Daily Development for Thursday, November 18 2004
by: Patrick A. Randolph, Jr.
Elmer F. Pierson Professor of Law
UMKC School of Law
Of Counsel: Blackwell Sanders Peper Martin Kansas City, Missouri dirt@umkc.edu

BANKRUPTCY; CHAPTER 11;TRANSFER TAXES; SALE PRIOR TO PLAN CONFIRMATION: A sale of real estate assets from a bankruptcy estate prior to plan confirmation qualifies for the exemption from transfer taxes under sec. 1146(c) of the Bankruptcy Code where the sale is integral to a Chapter 11 reorganization plan that is subsequently confirmed.

In re: Beulah Church of God in Christ Jesus, Inc., 316 B.R. 41 (Bankr. S.D. N.Y., Oct. 18, 2004).

In this Chapter 11 bankruptcy case, the debtor, which was owned by a church in Brooklyn, became the owner of (or acquired and interest in) 24 properties in the New York, Kings, Queens and Bronx Counties. The debtor became a participant in a federal loan insurance program known as the "203(k) program," which guaranteed private loans to not-for-profit entities for "rehabilitating housing stock." Unfortunately the program was rife with corruption and abuse by contractors, in concert with brokers and loan originators, and the debtor's mortgage loans from the Residential Funding Corporation ("RFC") went into default.

The debtor, realizing that the properties' values had increased significantly since the mortgages had originally been made, persuaded RFC to support the debtor's plan to sell the properties, which sales the debtor believed would yield sufficient proceeds to satisfy not only the RFC debt, but also pay all or most of the unsecured debt and perhaps even result in some money left over for the church. (According to the court, "assuming a successful sale process, the case was put on track for eventual confirmation of a Chapter 11 plan.")

The debtor filed a motion for authorization to sell 23 of the 24 properties either in bulk or individually at an auction (the mortgage on one of the properties was reinstated). The motion also requested a declaration by the bankruptcy court that the sale would be exempt from any sale or transfer tax under sec. 1146(c). The court entered an order on February 4, 2004 approving the sale, and scheduled the auction sale for April 5, 2004. The City of New York then filed an objection on March 18, 2004, but acknowledged that the sale could proceed if at least the amount of the transfer tax was escrowed in an interest-bearing account. The debtor then filed its proposed Chapter 11 plan, and its disclosure statement, one day before the scheduled court hearing on the City's objection.

The proposed sale did not close because the buyer defaulted, but the debtor immediately found a new buyer who agreed to pay a substantially higher purchase price for a bulk sale of the properties. The debtor again moved the court for approval of the sale, and the court entered an order to this effect. (In a footnote, the court noted that if the debtor had not found a substitute buyer, it would have granted a motion to lift the stay and the case likely would have been converted to a Chapter 7 liquidation.) The debtor renewed its request for a transfer-tax exemption, which issue the court specifically reserved for later determination.

This sale successfully closed on July 30, 2004, which was the day before the extension agreed to by the secured creditors, and the proceeds were more than sufficient to pay off all of RFC's allowed claims. An amount equal to the transfer taxes ($390,000) was placed in escrow pending the court's ruling on the exemption. The court acknowledged that the debtor's plan had not yet been voted on or confirmed, but stated that it "can see no major obstacle . . . to the plan's eventual confirmation now that the results of the sale process are known," and that "the Debtor's Chapter 11 plan provides for the payment of administrative, priority, and general claims in full."

The City of New York argued that the properties were not sold under a "plan confirmed" (as required under sec. 1146(c)), because the sale "was not authorized by, provided for in, and did not occur pursuant to, a confirmed chapter 11 plan." The debtor and RFC, on the other hand, argued that the sale was exempt because it was "integral to plan confirmation, or confirmation occurs because of the sale," i.e., under the correct interpretation of sec. 1146(c) the exemption applies because the sale "is in view of, and/or in accordance with, and subject to, the anticipated confirmation of a chapter 11 plan."

