous holding that "§ 523(a)(*)
    replaces the Beard test").
    -35-
    limited to an examination of whether, as a factual matter, the tax
    forms themselves -- regardless of when they were eventually filed --
    were filled out in good faith and with accurate information.                 See,
    e.g., In re 
    Colsen, 446 F.3d at 840-41
    .
    Presumably aware of this confusion that was ensuing in
    the   courts,   in    2005,   Congress   added      the    hanging    paragraph,
    clarifying specifically that substitute returns -- even though they
    were not prepared at the hand of the taxpayer and were filed late --
    could qualify as dischargeable under 11 U.S.C. § 523(a), so long as
    the taxpayer cooperated with the government in preparing the return,
    and did not file a false or fraudulent one.               While Congress also
    injected the language requiring returns to meet "applicable filing
    requirements," despite the discord among the courts, it did not
    specifically address whether late-filed returns in particular should
    be considered "returns" under the revised statutory scheme.
    Since 2005, disagreement has continued to persist among
    the courts about how to apply the law, at least as it pertains to
    late-filed returns. Only two of our sister courts have answered the
    specific   question    before   us,    and   both   have    reached    the   same
    conclusion as the majority here.             See McCoy v. Miss. State Tax
    Comm'n (In re McCoy), 
    666 F.3d 924
    , 932 (5th Cir. 2012); In re
    Mallo, No. 13-1464, 
    2014 WL 7360130
    , at *12 (10th Cir. Dec. 29,
    2014).   But as we have said before, "[t]he numbers favoring a rule
    do not necessarily mean that the rule is the best one." In re Atlas
    -36-
    IT Exp. Corp., 
    761 F.3d 177
    , 182 (1st Cir. 2014).                Numerous lower
    courts -- including two of the courts involved in the instant appeal
    -- have applied either a different reasoning or have reached a
    different outcome from the one espoused by the majority. See, e.g.,
    In re Gonzalez, 
    506 B.R. 317
    , 318 (B.A.P. 1st Cir. 2014) (affirming
    bankruptcy     court's      holding    that     Massachusetts         taxes   were
    dischargeable, even though "corresponding tax returns were filed
    late"); In re Martin, 
    508 B.R. 717
    , 736 (Bankr. E.D. Cal. 2014)
    (holding     that   "requirements      of    applicable    nonbankruptcy       law
    (including applicable filing requirements) do not include a temporal
    restriction") (quotations omitted).             Some courts, including the
    lower court in Mallo, have continued to apply various versions of
    the Beard test. See, e.g., In re Mallo, 
    498 B.R. 268
    , 281 (D. Colo.
    2013); In re Rhodes, 
    498 B.R. 357
    , 360 (Bankr. N.D. Ga. 2013).
    As the Supreme Court has articulated, "[w]hen Congress
    amends the bankruptcy laws, it does not write on a clean slate."
    Dewsnup v. Timm, 
    502 U.S. 410
    , 419 (1992) (quotations omitted).
    Therefore, we should be "reluctant to accept arguments that would
    interpret the Code, however vague the particular language under
    consideration might be, to effect a major change in pre-Code
    practice that is not the subject of at least some discussion in the
    legislative history."       
    Id. Given the
    widespread disagreement among
    the   courts   prior   to    and    after    2005,   as   well   as    ubiquitous
    application of various versions of the Beard test's "honest and
    -37-
    reasonable attempt" requirement, I do not see how -- absent a clear
    congressional mandate -- we can (or should) spring upon debtors the
    majority's draconian rule-of-law. This very appeal, which involves
    four different debtors and the decisions of four different lower
    courts reaching two opposing outcomes, illustrates that the caselaw
    is far from settled, and that the courts were not generally applying
    a per se restriction like the one the majority has created today.
    Policy
    Given the lack of legislative history on the hanging
    paragraph, it is also appropriate to look to the public policy
    behind the bankruptcy code to try to determine Congress's intent.
    See In re 
    Weinstein, 272 F.3d at 46
    (noting that while we "must not,
    of course, impose [our] own views of proper bankruptcy policy in
    place of those of the legislature[,] . . . an understanding of the
    congressional    policies    underlying       a   statute,    including     the
    Bankruptcy Code, can help to reconcile otherwise indeterminate parts
    of the statutory text").
