In Re H & C Enterprises

• Decision Date: 30 December 1983
• Docket Number: Bankruptcy No. 82-01334.
• Citation: 35 BR 352
• Court: U.S. Bankruptcy Court — District of Idaho
• Parties: In re H & C ENTERPRISES, a Partnership, Debtor.

35 B.R. 352 (1983)

In re H & C ENTERPRISES, a Partnership, Debtor.

Bankruptcy No. 82-01334.

United States Bankruptcy Court, D. Idaho.

December 30, 1983.

Rudolf D. Barchas, Boise, Idaho, for plan proponent LaVern Cahoon.

Dan Hockley, Asst. U.S. Atty., Dist. of Idaho, for the Internal Revenue Service.

MEMORANDUM DECISION

M.S. YOUNG, Bankruptcy Judge.

A plan of reorganization of the above debtor has been confirmed subject only to an amendment which is to provide, as relevant hereto, for full payment of the post-petition tax claim of the United States Government. The exact amount to be paid, however, is at issue. Specifically, the issue presented is whether or not the amount to be paid the Internal Revenue Service (hereafter IRS) pursuant to § 1129(a)(9) for unpaid post-petition tax liabilities should include, in addition to the actual tax and the penalty thereon, accrued interest.

The administrative expense claim of the IRS arises under § 503(b)(1)(B) which provides for allowance of:

"(B) any tax—

(i) incurred by the estate, except a tax of a kind specified in section 507(a)(6) of this title; or

(ii) attributable to an excessive allowance of a tentative carryback adjustment that the estate received, whether the taxable year to which such adjustment relates ended before or after the commencement of the case."

As is clear from that section, and subsection (b)(1)(C), the tax incurred by the estate and the penalty relating to such tax are both allowable components of the claim. The section does not, however, specifically provide for interest on the unpaid post-petition taxes due. It is the position of the United States that because the Internal Revenue Code defines interest to be part of an assessed tax, it too must be paid in cash on confirmation.

Only one court appears to have considered this issue. In re Stack Steel & Supply Co., 28 B.R. 151, 10 B.C.D. 232 (Bkrtcy.W.D.Wash.1983). Judge Treadwell there reached the following conclusions:

"The post-petition tax assessed by King County, Wa. itself was clearly `incurred by the estate\' and falls within the terms of Code § 503(b)(1)(B)(i). Accordingly, it is allowable as an administrative expense.

With respect to King County\'s claim for interest and penalty, the Court is hesitant to favor the county over other administrative claimants herein. Nevertheless, Code § 362(b)(8) permits the issuance by a tax unit of a notice of deficiency, and King County\'s November 3, 1982 filing of a request for payment of administrative expense for 1983-payable taxes properly may be viewed as such notice, from which penalty and interest may run if permitted by Code § 503. Because § 503(b)(1)(C), supra, specifically provides that a tax penalty incurred by the estate is recoverable as an administrative expense, the Court will allow the county\'s claim insofar as penalty is sought.

With respect to interest on the delinquent portion of the personal property tax, however, nothing in Code § 503 specifically provides for same.

The legislative history of § 503(b)(1)(B) indicates that the Senate desired administrative priority for interest on taxes and that S.2266 passed by the Senate on September 7, 1978 specifically provided for this. But earlier, the version of H.R. 8200 passed by the House on February 1, 1978, omitted any reference to interest on taxes, and provided only that taxes on, measured by, or withheld from wages, salaries or

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