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In re O'Rourke

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Argued: September 1, 2009

Before: CALABRESI, CABRANES, and HALL, Circuit Judges.

Debtors-appellants Thomas J. O’Rourke and Carol D. O’Rourke (“debtors”) appeal from a final judgment of the United States District Court for the Western District of New York (David G. Larimer, Judge) entered October 29, 2008, affirming the July 28, 2006 order of the Bankruptcy Court for the Western District of New York (John C. Ninfo, II, Chief Judge), which denied debtors’ motion*fn2 objecting to a claim filed by creditor-appellee United States Internal Revenue Service (“IRS” or “the government”). Debtors’ objection concerned a claim by the IRS in the amount of $110,330.16 resulting from the misclassification of income on debtors’ 1999 income tax return. According to debtors, they never received a “notice of deficiency” as required by 26 U.S.C. § 6212. On appeal, debtors primarily argue (1) that the Bankruptcy Court erred in determining that the IRS met its burden of proving that a notice of deficiency was mailed to them; (2) that the IRS is equitably estopped from relying on a certified mail log to prove such mailing because the IRS failed to produce that document to debtors for more than one year; and (3) that the certified mail log is inadmissible hearsay.

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