[PUBLISH]

                                                                               \
              IN THE UNITED STATES COURT OF APPEALS
                                                                 FILED
                     FOR THE ELEVENTH CIRCUIT          U.S. COURT OF APPEALS
                     ___________________________         ELEVENTH CIRCUIT
                                                             MAR 23 2001
                             No. 00-13404                 THOMAS K. KAHN
                                                               CLERK
                     ___________________________

                   D.C. Docket No. 99-01447-CV-J-NE


IN RE: W. DAVID FRETZ,

                                                     Debtor.

UNITED STATES OF AMERICA,

                                                     Plaintiff-Appellant,

     versus


W. DAVID FRETZ,

                                                     Defendant-Appellee.

                    ____________________________

                Appeal from the United States District Court
                   for the Northern District of Alabama
                    ____________________________

                             (March 23, 2001)


Before EDMONDSON, CARNES and MARCUS, Circuit Judges.
CARNES, Circuit Judge:

       This appeal brings us the issue of whether a debtor’s intentional failure to

file tax returns and to pay taxes owed to the Internal Revenue Service (“IRS”) is

sufficient, even without any supporting affirmative conduct, to show that he

“willfully attempted in any manner to evade or defeat [a] tax,” within the meaning

of the non-discharge provision contained in 11 U.S.C. § 523(a)(1)(C), which is part

of the Bankruptcy Code. We hold that it is.

                                     I. BACKGROUND

                                          A. FACTS1

       From 1982 through 1992 William David Fretz failed to file federal income

tax returns or to pay his taxes. His problems with alcoholism during that time

period caused a severe downward spiral in his life. Notwithstanding that, Dr. Fretz

managed to maintain his employment as a physician; indeed, he worked shifts of

between twelve and twenty-four hours in hospital emergency rooms. Although he

never drank within eight hours before a shift, upon completing work he would

drink massive amounts of vodka until he passed out. Dr. Fretz eventually joined




       1
         The historical facts we set out in this section of the opinion are pretty much undisputed.
To the extent of any dispute, we have taken the version of the facts found by the bankruptcy
court (after an evidentiary hearing) because those findings are not clearly erroneous.

                                                 2
Alcoholics Anonymous, regained control of his life, and quit drinking. The exact

day he stopped drinking was April 15, 1993.2

       Before 1982, Dr. Fretz worked in a clinic and was paid as a salaried

employee, and his employer withheld income taxes from his paychecks as it was

required to do. From 1982 through 1992, however, Dr. Fretz worked at several

hospitals and clinics as an independent contractor. Because he was no longer a

salaried employee, no income taxes were withheld from his paychecks during that

period. The hospitals and clinics dutifully filed Forms 1099 reporting the

payments they made to Dr. Fretz, but he did not dutifully do anything about his

income tax responsibilities. He did not make his required estimated tax payments

in any of those years. Not once. And he did not file his annual returns or pay any

income tax. None. In 1986 Dr. Fretz did hire an accountant to prepare a tax return

for him, but he never filed it. On the other hand, Dr. Fretz never attempted to

move his assets around or otherwise conceal them (except to the extent that failing

to file returns conceals assets).


       2
         As the thoughtful reader might surmise, it was not merely coincidental that Dr. Fretz,
who had not filed tax returns or paid income taxes for a decade, stopped drinking on April 15.
Dr. Fretz testified that he knew he would eventually be called to account for failing to pay his
taxes, and that it weighed so heavily on him that he contemplated committing suicide. As he
explained about his decision to stop drinking on “tax day”: “I picked the date so that I would be
continuously reminded throughout my sobriety of the harm that I had done to myself during the
drinking years and the pain that it had caused so that I would never ever be tempted to go back
and drink again.”

                                                3
       The day of reckoning Dr. Fretz always knew would come finally arrived in

March of 1990 when he received a letter from the IRS stating that it had no record

of receiving returns from him for 1982 through 1988. One thing led to another and

eventually to criminal charges. In January of 1994, Dr. Fretz pleaded guilty to one

criminal charge, which was willful failure to file a tax return for the 1988 taxable

year, in violation of 26 U.S.C. § 7203. In November of 1994, he signed returns

prepared by the IRS for the 1982 through 1992 tax years. Included in the penalties

to which he consented were civil fraud penalties for 1982 through 1988, as

authorized in 26 U.S.C. § 6653(b), and civil penalties for fraudulent failure to file

for 1989 through 1992, as authorized in 26 U.S.C. § 6651(a) and (f).

