Johnson, In re
| Decision Date | 24 April 1990 |
| Docket Number | No. 88-4079,88-4079 |
| Citation | 901 F.2d 513 |
| Parties | -1029, 58 USLW 2691, 90-2 USTC P 50,413, Bankr. L. Rep. P 73,376 In re Walter JOHNSON dba Johnson Star Route, Debtor. UNITED STATES of America, Plaintiff-Appellant, v. Richard B. GINLEY, Trustee, Defendant-Appellee. |
| Court | U.S. Court of Appeals — Sixth Circuit |
John P. McGinnis, Bedford Heights, Ohio, for debtor.
William J. Kopp, Office of the U.S. Atty., Cleveland, Ohio, Gary R. Allen, Acting Chief, William S. Rose, Murray S. Horwitz (argued), Gary D. Gray, Susan M. Poswistilo, and James I. Knapp, U.S. Dept. of Justice, Appellate Section Tax Div., Washington, D.C., for plaintiff-appellant.
Stephen D. Hobt (argued), Strachan, Green, Miller, Olender & Hobt, Cleveland, Ohio, for defendant-appellee.
Before JONES and GUY, Circuit Judges, and ENGEL, Senior Circuit Judge.
The United States Internal Revenue Service (IRS) appeals a September 12, 1988 ruling by the United States District Court for the Northern District of Ohio, which affirmed the bankruptcy court's decision to disallow a portion of the IRS's claim against the Debtor's estate for payment of federal taxes. The district court concluded that the IRS's claim for administrative expenses incurred in a Chapter 11 proceeding prior to the conversion to Chapter 7 was untimely since it was filed outside of the "bar date" set in the Chapter 7 proceedings. 1 For the reasons stated below, we affirm the disallowance of the claim as untimely.
Walter Johnson voluntarily entered Chapter 11 reorganization proceedings under the Bankruptcy Code on May 30, 1984. Johnson continued to operate his business, Johnson Star Route, as a debtor-in-possession until the Chapter 11 proceedings were converted into a Chapter 7 liquidation by order of the bankruptcy court on September 3, 1986. At the time of conversion, the bankruptcy court appointed Richard B. Ginley as Trustee in the Chapter 7 liquidation proceeding. Pursuant to Bankruptcy Rule 3003(c)(3), the bankruptcy court set February 2, 1987, as the "bar date" for filing claims applicable to the Chapter 11 proceeding. The IRS was properly included in the Debtor's schedule of debts filed upon conversion and, therefore, received notice of the claims bar date.
On October 21, 1986, the IRS initially filed a "request for payment" of taxes, including interest and penalties, for periods incurred subsequent to the filing of the Chapter 11 petition but prior to the conversion to Chapter 7. 2 The claim for administrative expenses included Withholding, Federal Insurance Contributions Act (FICA), Federal Unemployment Tax Act (FUTA), and Highway Use taxes for the following tax periods:
Kind of Tax Tax Period Balance Due
Withholding & FICA 3rd Quarter, 1985 $ 35.19
Withholding & FICA 1st Quarter, 1986 $2,777.46
Withholding & FICA 2nd Quarter, 1986 $1,699.30
FUTA 1984 $1,779.32
Highway Use 1984 $3,033.81
Total Liability: $9,325.08
After the bar date passed, the IRS filed a subsequent request, Claim No. 84, which purported to "amend, supplement and supersede" the prior request. The subsequent document, filed on September 9, 1987, adjusted the amounts for the previously itemized tax periods, but added Withholding & FICA taxes for a new tax period, the third quarter of 1986:
Kind of Tax Tax Period Balance Due
Withholding & FICA 3rd Quarter, 1985 $ 34.69
Withholding & FICA 1st Quarter, 1986 $2,738.02
Withholding & FICA 2nd Quarter, 1986 $1,688.86
Withholding & FICA 3rd Quarter, 1986 $4,793.45
FUTA 1984 $4,858.23
Highway Use 1984 $2,980.47
Total Liability: $17,093.72
Ginley filed an objection to the $4,793.45 claim for Withholding and FICA taxes for the third quarter of 1986. 3 Ginley argued in the bankruptcy court that (1) the new claim was untimely since it was not filed within the bar date, and (2) the claim was not actually an amendment to the prior claim but rather was an unauthorized late claim. In support of its claim, the IRS did not dispute the untimeliness, but argued that it was a proper amendment. The IRS reasoned that since the Debtor did not file his 1986 tax return regarding the subject tax liability until February 5, 1987, three days after the bar date, the IRS did not know that the Debtor was in operation at the time the Debtor incurred the tax liability.