The court noted the split (gulf?) of existing court opinions on this issue (with citations to all the relevant cases on both sides of the issue). The court first addressed the question of statutory interpretation, and determined that both the City's and the debtor's interpretations could apply. The court then focused on the definition of the word "under" in sec. 1146(c), which the court found could encompass many different meanings, including that "the exemption is subject to a condition, which may be a condition subsequent, of plan confirmation, as long as the transfer led to or was in view of a plan that was ultimately confirmed." The court also found that the legislative history of sec. 1146(c) was uninformative and inconclusive, and that "textual analysis" of other provisions of the Bankruptcy Code was unhelpful.

The court distinguished two of the leading cases supporting the City's position, In re NVR, L.P., 189 F.3d 442 (4th Cir. 1999), and In re Hechinger Co. of Del., Inc., 335 F.3d 243 (3d Cir. 2003), finding that they "did not have occasion to consider a situation like the Debtor's, where the sales at issue were specifically pursued in view of a filed plan." The court refused to apply a "bright-line" test, instead preferring a "practical or functional" interpretation of the language "under a plan" in sec. 1146(c).

The court dismissed the City' interpretive argument that tax exemptions should be strictly construed and that federal laws that interfere with state taxation should be narrowly construed, reasoning that such interpretive aids should be "used with caution," and that the Bankruptcy Code's goal of facilitating reorganizations could be harmonized with the policy of narrowly construing tax exemptions.

The court, in ruling that the sale of the debtor's properties was exempt from transfer taxes under sec. 1146(c), summed up its findings as follows:

"Focusing on the role of the particular transfer at issue in enabling the debtor's plan, rather than on a temporal test, recognizes the realities of how distressed businesses are restructured in chapter 11. For example, it is just as likely that a debtor may need to arrange a financing or to close a sale as a condition precedent to the parties' willingness to proceed with plan confirmation as it is for the parties to agree on the terms of a plan, obtain information and then see what the sale of a key asset or a proposed financing will bring."

Reporter’s Comment 1: To the reporter, the court's decision represents a sensible, reasonable, practical -- and correct -- analysis of the issue. Numerous bankruptcy courts have examined the language in § 1146(c), which states that only transfers occurring "under a plan confirmed" are exempt from taxation. Unfortunately, as noted by the court in the Beulah Church case, the court decisions in this area have not been consistent.

Reporter’s Comment 2: Governmental tax authorities have, in some cases (such as In re Hechinger) argued that the property transfer occurred prior to confirmation of the plan and should not be entitled to the § 1146(c) exemption. The issue that has been raised is whether this specific language applies only to a transfer that occurs subsequent to court approval and confirmation of the plan, or whether it can also be construed to apply to a transfer that is part of a bankruptcy plan that has been submitted and is an essential component of the plan confirmation, but is not approved and confirmed by the court until after the transfer of the property. The resolution of this issue is of utmost importance to bankruptcy trustees and debtors in possession because (as noted cogently by the court in In re Beulah church and in the dissent in the Third Circuit's ruling in In re Hechinger) it is often necessary, in order to pay current debts and to fund the Chapter 11 reorganization plan, !
that t
he debtor be able to sell assets as quickly as possible during the course of the bankruptcy proceeding before they begin to lose value. As stated by the bankruptcy court in In re GST Telecom, Inc., 2002 U.S. Dist. LEXIS 18745 (D. Del., July 29, 2002), "Given the reality of business and bankruptcy practice, adopting a rule that requires all bankruptcy transfers to occur post-confirmation would seem to frustrate section 1146(c)'s stated purpose of facilitating reorganization in a large number of cases."

Reporter’s Comment 3: The majority of courts reject the holding of the Fourth Circuit in NVR, and the trend of recent bankruptcy court decisions has been to extend the benefit of the § 1146(c) exemption to sales of real property that occur prior to, but in accordance with, a subsequently confirmed Chapter 11 bankruptcy plan. I agree wholeheartedly with the dissent in In re Hechinger (referred to with approval by the court in the In re Beulah Church). In his vigorous dissent, Judge Nygaard argued that § 1146(c) is ambiguous and that the word "under" should not be narrowly construed to mean only "authorized," i.e., it could be read to mean "in accordance with" in order to apply to both pre-confirmation and post-confirmation transfers. Judge Nygaard further argued (convincingly, in my humble opinion) that the Bankruptcy Code, as a remedial statute, should be liberally construed so as not to impede reorganization and to provide relief to debtors when compelled by business circum!
s to sell assets under a plan ultimately approved by the bankruptcy court.