      The amount of Dr. Fretz’ tax liability, including the calculation of the

interest and penalties, is not the issue in this case. The issue, instead, is whether

his liability for those taxes, interest, and penalties is a debt that is dischargeable in

bankruptcy.

                           B. PROCEDURAL HISTORY

      In June of 1997 Dr. Fretz filed a petition under Chapter 7 of the Bankruptcy

Code. The next month he filed a complaint seeking to discharge his federal income

tax liability for all tax years from 1982 through 1992, except for 1988. The

government filed not only an answer denying that Dr. Fretz was entitled to be


                                            4
discharged from liability for the tax years cited in his complaint, but it also filed a

counterclaim asserting its position that his liability for the 1988 taxable year also

was not dischargeable.3 The total amount of taxes, interest, and penalties for which

Dr. Fretz sought discharge exceeded $1 million at the time he filed his complaint.

The government argued that Dr. Fretz’ tax liabilities for 1982 through 1992 were

nondischargeable pursuant to 11 U.S.C. § 523(a)(1)(C) because he had willfully

attempted to evade or defeat those taxes within the meaning of that provision.4

       The bankruptcy court held that the taxes for the years in issue were

dischargeable. In its memorandum opinion the court ruled that the government had

the burden of proving by a preponderance of the evidence that Dr. Fretz’ failure to

pay taxes was committed with fraudulent intent. Because of Dr. Fretz’ alcoholism,

the court believed that he had followed no “scheme or design” to evade his taxes.

Ultimately, the court concluded “that Dr. Fretz’ conduct did not contain sufficient


       3
        In connection with his guilty plea for willfully failing to file a return for 1988, Dr. Fretz
had made payments pursuant to an order of restitution. He thought that those restitution
payments had been applied to his liability for the 1988 tax year, which is why he did not seek to
have that liability discharged in the bankruptcy proceeding. Apparently, however, the IRS had
applied those restitution payments to Dr. Fretz’ liability for earlier tax years, which is why it
counterclaimed about the 1988 tax year liability. Regardless of how it got into the pleadings, the
dischargeability of the 1988 tax year liability is part of this case. The issues involving it are the
same as those involving the other tax years.
       4
          The government’s counterclaim against Dr. Fretz also asserted that his federal income
tax liability for the 1993 tax year is nondischargeable. Dr. Fretz conceded this issue in the
bankruptcy court, apparently because he claimed a deduction that would eliminate his tax
liability for that year, thereby making the dischargeability of it academic.

                                                  5
aggravating circumstances to raise the late filing of returns and failure to pay to the

level of willfulness that would make the debt at issue nondischargeable.”

      The government appealed to the district court, which affirmed the

bankruptcy court. In its memorandum opinion the district court found the issue

and facts in Dr. Fretz’ case to be “virtually indistinguishable” from those of In re

Haas, 

(11th Cir. 1995), abrogated in part, In re Griffith, 

, 1395-96 (11th Cir. 2000) (en banc), where we held that a debtor who

accurately filed his tax returns but intentionally failed to pay taxes did not fit

within the exception to dischargeability provided in § 523(a)(1)(C). The district

court held that because intent was the determinative factor and Dr. Fretz did not

engage in any affirmative acts to avoid his taxes, there was no willful attempt to

evade or defeat taxes within the meaning of § 523(a)(1)(C). The government

appealed.

                                  II. DISCUSSION

      We review the bankruptcy court's factual findings under the clearly

erroneous standard. General Trading Inc. v. Yale Materials Handling Corp., 

, 1494 (11th Cir. 1997). By contrast, conclusions of law, whether from

the bankruptcy court or the district court, we review de novo. 

under Chapter 7 of the Bankruptcy Code is generally granted a


                                            6
discharge from all debts that arose prior to the filing of the bankruptcy petition. 11

U.S.C. § 727(b). Nonetheless, this “fresh start” policy is only available to the

“honest but unfortunate debtor.” Grogan v. Garner, 

, 286-87, 111 S.

