Order denying USA’s motion for summary judgment on the issue of dischargeability of taxes under section 523(a)(1)(B) and rejecting the IRS position that a late-filed tax return does not qualify as a “return” for purpose of clause (i) of this section. The Court concluded that a late-filed tax return may qualify as a “return” for purposes of section 523(a)(1)(B)(i) if it satisfies the four prong test of Beard v. Commissioner, 793 F.2d 139 (6th Cir. 1986).
NOT INTENDED FOR PUBLICATION
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Honorable Paul W. Bonapfel
Court grants motion to compel Defendants in adversary proceeding to execute Form 4506 to request Internal Revenue Service to furnish copies of returns for relevant years in which amount Defendants paid as rent is at issue.
Court dismisses third involuntary petition against individual, enjoins petitioning creditors from filing future involuntary petitions against alleged debtor, grants prospective in rem relief from stay with regard to condominium unit, and retains jurisdiction to permit investigation by U.S. Attorney and U.S. Trustee.
The financial advisor to the Committee of Equity Security Holders is entitled to a "Completion Fee," calculated as a percentage of a "Shareholder Recovery" under the terms of its engagement that the Court approved pursuant to 11 U.S.C. § 328(a). The confirmed plan provides for a cancellation of existing shares and for shareholders to receive beneficial interests in a Liquidation Trust, from which they receive cash payments funded from the net proceeds of liquidation of the Debtor's assets. Because "Shareholder Recovery" is defined by consideration that is distributed to shareholders, the Shareholder Recovery is properly determined by reference to the cash the shareholders actually receive, i.e., that is distributed to them, not the preconfirmation average share price of the publicly traded shares.
NOT INTENDED FOR PUBLICATION
Former Chapter 13 debtors are entitled to unclaimed funds where creditor and debtor have postbankruptcy payment arrangement that is current, creditor did not take unclaimed funds into account in determining amount of debt, and creditor does not appear at hearing to show basis for distribution of funds to creditor.
NOT INTENDED FOR PUBLICATION
In an earlier chapter 11 case of a corporation, its principal formed a new corporation that acquired the claim of a bank secured by substantially all of the corporation’s assets. After dismissal of the corporation’s chapter 11 case, the new corporation accepted all of the old corporation’s assets in full satisfaction of the secured debt. The value of the assets was substantially less than the amount of the secured debt. In the current chapter 11 case of the new corporation, the landlord of the old corporation filed a claim for rent due under a lease rejected in the old corporation’s case on the ground of successor liability under Georgia law. Noting that the landlord had no effective remedy against the assets of the old corporation in view of the fact that the secured debt substantially exceeded the value of the assets, the court concluded that successor liability did not apply in the circumstances of this case.
Order denying creditor’s ex parte motion for order confirming bankruptcy petition does not operate as stay of writ of possession to evict post-foreclosure tenant at sufferance. Section 362(b)(22)’s exception to the automatic stay applies only to a landlord-tenant relationship and, therefore, is not applicable to facts of case. Creditor may file motion for relief from stay, subject to notice and hearing.
NOT INTENDED FOR PUBLICATION
Debtors who live in Atlanta Division filed case in Rome Division and moved for an order retaining the case in the Rome Division. BLR 1017-1(b) requires filing in proper division, and it is improper to file the case in the wrong division. The judge assigned to the case in the proper division should consider a transfer motion. Court orders transfer of case to Atlanta Division.
Debtors who live in Newnan Division filed case in Rome Division and moved for an order retaining the case in the Rome Division. BLR 1017-1(b) requires filing in proper division, and it is improper to file the case in the wrong division. The judge assigned to the case in the proper division should consider the transfer motion. Because transfer to the Newnan Division could result in adminsitrative burdens, however, the Court exercises its discretion to retain the case in the Rome Division. The Court notes that, in the future, it will order the transfer of an improperly filed case to the proper division and consider the imposition of sanctions. A party who wants to transfer a case to another division should promptly request transfer and request expedited consideration to avoid administrative burdens.
Automatic stay of 11 USC s 362(a) applies to garnishment action in its entirety, including any independent claim of the garnishing creditor against the garnishee based on the garnishee's failure to comply with garnishment summons, unless unmodifiable judgment against garnishee has been entered prior to filing of the case. Because the case was filed before the time for the fiilng of the answer to the garnishment summons, the garnishee is not in default. Because it is now undisputed that the garnishee employee failed to withhold prepetition wages from the debtor-employee, the stay is properly modified to permit creditor to pursue employer for failure to withhold wages because the claim does not involve the debtor, the debtor's property, or property of the estate. The debtor has no property interest that he can exempt and therefore cannot avoid the garnishment lien under 11 USC s 522(f) to the extent that the creditor seeks to enforce its claim against the employer.