In Re: America W. Airlines

• Decision Date: 16 February 2000
• Docket Number: No. 98-16918,98-16918
• Citation: 217 F.3d 1161
• Parties: (9th Cir. 2000) In re: AMERICA WEST AIRLINES, INC., Debtor. EL PASO CITY OF TEXAS, Appellant, v. AMERICA WEST AIRLINES, INC., Appellee
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1161

217 F.3d 1161 (9th Cir. 2000)

In re: AMERICA WEST AIRLINES, INC., Debtor.

EL PASO CITY OF TEXAS, Appellant, v. AMERICA WEST AIRLINES, INC., Appellee.

No. 98-16918

U.S. Court of Appeals for the Ninth Circuit

Argued and Submitted February 16, 2000--San Francisco, California

Filed July 11, 2000

Kent M. Rider, Linebarager, Heard, Goggan, Blair, Graham, Pena & Sampson, El Paso, Texas, for the appellant.

Annette W. Jarvis, LeBoeuf, Lamb, Greene & MaCrae, Salt Lake City, Utah, for the appellee.

Appeal from the United States District Court for the District of Arizona; Paul G. Rosenblatt, District Judge, Presiding. D.C. No. CV 97-01333-PGR

Before: Mary M. Schroeder, John T. Noonan, and A. Wallace Tashima, Circuit Judges.

TASHIMA, Circuit Judge:

The City of El Paso ("City" or "El Paso") appeals the district court's order affirming the bankruptcy court's decision granting summary judgment in favor of the debtor, America West Airlines, Inc. ("America West"), and denying El Paso's motion for summary judgment. El Paso contends that the courts below erred in disallowing its tax claim pursuant to 11 U.S.C. S 502(d). We have jurisdiction under 28 U.S.C. SS 158(d) and 1291, and we affirm.

Background

On June 27, 1991, America West filed a petition for relief under chapter 11 of the Bankruptcy Code. On February 1, 1992, El Paso filed a proof of claim in America West's bankruptcy case for personal property taxes for the 1991 tax year. On August 31, 1994, America West filed an objection to several claims, including the City's. The bankruptcy court subsequently entered an order designating an adversary proceeding to resolve all disputes between El Paso and America West. See America West Airlines, Inc. v. City of El Paso (In re America West Airlines, Inc.), 208 B.R. 476, 477-78 (Bankr. D. Ariz. 1997) ("America West I").

The parties filed motions for summary judgment, and, in a published opinion, the bankruptcy court concluded that El Paso's claim was disallowed in its entirety under 11 U.S.C. S 502(d), which provides for the disallowance of claims that are based on avoidable transfers. See id. at 481. El Paso's tax lien was a statutory lien not enforceable against a bona fide purchaser at the time America West's bankruptcy case began and, thus, was an avoidable transfer under S 545(2). See id. at 480. Because the lien was avoidable under S 545, America West was entitled to invoke S 502(d) to object to the claim, and the bankruptcy court therefore disallowed the claim. See id. at 479-81.

On appeal to the district court, the sole issue raised by the City, an issue raised for the first time on appeal, was whether the bankruptcy court misapplied S 502(d) by failing to find that the City refused to turn over property belonging to America West. The district court concluded that, even if the arguments were properly raised for the first time on appeal, the City's interpretation of S 502(d) was contrary to the plain meaning of the statute. The court therefore rejected the City's contention and affirmed the bankruptcy court's decision.

Standard of Review

The district court's decision on appeal from a bankruptcy court is subject to de novo review. See Preblich v. Battley, 181 F.3d 1048, 1051 (9th Cir. 1999). We review the bankruptcy court's decision independently of the district court's decision, applying a clearly erroneous standard to the bankruptcy court's findings of fact and reviewing its conclusions of law de novo. See id.; Law Offices of Nicholas A. Franke v. Tiffany (In re Lewis), 113 F.3d 1040, 1043 (9th Cir. 1997).

Discussion

Section 502 of the Bankruptcy Code deals with the allowance of claims in a bankruptcy case. In general, if a proof of claim is filed, the claim is allowed, unless a party in interest objects. See 11 U.S.C. S 502(a). However, S 502(d) disallows the claims of creditors who have received avoidable transfers, unless the creditor relinquishes the transfer¹. See United States Lines, Inc. v. United States (In re McLean Indus.) , 184 B.R. 10, 14 (Bankr. S.D.N.Y. 1995), aff'd, 196 B.R. 670 (S.D.N.Y. 1996).

Relevant to this appeal, S 502(d) states that the bankruptcy court shall disallow a claim based on a transfer avoidable under S 545. See 11 U.S.C. S 502(d). Section 545 provides in part:

The trustee may avoid the fixing of a statutory lien on property of the debtor to the extent that such lien . . . is not perfected or enforceable at the time of the commencement of the case against a bona fide purchaser that purchases such property at the time of the commencement of the case, whether or not such a purchaser exists . . . .