Ct. 654, 659 (1991) (quoting Local Loan Co. v. Hunt, 

, 244, 

, 699 (1934)). To ensure that, Congress provided several exceptions to the

general rule of discharge. One of those exceptions, and the one at play in this case,

is contained in § 523(a)(1)(C), which provides, in relevant part:

      (a) A discharge under § 727 . . . of this title does not discharge an
      individual debtor from any debt–
      (1) for a tax or a customs duty–
                                  *        *        *
      (C) with respect to which the debtor made a fraudulent return or
      willfully attempted in any manner to evade or defeat such tax. . .

11 U.S.C. § 523(a)(1)(C). As we have noted before, “[t]he Government bears the

burden to prove, by a preponderance of the evidence, that a particular claim is

nondischargeable under § 523(a).” In re Griffith, 

, 1396 (11th Cir.)

(en banc) (citing 

, 111 S. Ct. at 659-60), cert. denied,

___ U.S. ___, 

(2000).

      Dr. Fretz did not file tax returns for the years in question until November of

1994 when he signed returns that had been prepared by the IRS. So, we are not

concerned with the first part of § 523(a)(1)(C), which is aimed at a debtor who has




                                          7
“made a fraudulent return,” but only with the second part, which is aimed at one

who has “willfully attempted in any manner to evade or defeat” his income taxes.

      Exceptions to the general rule of discharge, such as § 523(a)(1)(C), are to be

strictly construed in favor of the debtor. 

; In re Fegeley,

, 983 (3d Cir. 1997); Dalton v. I.R.S., 

, 1300 (10th Cir.

1996). But that rule of strict construction does not permit or require that an

unambiguous provision be construed contrary to the plain meaning of its terms. To

the contrary, we are required to interpret straightforward, unambiguous language in

the Bankruptcy Code, like that in all other statutes, according to its plain meaning.

See United States v. McLymont, 

, 401 (11th Cir. 1995) ( "[T]he plain

meaning of the statute controls unless the language is ambiguous or leads to absurd

results.") (citation omitted); see also In re American Steel Product, Inc., 

, 1356 (11th Cir. 1999) (“It is well-settled that courts are required to apply the

plain meaning canon of statutory construction in interpretation of the Bankruptcy

Code.”). When statutory language has not been expressly defined, we are to give

that language its common meaning. Consolidated Bank, N.A. v. United States

Dep’t of Treasury, 

, 1464 (11th Cir. 1997) (“In the absence of a

statutory definition of a term, we look to the common usage of words for their

meaning.”). The plain language of the second prong of § 523(a)(1)(C) contains a


                                          8
conduct requirement (that the debtor “attempted in any manner to evade or defeat

[a] tax”), and a mental state requirement (that the attempt was done “willfully”).

See 

; In re Birkenstock, 

, 951 (7th Cir. 1996).

We turn now to a closer look at those two requirements to see if the government

carried its burden of establishing that the § 523(a)(1)(C) exception applies in this

case.

                           1. The Conduct Requirement

        We begin our closer look with the conduct requirement, remembering that

“Congress did not define or limit the methods by which a willful attempt to defeat

and evade might be accomplished and perhaps did not define lest its effort to do so

result in some unexpected limitation.” 

(quoting Spies v.

United States, 

, 499, 

, 368 (1943)); see also 

. Dr. Fretz argues that the outcome in this case is controlled by our

decision in In re Haas, 

(11th Cir. 1995), abrogated in part, In re

Griffith, 

, 1395-96 (11th Cir. 2000) (en banc). In that case, we

considered a debtor who had filed accurate returns but had not paid his taxes, and

held that simply failing to pay taxes is not enough to satisfy § 523(a)(1)(C)’s

conduct requirement. 

(“[A] debtor’s failure to pay his taxes,




                                          9
alone, does not fall within the scope of section 523(a)(1)(C)’s exception to

discharge in bankruptcy.”).

      We noted in Haas that a reading of § 523(a)(1)(C) in isolation, and

especially the broad phrase “in any manner,” might lead to the conclusion that

simply failing to pay taxes was within the scope of the nondischargeability

provision. 