Reporter’s Comment 4: One commentator has suggested that applying the § 1146(c) exemption to pre-confirmation sales of real estate results in the imposition of an "extra-statutory limitation" that is not contained in § 1146(c), and raises the following questions, none of which are answered by reference to the Bankruptcy Code or existing case law:

"Should the standard be whether the transfer is necessary for confirmation? Or merely helpful? . . . What level of proof is necessary? Who bears the burden of proof? And what evidence is relevant?" Karen Cordry, The Incredible Expanding § 1146(c), 21 ABI J. 10, 48 (2003).

Reporter’s Comment 5: A potential problem also could arise when a pre-confirmation sale has occurred and no transfer tax has been paid because the plan-confirmation order or sale order provided that the transfer was subject to the § 1146(c) exemption. If the reorganization plan is ultimately withdrawn, dismissed or otherwise not confirmed by the bankruptcy court (or the case is converted to a Chapter 7 liquidation proceeding), the only remedy for the taxing authority may be to bring an action to attempt to recoup the unpaid transfer tax (together with applicable interest and penalties). But the bringing of such an action could be impractical, expensive and time-consuming.

The court in In re Beulah Church noted, in a footnote, that in recent years courts have attempted to deal with this issue by requiring the debtor to escrow an amount at least equal to the disputed taxes, pending plan confirmation. The bankruptcy reorganization plan, or the bankruptcy court order approving the plan or the transfer of real property, should specifically provide that an amount equal to the transfer tax otherwise imposed on the transfer be escrowed with the court or a third party (such as a bank or title insurance company). For example, in In re 310 Assocs., L.P., 282 B.R. 295, 298 (S.D.N.Y. 2002), the bankruptcy court's order approving the transfer agreement between the debtor and the purchaser provided as follows:

". . . As soon as practicable after the Closing, the Debtor shall be, and hereby is, authorized to deposit in a separate, interest bearing escrow account, monies from the Account (as defined hereinbelow [sic], earmarked "310 Associates, L.P. - City 1146(c) taxes," the sum of $100,000, or such other amount as may be necessary (the "Escrowed Funds") to pay any City real property transfer tax or any other applicable City stamp or similar tax, and any potential interest and or penalties thereon that may be due on the recordation of any documents or instruments reflecting the sale of the Assets subject to this Order."

. . . .

. . . If a Plan of Reorganization in this case ultimately is not confirmed, the City may apply to this Court for appropriate relief, and this Order is without prejudice to the right of the City in such eventuality."

One commentator has noted that, with respect to Chapter 11 bankruptcy proceedings filed in Delaware involving transfers of real property:

"Delaware courts have begun requiring the debtor to escrow funds sufficient to pay the taxes as a condition of allowing such sales to be treated as exempt. But this 'solution' raises as many questions as it answers. Who should hold such an escrow? Is the government entitled to interest on the taxes withheld? Can the debtor treat the escrow as cash collateral and use it if it provides adequate protection? The Code, of course, has no answers or insights on these issues." Karen Cordry, The Incredible Expanding § 1146(c), 21 ABI J. 10, 48 (2003).

Reporter’s Comment 6: About a year ago I authored an article in the ABA's Real Property, Probate and Trust Journal on transfer-tax issues in bankruptcy cases, in which I discuss in detail the issue of pre-confirmation v. post confirmation transfers (including the relevant case law in this area), as well as issues such as the scope of the sec. 1146(c) exemption, constitutional challenges to the exemption under the doctrine of sovereign immunity, and practical considerations (including the escrow of contested funds with a title insurer). The article also includes sample language addressing these issues to include in Chapter 11 bankruptcy orders and plans. (The sec. 1146(c) exemption only applies with respect to Chapter 11 bankruptcy plans.) See John C. Murray, "Transfer-Tax Considerations in Real Estate Bankruptcy Proceedings," 38 Real Prop. Prob. & Tr. J. 377 (Summer 2003).

The Reporter for this item is Jack Murray of First American Title Insurance Company.

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