The bankruptcy court rejected the arguments by the IRS and disallowed the claim for the third quarter of 1986 as a new claim filed beyond the bar date. (Order dated April 11, 1988, 84 B.R. 492.) The bankruptcy court first concluded that the subsequent claim for the third quarter of 1986 taxes did not amount to an amended claim but a new claim since the claim arose from a different tax period. Second, the bankruptcy court rejected the IRS's contention that it had no notice of the Debtor's operation during the subject period. The court found that the IRS had actual knowledge that the Debtor was operating and incurring tax liability during the third quarter of 1986 since the Debtor filed monthly operating reports, including a July 31, 1986 report filed during the third quarter. These monthly operating reports included, among other things, proof of post-petition tax payments to the IRS. Therefore, the court rejected the IRS's contention, presumably an equitable one, that the late filing of the 1986 Tax Return was the first notice. Third, the bankruptcy court concluded that the IRS failed to seek an extension of the claims bar date under Rule 3002(c)(1) and, therefore, the seven month delay in filing was "unreasonable and untimely."
The IRS appealed the adverse ruling to the district court. The IRS raised the argument that the second filing was a proper amendment, which the district court rejected. The IRS has not raised this issue on appeal to this court. Second, the IRS argued that an administrative expense claimant is not required to file a proof of claim and may file it outside of the assigned bar date. The district court rejected this argument, stating that "[b]y requiring the bankruptcy court to establish a bar date for claims, the only logical answer is that this date extends to an administrative claim for taxes as well."
The issue in this appeal is whether the bar date set by the bankruptcy court in the Chapter 7 case applies to the IRS's claim for administrative expenses incurred in the superseded Chapter 11 case. This is a question of law, and our review of the bankruptcy and district court decisions is plenary. See In re Caldwell, 851 F.2d 852, 857 (6th Cir.1988). As an initial matter, all of the administrative expenses at issue in this case arose post-petition and pre-conversion. Since the newly appointed Trustee ceased the operation of the business upon conversion, none of the claimed tax obligations were incurred after conversion. Therefore, we are not presented with administrative expenses incurred in a Chapter 7 proceeding nor are we presented with administrative expenses incurred in an unconverted case.
The allowance of administrative expenses is governed by 11 U.S.C. Sec. 503. 4 Section 503 provides that certain expenses incurred to preserve the estate during the pendency of the bankruptcy proceedings may be allowed. Administrative expense status is important because these claims are first priority unsecured claims under 11 U.S.C. Sec. 507(a)(1) and are paid before all other unsecured creditors. 5 The general purpose of the priority of post-petition administrative expenses is to "facilitate the rehabilitation of insolvent businesses by encouraging third parties to provide those businesses with necessary goods and services." See In re United Trucking Service, Inc., 851 F.2d 159, 161 (6th Cir.1988) ().
The parties on appeal do not dispute that the post-petition, pre-conversion tax claims at issue fall within the express statutory provision allowing certain taxes as administrative expenses. See 11 U.S.C. Sec. 503(b)(1)(B)(i). The source of contention is the uncertainty over the procedure and timing for making an administrative claim upon the Debtor's estate once a case had been converted. Section 503(a) provides that "an entity may file a request for payment of an administrative expense." Section 503(b) also specifies that administrative expenses are allowed "[a]fter notice and a hearing." The bankruptcy statute, however, does not "provide for the time when a request for administrative expenses should be made nor does it provide to whom the request is to be made." 3 Collier on Bankruptcy p 503.01 (15th ed. 1989). Both the House and Senate Judiciary Committee reports on the Bankruptcy Reform Act of 1978 indicate that the Rules of Bankruptcy Procedure would specify the time, the form, and the method of such a filing. H.R.Rep. No. 595, 95th Cong., 1st Sess. 355 (1977); S.Rep. No. 989, 95th Cong., 2d Sess. 66 (1978), U.S.Code Cong. & Admin.News 1978, p. 5787. 6
In contrast to the statutory provisions on "request for payments," section 501 of the Bankruptcy Code provides that a creditor can prove its claim against the debtor by filing a "proof of claim." 7 There are procedural rules for the filing of proofs of claim and forms for such claims. See Bankruptcy Rules 3001-3008 & Official Forms 19-21. Rule 3002, for example, provides that an unsecured creditor must file a proof of claim within ninety days of the meeting of creditors. 8 The proof of claim "bar date" commonly refers to the date that pre-petition creditors must file their claims.
The IRS argues that the bankruptcy court failed to acknowledge the distinction between "request for payments" filed by administrative expense claimants and "proofs of claim" filed by ...
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