Carson Pirie Scott & Co. (Southdale) v. County of Hennepin

• Decision Date: 19 November 1993
• Docket Number: C4-93-566 and C6-93-567,Nos. C2-93-565,s. C2-93-565
• Citation: 508 N.W.2d 200
• Parties: CARSON PIRIE SCOTT & COMPANY (SOUTHDALE), et al., petitioners, Relators, v. COUNTY OF HENNEPIN, Respondent. CARSON PIRIE SCOTT & COMPANY (NORTHTOWN), petitioner, Relator, v. COUNTY OF ANOKA, Respondent. CARSON PIRIE SCOTT & COMPANY (MAPLEWOOD), et al., petitioners, Relators, v. COUNTY OF RAMSEY, Respondent.
• Court: Minnesota Supreme Court

Page 200

508 N.W.2d 200

CARSON PIRIE SCOTT & COMPANY (SOUTHDALE), et al., petitioners, Relators, v. COUNTY OF HENNEPIN, Respondent.

CARSON PIRIE SCOTT & COMPANY (NORTHTOWN), petitioner, Relator, v. COUNTY OF ANOKA, Respondent.

CARSON PIRIE SCOTT & COMPANY (MAPLEWOOD), et al., petitioners, Relators, v. COUNTY OF RAMSEY, Respondent.

Nos. C2-93-565, C4-93-566 and C6-93-567.

Supreme Court of Minnesota.

Nov. 19, 1993.

Syllabus by the Court

The automatic stay provision of the United States Bankruptcy Act, 11 U.S.C. § 362(a) (1988), does not stay the automatic dismissal of a debtor taxpayer's petition under Minn.Stat. ch. 278 for nonpayment of real estate taxes.

Mark T. Solstad, David S. Wething, Minneapolis, MN, for Carson Pirie Scott & Co.

Mark Kapter Maher, Asst. Hennepin County Atty., Minneapolis, for Hennepin County.

Thomas G. Haluska, Asst. Anoka County Atty., Anoka, for Anoka County.

M. Jean Stepan, Asst. Ramsey County Atty., St. Paul, for Ramsey County.

Heard, considered, and decided by the court en banc.

SIMONETT, Justice.

Does the automatic stay provision of the bankruptcy code preclude the dismissal, for failure to pay real estate taxes, of the debtor taxpayer's Chapter 278 petitions? The Tax Court held that the dismissals were effective and not stayed. By certiorari the debtor taxpayer seeks review, and we affirm.

On May 8 and 13, 1991, relator Carson Pirie Scott and Company (Carson) filed petitions challenging the 1990 estimated market value on its property in Ramsey County (Highland and Maplewood) and its property in Hennepin County (Southdale, Ridgedale and Eden Prairie). Carson paid the first half of real estate taxes due May 15, 1991.

On August 23, 1991, Carson filed a petition for a Chapter 11 bankruptcy. On October 15, when the second half of real estate taxes came due, Carson neither paid the taxes nor sought a waiver of payment, and the petitions and proceedings thereunder were automatically dismissed pursuant to the mandate of Minn.Stat. § 278.03 (1992). ¹

The next year, on May 11 and 14, 1992, Carson filed petitions challenging the January 2, 1991 estimated market value of property in Anoka County (Northtown) and the Highland property, but it did not pay the first half of taxes due May 15, 1992, nor did it seek a waiver of payment. Again the petitions were automatically dismissed.

In January 1993, Carson moved the Minnesota Tax Court to reinstate the petitions, contending that the automatic stay under federal bankruptcy law voided the automatic dismissals. The Tax Court (Judge Doar) denied the motions, and Carson now appeals that ruling to us. The cases involving the three counties are consolidated for purposes of this appeal.