11 U.S.C. S 545(2). Construing S 545 in conjunction with S 502, then, a claim based on a statutory lien that is not perfected or enforceable against a bona fide purchaser at the time the bankruptcy case is commenced shall be disallowed by the court, unless the claimant pays the amount or turns over any property for which it is liable.

The City contends that the courts below erred in permitting America West to invoke S 502(d) to disallow its claim. The City further contends that America West was barred from relying on S 545 by the limitations period in S 546.

I. Avoidability Under S 545

In order for the City's claim to be disallowed under S 502(d), the initial question is whether the City is a transferee of a transfer avoidable under S 545. Section 545 states that the trustee may avoid a statutory lien to the extent that the lien is not perfected or enforceable against a bona fide purchaser at the time the bankruptcy case is commenced.

The City's tax lien on America West's personal property arose under Tex. Tax Code Ann. S 32.01, which, on the date America West filed bankruptcy, provided in part, "On January 1 of each year, a tax lien attaches to property to secure the payment of all taxes . . . ultimately imposed for the year on that property." The Texas Tax Code further provided that "[a] tax lien may not be enforced against personal property transferred to a bona fide purchaser for value who does not have actual notice of the existence of the lien. " Tex. Tax Code Ann. S 32.03 (West 1988) (amended 1991). The City states that its lien was perfected at the time America West filed its petition, but concedes that it would not have been enforceable against a bona fide purchaser, citing City of Boerne v. Boerne Hills Leasing Corp. (In re Boerne Hills Leasing Corp.), 15 F.3d 57 (5th Cir. 1994).

In Boerne Hills, the Fifth Circuit concluded that tax liens held by various taxing units in Texas were avoidable under S 545(2), relying on the same version of the Texas Tax Code in effect at the time America West's bankruptcy case began.² See id. at 59. Construing SS 32.01 and 32.03 of the Texas Tax Code, the court concluded that the tax liens at issue would be avoidable under S 545 because they were unenforceable against a bona fide purchaser under Texas law. See Boerne Hills, 15 F.3d at 59 (citing County of Humboldt v. Grover (In re Cummins), 656 F.2d 1262, 1265 (9th Cir. 1981) ("the lien on personal property . . . is ineffective against a BFP, and therefore against the trustee in bankruptcy.")). El Paso's tax lien arose under the same statute as that at issue in Boerne Hills, and we see no reason why its lien should be treated any differently. We therefore agree with the Fifth Circuit and conclude that El Paso's lien was not enforceable against a bona fide purchaser at the time America West's bankruptcy case began; therefore, we hold that it was avoidable under S 545(2).

The City challenges this conclusion, arguing that a tax lien is not property under Texas law and that the City was therefore not the transferee of property belonging to America. Section 101(54) defines a transfer as "every mode, direct or indirect, absolute or conditional, voluntary or involuntary, of disposing of or parting with property or with an interest in property, including retention of title as a security interest and foreclosure of the debtor's equity of redemption. " See also City of Farmers Branch v. Pointer (In re Pointer) , 952 F.2d 82, 87 (5th Cir. 1992) (stating that the attachment of a tax lien under S 32.01 of the Texas Tax Code is a transfer of property for bankruptcy purposes). Because a tax lien is an involuntary parting of an interest in property, it qualifies as a transfer within the meaning of the Bankruptcy Code; El Paso's lien is therefore avoidable as a lien unenforceable against a bona fide purchaser³.

II. Disallowance of Claim Under S 502(d)

As the transferee of a transfer avoidable underS 545, El Paso's claim is to be disallowed under S 502(d). The City contends, however, that there is another requirement that must be met in order for its claim to be disallowed. The statute states in relevant part that the court shall disallow the claim of a transferee of a transfer avoidable under S 545, unless the transferee "has paid the amount, or turned over any such property, for which such . . . transferee is liable under section 522(i), 542, 543, 550, or 553 of this title." 11 U.S.C. S 502(d). The City construes this phrase as meaning that the court must find, first, that the City was liable to turn over property to America West and, second, that the City failed to do so. Although the district court stated that this issue was waived because the City raised it for the first time on appeal, it nonetheless rejected the argument on the merits as well.

A. Waiver of Issue

El Paso contends that it did not waive this issue, pointing to several pages in its brief submitted to the bankruptcy court. Nowhere in its brief, however, did the City raise this argument.

Absent exceptional circumstances, we generally will not consider arguments raised for the first time on appeal, although we have discretion to do so. See Los Angeles News Serv. v. Reuters Television Int'l, 149 F.3d 987, 996 (9th Cir. 1998), cert. denied, 525 U.S. 1141 (1999); Marx v. Loral Corp., 87 F.3d 1049, 1055 (9th Cir. 1996)...