    The primary purpose of the bankruptcy code has always
    been to "relieve the honest debtor from the weight of oppressive
    indebtedness,    and   permit   him    to    start   afresh   free   from   the
    obligations     and    responsibilities       consequent      upon   business
    misfortunes."    Local Loan Co. v. Hunt, 
    292 U.S. 234
    , 244 (1934)
    (citation and quotations omitted); Marrama v. Citizens Bank of
    Mass., 
    549 U.S. 365
    , 367 (2007) ("The principal purpose of the
    -38-
    Bankruptcy Code is to grant a fresh start to the honest but
    unfortunate debtor.") (citations and quotation omitted).                   As the
    Supreme Court reiterated fairly recently (and several years after
    the 2005 amendments were passed), a "fresh start" is a "fundamental
    bankruptcy concept."      Schwab v. Reilly, 
    560 U.S. 770
    , 791 (2010)
    (citations    and    quotations    omitted).          Despite     the   majority's
    contentions, Congress made no indication that the 2005 amendments
    were intended to change those goals.              Rather, as President George
    W. Bush reiterated upon signing the bill, the purpose of our
    bankruptcy system is to "give those who cannot pay their debts a
    fresh start."       Presidential Statement on Signing the Bankruptcy
    Abuse Prevention and Consumer Protection Act, 2005 U.S.C.C.A.N. S7,
    
    2005 WL 3693183
    (Apr. 20, 2005) ("2005 Presidential Statement").
    As   I   mentioned     above,     the     Massachusetts     taxing       authority
    acknowledges that someone may miss the filing deadline for a
    "reasonable cause."       Yet under the majority's formulation, even
    people who have a good-faith reason for filing late -- and are then
    excused by the state taxing authority for doing so -- are mere
    "delinquent    taxpayers,"      shunned        from   receiving    a    bankruptcy
    discharge.    While the 2005 reforms certainly sought to avert abuses
    that had been occurring in the bankruptcy system, I find                       it
    presumptuous to conclude that well intentioned people who file their
    taxes one day late -- with no way to anticipate that bankruptcy
    would be coming down the pipeline a whole two years later -- are the
    -39-
    people trying to "commit fraud" or "game the system."               See 2005
    Presidential Statement.     I am further convinced that Congress's
    focus was likely on bad faith, as opposed to mere timing, because
    the hanging paragraph expressly allows discharge for § 6020(a)
    returns, but not § 6020(b) returns, despite the fact that both are,
    by their nature, filed late -- as the majority concedes, "the basic
    difference between sections 6020(a) and (b) [is that] the latter is
    prepared without the taxpayer's assistance and sometimes as a result
    of the taxpayer's willful fraud."        It seems to me that in light of
    the public policy behind the bankruptcy code and Congress's decision
    not to specifically create a per se rule barring late-filed returns
    from being dischargeable, we cannot just write one in.
    Given the state of the caselaw in 2005, the most sensible
    explanation   for   Congress's   addition    of   the   provision    was   to
    elucidate that regardless of who prepared a return -- or when -- if
    the document a debtor filed would no longer be considered a "return"
    because the state won't accept it as one, the debtor can't just turn
    around and file a tax form solely for the purpose of discharging
    those taxes during bankruptcy.     This interpretation of the law is
    further supported by Congress's choice, in 2005, to maintain the
    very safeguard that was already built into the statute to help
    prevent that kind of problem from arising: "the requirement of a
    two-year waiting period after filing a late return but before
    seeking discharge prevents a debtor who has ignored the filing
    -40-
    requirements of the Internal Revenue Code from waiting until the eve
    of bankruptcy, filing a delayed but standard tax return form, and
    seeking discharge the next day."           In re 
    Hindenlang, 164 F.3d at 1032
    .   Considering the purpose of the bankruptcy code, it is beyond
    me how -- or why -- the majority would assume, without textual or
    other justification, that "it is more plausible that Congress
    intended to settle the dispute over late filed tax returns against
    the debtor . . . ."
    In   my   view,   the    most     sensible   interpretation of
    Subsection (ii) and the hanging paragraph, when considered in
    concert, is that a return that does not comply with state filing
    requirements (and thus will not be accepted by the state as a return
    when it is filed) does not count as a "return," and so those taxes
    cannot be discharged.    In order to prevent people from filing late
    returns solely for the purpose of discharging their taxes in
    bankruptcy, the debtor may only discharge if he filed for bankruptcy
    two years after he filed his late return.         This reading aligns with
    the plain text (including Congress's choice to retain Subsection
    (ii) in its entirety), the historical context of the statute, and
    the public policy reasons for enacting the bankruptcy code.             The
    majority,   ignoring    blatant     textual    ambiguities   and   judicial
    precedent, instead opts to create a per se restriction that is
    contrary to the goal of our bankruptcy system to provide, as the
    -41-
    former President put it in 2005, "fairness and compassion" to "those
    who need it most."
    Ultimately, this continued confusion may be Congress's
    problem to fix.     In the meantime, debtors who legitimately resort
    to bankruptcy when they reach wit's end should not be punished for
    the lack of clarity that persists in the very laws enacted to help
    them -- or for the majority's implicitly articulated viewpoint that
    a financially strapped person who misses a deadline is trying to
    work a runaround.
    I respectfully dissent.
    -42-