But we also noted that other provisions contained in the

Internal Revenue Code referred to “willfully attempting in any manner to evade or

defeat any tax or the payment thereof.” See 

U.S.C. § 6531(2)); see

also 

identical language contained in 26 U.S.C. §§ 6653, 6672,

& 7201). Drawing from that comparison, we concluded:

      The omission of the words “or the payment thereof” from section
      523(a)(1)(C), in light of Congress’s previous inclusion of these words
      on four previous occasions, indicates that Congress did not intend that
      a failure to pay taxes, without more, should result in the
      nondischargeability of a debtor’s tax liabilities in bankruptcy.

Most of the other circuits that have examined this issue agree that a

simple failure to pay taxes does not satisfy § 523(a)(1)(C)’s conduct requirement.

See 

(agreeing with Haas that nonpayment of taxes is not

sufficient to satisfy the conduct requirement, but nonpayment is “relevant evidence

which [we] should consider in the totality of conduct to determine whether or not

the debtor willfully attempted to evade or defeat taxes”) (citation and internal


                                          10
marks omitted, alteration in original); 

(same); 

(same); but see In re Bruner, 

, 200 (5th Cir. 1995)

(rejecting reasoning of Haas and holding that “[s]ection 523(a)(1)(C) surely

encompasses both acts of commission as well as culpable omissions”). In any

event, that part of Haas is still the law of this circuit.

       We did go even further in Haas, however, and, distinguishing between the

assessment of taxes on one hand, and the payment or collection of taxes on the

other, reached a second holding: that § 523(a)(1)(C) did not cover attempts to

evade or defeat the payment or collection of taxes. 

(“[T]he

phrase ‘attempt[s] in any manner to evade or defeat such tax’ does not imply

attempts to evade or defeat payment thereof.”). That part of Haas is no longer the

law in this circuit, however, because we overturned it in In re Griffith, 

(11th Cir.) (en banc), cert. denied, ___ U.S. ___, 

(2000).

       Griffith involved a debtor who had not attempted to evade or defeat the

assessment of any tax, but he had engaged in intra-family transfers of property for

insufficient consideration in an attempt to avoid paying income taxes. Taking to

heart the criticism by several circuits of our second holding in Haas, we overturned

it and held that § 523(a)(1)(C) precludes discharge when the debtor “willfully

attempted . . . to evade or defeat” a tax at the payment stage, just as surely as it


                                             11
does where the attempted evasion occurs at the assessment stage. 

, 1395-96.

      That holding in Griffith was based in part on the reasoning that a contrary

interpretation of § 523(a)(1)(C) permitting a debtor to evade the collection of taxes

would not serve the balance that section strikes between the “fresh start” policy

and the policy of preventing tax evasion; it would only give an advantage to

dishonest debtors. 

(citation omitted). Additionally, we recognized that

if § 523(a)(1)(C) was read as being inapplicable to attempts to evade payment or

collection of taxes, the result would be that the statutory language “willfully

attempted in any manner to evade or defeat taxes” would apply only in cases where

a fraudulent return was filed; that situation, however, is already covered by the first

part of § 523(a)(1)(C). 

reasons, we held in Griffith that §

523(a)(1)(C) renders a tax debt nondischargeable where the debtor willfully

attempted to evade or defeat the payment of the tax, even though the debtor did not

attempt to evade or defeat the assessment of the tax. 

      To summarize, as the law of this circuit now stands, the conduct requirement

of § 523(a)(1)(C) is not satisfied where a debtor has filed accurate tax returns and

simply failed to pay taxes as the debtor in Haas 

(“The

omission of the words ‘or the payment thereof’ from section 523(a)(1)(C) . . .


                                          12
indicates that Congress did not intend that a failure to pay taxes, without more,

should result in the nondischargeability of a debtor’s tax liabilities in

bankruptcy.”). The conduct requirement is satisfied, however, where a debtor

engages in affirmative acts to avoid payment or collection of taxes as the debtor in

Griffith 

. Dr. Fretz argues that he has simply failed to pay

his taxes and, according to our decisions in Haas and Griffith, that is not enough to

render his tax liability nondischargeable.

