DECISION ON MOTION TO DISMISS

WILLIAM C. HILLMAN, Chief Judge

Introduction

Prior to filing for relief under Chapter 11, John H. Kimball, Jr. (the "Debtor") filed a request for an extension of the deadline to file his 1995 tax return on Form 4868, "Application for Automatic Extension of Time To File U.S. Individual Income Tax Return" (the "Extension"). On the Extension the Debtor indicated that no tax was due, but the eventual tax due was approximately $42,000. After filing his Chapter 11 petition, the Debtor filed a Complaint for Declaratory Relief (the "Complaint") seeking a determination that his 1995 income tax liability is dischargeable pursuant to 11 U.S.C. § 523 (a)(1)(A). In support, the Debtor argues that because his inaccurate estimate rendered the Extension invalid, the 1995 taxes fall outside of the § 507(a)(8)(A)(i) three year time period. The Internal Revenue Service ("IRS") moved to dismiss the Complaint on the grounds that the Extension was valid. After a hearing, I took the matter under advisement. This is a core proceeding. 28 U.S.C. § 157 (b)(2)(I). For the reasons set forth below, I now grant the motion to dismiss.

Discussion

The standard for ruling on a motion to dismiss under Fed.R.Civ.P. 12(b)(6) requires a court to accept the "factual averments contained in the complaint as true, indulging every reasonable inference helpful to the plaintiff's cause." In re Fidler, 226 B.R. 734, 736 (Bankr.D.Mass. 1998), quoting Garita Hotel Ltd. P'ship v. Ponce Fed. Bank, 958 F.2d 15, 17 (1st Cir. 1992). A motion to dismiss must be denied unless it appears that the plaintiff can prove no set of facts in support of its claim that would entitle it to the relief sought. Hishon v. King Spalding, 467 U.S. 69 (1984); Conley v. Gibson, 355 U.S. 41 (1957)

There is a significant amount of case law denying a taxpayer the right to void an extension under 26 C.F.R. § 1.6081-4 (2000) In re Hermann, 217 B.R. 944, 949 (Bankr. N.D. Okla. 1998) ("Having previously obtained the benefit of the extension, . . . [the taxpayer] cannot now escape its burden . . . [t]he regulation [§ 1.6081-4(c)] reasonably infers that only the IRS has the option to declare an extension void."); In re Brustman, 217 B.R. 828, 835 (Bankr. S.D. Cal. 1997) ("[the taxpayer] cannot now step forward to make the self-serving admission of a fraud in estimating his tax liability, and thereby void the automatic extension . . . under IRS regulations, the application for an extension is terminable, not void, at the discretion of the IRS, not the taxpayer."); United States v. Lambrakis, 1994 WL 544289, *2 (E.D.N.Y Sept. 27, 1994) ("under IRS regulations, the application for an extension is terminable, not void, at the discretion of the IRS, not the taxpayer."); In re Gidley, 138 B.R. 298, 300 (Bankr. M.D. Fla. 1992) (holding absent IRS termination, extension was valid and taxpayer lacked authority to void extension)

Each of the aforementioned cases were decided on facts similar to those presented here, interpreting whether a Form 4868 request for an extension under § 1.6081-4(c) was effective. These courts held that it would be inequitable to allow a taxpayer to estimate a tax liability in order to obtain an extension and then claim that the estimate was wrong for the self-serving purpose of discharging a liability. I agree. This conclusion is supported by § 1.6081-4(c) which reasonably infers that an extension is terminable only after written notice from the IRS. Brustman, 217 B.R. at 835; Lambrakis, 1994 WL 544289 at *2; Gidley, 138 B.R. at 300; Hermann, 221 B.R. at 949.

Debtor's reliance upon Revenue Ruling 79-113, 1979-1 C.B. 389, and Crocker v. Commissioner, 92 T.C. 899 (1989) is misplaced because in both of those cases the IRS, not the taxpayer, sought to void the extensions. In each case, the taxpayers failed to make a proper estimate of tax liability on their Forms 4686 request for extension. The Crocker court stated that "[the IRS] may properly void automatic extensions of filing deadlines where the taxpayer's Form 4868 is invalid because of failure to properly estimate tax liability." Crocker, 92 T.C. at 911. The court was silent as to the taxpayer's ability to void an extension, and therefore, Crocker offers little guidance for the present case.

Additionally, the Debtor asserts that the IRS has impermissibly taken inconsistent positions on the issue of the validity of extension requests in the tax court and bankruptcy court. According to the Debtor, the IRS has argued in tax court that an extension request not meeting the requirements of § 1.6081-4 is per se invalid, see Oliver v. Commissioner, T.C. Memo 1997-84; McPike v. Commissioner, T.C. Memo 1996-46; Mordkin v. Commissioner, T.C. Memo 1996-187; Mayhew v. Commissioner, T.C. Memo 1994-310; Arnaiz v. Commissioner, T.C. Memo 1992-729; Crocker v. Commissioner, 92 T.C. 899 (1989); Rev. Rul. 79-113, while in bankruptcy court, the IRS has argued that an extension request is valid until the IRS revokes it. See In re Gidley, 138 B.R. 298 (Bankr. M.D. Fla. 1992); In re Viego, 224 B.R. 570 (Bankr. E.D. N.C. 1997); Phillips v. United States, 843 F.2d 438 (11th Cir. 1988)

I do not agree that the case law demonstrates an inconsistency in the IRS position, but rather each case adheres to a two-step procedure for terminating an automatic extension. First, as provided by § 1.6081-4(c), the IRS district director may terminate an automatic extension at any time by mailing notice of termination to the taxpayer. Second, if the director initiates termination, the validity of the extension request is examined under Crocker. Under Crocker, a taxpayer is treated as having properly estimated his tax liability when he makes a bona fide and reasonable estimate of his tax liability based on the information available to him at the time he makes his request for an extension. Crocker, 92 T.C. at 908. The reasonableness of the estimate is a fact determination made on a case-by-case basis.

Conclusion

Because the Debtor can prove no set of facts in support of his dichargeability claim, I will enter a separate order granting the Motion to Dismiss.