DISMISSAL FOR FAILURE TO FILE RETURNS MANDATORY UPON
MOTION
In re McCluney, Case No. 06-21175
June 2007, Judge Somers

The Court sustained a motion to dismiss by the IRS for failure to file pre petition tax returns as required under the new 1308 provision. This is not an “automatic dismissal” provision, but once the motion was filed, Judge Somers reasoned that he had no other choice.

FAILURE TO FILE RETURNS CAN BE FIXED WITH 105
In re Novello, Case No. 06-21029
August 2007, Judge Berger

IRS motion to dismiss for failure to file tax returns under 1308 was denied because the tax returns are now filed. Alternative relief sought was to reopen the 341 meeting, which the Court granted. Debtors Motion to Ratify under 1325(a)(9) was granted. Although dismissal is mandatory, the debtor can ask for extensions under 1308(b) which is included by reference in 1307(e). The 341 was reopened under 105.