      We disagree. We have never had a § 523(a)(1)(C) case involving a debtor

who not only failed to pay taxes but also failed to file tax returns. That is not the

situation presented in either Haas or Griffith. Dr. Fretz argues that Haas fits, but

his failure to file returns distinguishes his situation from that of the debtor in Haas

who did file returns each year, as required. 

. All that Haas

establishes is that the failure to pay taxes, without more, does not bar discharge of

tax debts.

      Likewise, Griffith is not controlling either, except it does establish that at

least where the debtor engaged in affirmative acts designed to evade payment, §

523(a)(1)(C) applies to bar discharge, even if there was no attempt to evade

assessment of tax. The Griffith decision speaks of affirmative acts, because in that

case there were affirmative acts (transfers of property for less than fair


                                           13
consideration) undertaken in the attempt to evade payment or collection of taxes.

Griffith stands foursquare for the proposition that affirmative acts of evasion are

sufficient, but it does not stand foursquare or otherwise for the proposition that

affirmative acts are required. Put another way, Griffith did not hold – and because

the facts of that case did not present the issue, it could not have held – that acts of

omission alone cannot constitute an attempt in any manner to evade or defeat a tax

within the meaning of § 523(a)(1)(C).

       Although we have not previously faced the omission only issue presented in

this case, the Third and Sixth Circuits have. Each of those circuits have held that

omitting to file tax returns, when coupled with the failure to pay taxes, does satisfy

the conduct requirement of § 523(a)(1)(C). See In re Fegeley, 

, 984

(3d Cir. 1997) (“Fegeley’s intentional failure to file his tax returns, together with

his failure to pay taxes when he had the resources to do so, was sufficient to prove

that he attempted to evade or defeat his tax liabilities.”); In re Toti, 

,

809 (6th Cir. 1994) (“[F]ailure to file a tax return and failure to pay a tax fall

within the definition in § 523(a)(1)(C) of a willful attempt to evade or defeat a tax

liability.”). We think that the Third and Sixth Circuits got it right.

      Section 523(a)(1)(C) does not contain an affirmative conduct requirement.

Insofar as conduct is concerned, the plain statutory language simply requires that


                                           14
the debtor have “attempted in any manner to evade or defeat [a] tax.” §

523(a)(1)(C). We agree with the other two circuits that the modifying phrase “in

any manner” means what it says and covers attempts to evade or defeat a tax

whether accomplished by “acts of culpable omission [or] acts of commission.”

(citations omitted); accord 

(“a plain

reading of § 523(a)(1)(C) includes both acts of commission and acts of omission”).

      Our conclusion in this respect is supported by a number of prior decisions of

this Court and the Supreme Court holding that the well-established meaning of the

word “any” is all; not just some, but all. Merritt v. Dillard Paper Co., 

, 1186 (11th Cir. 1997) (where “‘Congress did not add any language limiting

the breadth of that word,’ . . . ‘any’ means all.”) (quoting United States v.

Gonzales, 

, 5, 

, 1035 (1997)); 

(“the adjective

‘any’ is not ambiguous; it has a well-established meaning”); see also Lyes v. City

of Riviera Beach, 

, 1337 (11th Cir. 1999) (en banc) (same); United

States v. Castro, 

, 445 (11th Cir. 1988) (concluding that “any” meant

“every” or “all”).

      Our holding that acts of omission designed to evade payment or collection of

taxes are sufficient to satisfy § 523(a)(1)(C) is also supported by our reasoning in

Griffith, where we explained that we “disfavor interpretations of statutes that


                                          15
render language superfluous,” and “that courts have traditionally been reluctant to

limit the means by which a taxpayer may ‘willfully attempt in any manner to evade

or defeat’ 

(citations omitted). An interpretation of §

523(a)(1)(C) which covered only acts of commission and not culpable acts of

omission would limit the means by which a taxpayer may be found to have

willfully attempted to evade or defeat taxes, and it would tend to make the

modifying phrase “in any manner” superfluous. For all of these reasons, we hold §

523(a)(1)(C) covers both acts of commission and acts of omission. Dr. Fretz’

failure to file tax returns, coupled with his failure to pay his taxes, satisfy the

conduct requirement of § 523(a)(1)(C).5

                             2. The Mental State Requirement

       As for the mental state requirement, a debtor’s attempt to avoid his tax

liability is considered willful under § 523(a)(1)(C) if it is done voluntarily,

consciously or knowingly, and intentionally. See 

; In

re Tudisco, 

, 137 (2d Cir. 1999); 

;

; 

; 

.