We turn, now, to the automatic stay provision of the United States Bankruptcy Code, 11 U.S.C. § 362(a) (1988), which, in pertinent part, provides that the filing of a petition for bankruptcy operates as a stay, applicable to all entities, of--

(1) the commencement or continuation, * * * of a judicial, administrative, or other action or proceeding against the debtor that was or could have been commenced before the commencement of the case under this title, or to recover a claim against the debtor that arose before the commencement of the case under this title;

* * * * * *

(3) any act to obtain possession of property of the estate or of property from the estate or to exercise control over property of the estate;

* * * * * *

(6) any act to collect, assess, or recover a claim against the debtor that arose before the commencement of the case under this title.

Carson claims it is entitled to a stay under any and all of these three subparagraphs. We take up each in turn.

I.

We first consider subparagraph (a)(1) of section 362, quoted above, which stays the continuation of any prepetition "action or proceeding against the debtor." Carson, of course, does not want its petitions for tax relief stayed, nor does anyone claim that they should or could be. The tax petitions filed by Carson are proceedings initiated by the debtor, not against the debtor, and, consequently, the automatic bankruptcy stay of subparagraph (a)(1) does not apply to the petitions and the proceedings thereunder.

Carson argues, however, that the "proceeding" involved here is not the court proceedings initiated by the filing of the tax petitions, but the prepetition tax assessment and collection administrative process, and it then points out that this administrative process is against the debtor. We are not persuaded by this argument. The administrative tax collection process runs its own course, and Minn.Stat. ch. 278 provides for a separate and distinct court proceeding, established by statute, which is initiated by the taxpayer filing a petition. ²

Carson next argues that even if the proceeding at issue is the debtor's Chapter 278 petition, the automatic dismissal of that petition for nonpayment of taxes should be considered an independent action or proceeding which is against the debtor and, therefore, must be stayed. However, in determining whether a proceeding is against a debtor, the proceeding is to be viewed "at its inception." Maritime Elec. Co. v. United Jersey Bank, 959 F.2d 1194, 1204 (3d Cir.1992) (quoting Association of St. Croix Condominium Owners v. St. Croix Hotel Corp., 682 F.2d 446, 448 (3d Cir.1982)). Here the proceeding originated with the filing of the petition, which is, of course, by the taxpayer debtor. Carson points out that Maritime says, "Within a single case, some actions may be stayed, others not." 959 F.2d at 1204. The court in Maritime, however, was referring to multiple claims and multiple party litigation where, for example, a counterclaim or crossclaim against a debtor may be stayed while the claim by the debtor proceeds. But in a Chapter 278 proceeding, "(t)he petition, without any answer, return, or other pleading thereto, shall be tried * * *." Minn.Stat. § 278.05, subd. 1 (1992).

Instructive in this regard is Freeman v. Commissioner, 799 F.2d 1091 (5th Cir.1986). There the appellate court entered judgment affirming dismissal of the debtor's petition for redetermination of income tax liability, notwithstanding debtor's claim that the automatic stay applied. The Fifth Circuit reasoned that because the original proceeding had been initiated by the debtor's petition, the "subsequent appellate proceedings are also not against the debtor within the meaning of the automatic stay provisions of the Bankruptcy Code." Id. at 1093.

Carson next argues that if the automatic dismissal of its petition is not itself a "proceeding against the debtor," at least it is an "action against the debtor." Again we disagree. An "action" has been construed to mean some kind of affirmative action by an entity taken after investigation and deliberation characteristic of a discretionary decision. In re Gull Air, Inc., 890 F.2d 1255, 1262 (1st Cir.1989). In Gull Air, the debtor airline lost its arrival and departure "slots" at LaGuardia airport by failing to use them for 60 days after it filed for bankruptcy. In the event of nonuse, FAA regulations required that the slots "shall be recalled." Id. at 1261. The First Circuit rejected the debtor's argument that the automatic stay provision should operate to stay the withdrawal of the airport slots. Because withdrawal of the slots was automatic and mandatory, allowing for no discretion by the FAA, the court held the withdrawal did not constitute an "action." Id. at 1263. Similarly,...