STEPHEN MITCHELL, Bankruptcy Judge
Hearings were held in open court on November 30, 1999, and January 4, January 18, and February 8, 2000, on the debtor's objection to Claim No. 11 filed by the New York State Department of Taxation and Finance ("New York Department of Taxation" or "the Department") on January 25, 1999, in the amount of $26,537.47. The debtor was present by counsel. The chapter 13 trustee was present in person. The Department filed a written response to the objection but did not appear at the hearings.
Background
Vikram Malkani, an emergency room physician, filed a voluntary chapter 13 petition in this court on October 5, 1998. His second amended plan dated June 3, 1999, was confirmed on July 9, 1999. That plan provides for the debtor to pay the chapter 13 trustee $4,750.00 per month for 60 months. The bulk of the payments goes toward approximately $57,400 in priority taxes owed the Internal Revenue Service and the Commonwealth of Virginia and approximately $96,500 in mortgage arrearages. The estimated dividend on unsecured claims is 30%.
The New York Department of Taxation filed a timely proof of claim on January 25, 1999, in the amount of $26,537.43, of which $22,229.94 is claimed as secured, $3,362.49 as priority, and $945.00 as unsecured without priority. The secured portion of the claim consists of unpaid personal income taxes (including penalties and interest) for 1992 and 1993 in the amount of $22,229.94 based on actual returns filed. Notices of liens for those two years were filed in Albany County, New York, in December 1996 and September 1997, respectively. It is unclear from the record what, if any, property the debtor owns in Albany County. Nor has the court been advised whether, under New York law, a filed notice of tax lien attaches to real property of the taxpayer in counties other than the one in which it is recorded. The remainder of the proof of claim consists of personal income taxes, penalties and interest for 1995, 1996, and 1997 in the total amount of $4,307.49. The amount of that portion of the claim is estimated because the debtor had not filed tax returns for those years.
The debtor resides in Arlington, Virginia, but owns real estate in New York City and Briarcliff Manor, New York.
The objection filed by the debtor on October 29, 1999, to the Department's claim, asserts that the claim "in the amount of $26,537.43 for estimated income taxes" was made on the erroneous presumption "that the debtor is a resident of the State of New York, and thus owes taxes to the State of New York based on estimated income extrapolated from returns filed in prior years." The objection further states that "any tax liability based on income earned in those years" is due to the Commonwealth of Virginia, which is treated as a priority creditor under the debtor's plan. The Department, appearing through the Attorney General of New York, filed an opposition noting that the taxes claimed for 1992 and 1993 are based on returns actually filed and are not estimates. At the February 8, 2000, hearing, the debtor offered in evidence an affidavit, supported by copies of the nonresident and part-year resident New York State tax returns he and his wife, Anisha V. Malkani, belatedly filed for 1995, 1996, 1997, and 1998. According to those returns, the debtor and his wife owe (exclusive of statutory penalties and interest) $563 for 1995 and nothing for 1996, 1997, and 1998.
The date they were filed is not stated, but the returns reflect that they were signed at various dates between January 27, 1999, and October 14, 1999.
Discussion I.
This court has subject-matter jurisdiction under 28 U.S.C. § 1334 and 157(a) and the general order of reference entered by the United States District Court for the Eastern District of Virginia on August 15, 1984. Under 28 U.S.C. § 157(b)(2)(B), this is a core proceeding in which final orders and judgments may be entered by a bankruptcy judge.
II.
Except in chapter 11 cases, in which certain scheduled claims are "deemed filed, a creditor desiring to receive distributions in a bankruptcy case must file a timely proof of claim. § 501, Bankruptcy Code; F.R.Bankr.P. 3002(a). Once filed, a proof of claim "is deemed allowed" unless a party in interest objects. § 502(a), Bankruptcy Code. A proof of claim executed and filed in accordance with the Federal Rules of Bankruptcy Procedure constitutes "prima facie evidence of the validity and amount of the claim." F.R.Bankr.P. 3002(f). As a result, the party objecting to a properly filed proof of claim has the initial burden of presenting sufficient probative evidence to overcome such prima facie effect. In re C-4 Media Cable South, L.P., 150 B.R. 374, 377 (Bankr. E.D. Va. 1992). Once the debtor has done so, the burden of proof then shifts to the creditor to establish the validity and amount of its claim. Where, however, a tax claim is involved, and the specific issue is one on which, in a nonbankruptcy forum, the taxpayer would have the burden of proof, a debtor-taxpayer in bankruptcy must carry the burden of proof on that issue in connection with an objection to claim. IRS v. Levy (In re Landbank Equity Corporation), 973 F.2d 265 (4th Cir. 1992) (debtor-taxpayer has burden of proof on disallowed deductions).
§ 1111(a), Bankruptcy Code; F.R.Bankr.P. 3003(b)(1).
III.
As an initial matter the court notes that the objection to claim does not even address, let alone rebut, that portion of the claim related to the 1992 and 1993 income taxes. Those taxes, according to the proof of claim and the Department's response, are based on actual returns filed and are not estimates. Since no evidence has been put forth to rebut the prima facie effect of the proof of claim as it relates to the 1992 and 1993 income taxes, that portion of the claim, which amounts to $22,229.94, must be allowed.
A more difficult issue is raised by the Department's assertion of secured status for the claim. The debtor's plan does not treat the claim as secured. The debtor, however, has not brought a motion under § 506, Bankruptcy Code, to value the property that is subject to the tax lien, nor has the debtor brought an adversary proceeding challenging or seeking to avoid the lien. In this Circuit, chapter 13 plan confirmation, while it is res judicata on the payments a secured creditor will receive under the plan, does not affect any lien the creditor has unless a valuation motion or lien avoidance action is brought. Piedmont Trust Bank v. Linkous (In re Linkous), 990 F.2d 160 (4th Cir. 1993); Cen-Pen Corp. v. Hanson, 58 F.3d 89 (4th Cir. 1995); Deutchman v. Internal Revenue Service (In re Deutchman), 192 F.3d 457 (4th Cir. 1999). Since the 1992 and 1993 taxes are not treated as a secured claim by the confirmed plan and do not appear to be entitled to priority, they will be paid by the trustee pro rata with unsecured claims. The court cautions, however, that such treatment and payment is not determinative as to the validity of the lien, which, to the extent it has properly attached prior to the filing of the debtor's petition, remains unaffected by the confirmation order.
IV.
With respect to the 1995, 1996, and 1997 taxes, the court concludes that the debtor has rebutted the prima facie effect of the filed proof of claim. The proof of claim simply estimated income of $1,000 for each of the three years in question and added statutory penalties and interest. The affidavit and the copies of the late-filed returns for the years in question reflect only $563 in taxes owed. While the court can assume that penalties and interest would be owed for 1995, the evidence before the court is insufficient to determine what those amounts would be. Accordingly, the claim for the 1995, 1996, and 1997 taxes will be allowed as a priority claim in the amount of $563.
ORDER
For the foregoing reasons, it is
ORDERED:
1. The objection to claim is sustained in part and overruled in part. Claim No. 11 filed by the New York State Department of Taxation and Finance is allowed in the amount of $563.00 as a priority claim and in the amount of $22,229.47 as a nonpriority claim. The court makes no ruling as to whether the $22,229.47 nonpriority claim is secured or unsecured, and neither the entry of this order, nor the completion of payments under the plan, will affect any lien for such taxes that attached prior to the filing of the chapter 13 petition, unless, in a separate contested matter or adversary proceeding brought for that purpose, a determination is made that the claimed lien, or some portion of it, is void.
2. The clerk will mail a copy of this order to the parties listed below.