       5
         The reporting of Dr. Fretz’ income to the IRS on Forms 1099 does not preclude a
finding that he “attempted in any manner to evade or defeat [a] tax.” His employers, not Dr.
Fretz, filed those forms with the IRS. That fact does not say anything about whether Dr. Fretz
himself “attempted in any manner to evade or defeat [a] tax.” It only indicates that his attempt
had little chance of succeeding.

                                                16
Fraudulent intent is not required. 

(rejecting debtor’s

contention that “willfulness language in the second prong of § 523(a)(1)(C) should

be interpreted consistently with the criminal provisions of the Internal Revenue

Code, and that ‘proof of fraud is a necessary element of [that prong]’”) (alteration

in original). Thus, all the government must prove is that Dr. Fretz:

      (1) had a duty to file income tax returns and pay taxes;

      (2) knew he had such a duty; and

      (3) voluntarily and intentionally violated that duty.

See 

; 

. The first two

components are not really at issue in this case. The real issue is about the third

one. The third or willfulness component of the mental state requirement “prevents

the application of the exception to debtors who make inadvertent mistakes,

reserving nondischargeability for those whose efforts to evade tax liability are

knowing and deliberate.” 

.

      We reject Dr. Fretz’ contention that “[t]he United States’ argument that late

filing of returns establishes willfulness under subsection (C) effectively would

eliminate the 2-year time limit of subsection (B) from the Bankruptcy Code.” He

is referring to § 523(a)(1)(B), which provides:

      (a) A discharge under § 727 . . . of this title does not discharge an
      individual debtor from any debt–

                                          17
      (1) for a tax or a customs duty–
                                  *       *       *
      (B) with respect to which a return, if required–

             (i) was not filed; or

             (ii) was filed 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 petition. . .

11 U.S.C. § 523(a)(1)(B). Even assuming that the returns Dr. Fretz signed that had

been prepared by the IRS constitute late-filed returns for the purposes of §

523(a)(1)(B)(ii), the government’s argument does not, as he suggests, eliminate

discharge for debtors who file late returns. A debtor who simply files returns after

they are due but at least two years before filing a bankruptcy petition can still

obtain a discharge if he has not also attempted to evade or defeat the tax, within the

meaning of § 523(a)(1)(C), as can a debtor who filed returns late due to mistake,

inadvertence, or an honest misunderstanding of the tax laws. In any event,

questions involving the late-filed returns in this case go to the conduct requirement

of § 523(a)(1)(C) – whether the debtor attempted to evade or defeat the tax – and

not to the mental state requirement, as Dr. Fretz seems to believe.

      It is undisputed that Dr. Fretz had a duty to pay taxes and that he was aware

of that duty. Indeed, he testified that he suffered mentally and emotionally

throughout the years in question because of his awareness that he was failing to file


                                          18
returns and pay taxes as he knew he was required to do. He said that he was

always mindful of his duty to pay taxes, and it weighed so heavily upon him that

the IRS became the focus of his life. There is no evidence that Dr. Fretz’ failure to

file returns and pay taxes during these years was due to inadvertence or mistake;

indeed, his own testimony rules out that possibility. As a practicing emergency

room physician, he had the means to pay his taxes, and he had the ability either to

file his tax returns himself or to engage an accountant to file the returns for him.

Put bluntly, someone who can control his drinking enough to perform medical

procedures during twelve- to twenty-four hour shifts in an emergency room over a

period of years, can control his drinking enough to file tax returns and pay taxes

during that same period. Instead of doing that, as Dr. Fretz himself put it, he “just

totally ignored” his tax responsibilities. He chose to ignore them, just as he chose

not to ignore his emergency room responsibilities. Under these circumstances, the

finding that Dr. Fretz’ attempt to evade or defeat his tax liability was not willful is

clearly erroneous.

                                III. CONCLUSION

      For the foregoing reasons, we hold that Dr. Fretz’ tax debts for the years in

question fall within the scope of § 523(a)(1)(C), and therefore are not

dischargeable in bankruptcy.


                                           19
REVERSED.




            20