Anderson v. Baer (In Re Anderson)

275 B.R. 922, 48 Collier Bankr. Cas. 2d 1362, 2002 Bankr. LEXIS 431, 89 A.F.T.R.2d (RIA) 2401, 2002 WL 561680

• Court: Bankruptcy Appellate Panel of the Tenth Circuit
• Decided: April 16, 2002
• Docket: BAP Nos. KS-01-067, KS-01-069. Bankruptcy No. 99-40093
• Status: Published

Opinions

OPINION

CORNISH, Bankruptcy Judge.

This is an appeal from an order of the bankruptcy court approving the trustee’s final report. In the order, the bankruptcy court concluded that the trustee had “commence[d] distribution” prior to the claims filed by the taxing authorities. The debtor and the Missouri Department of Revenue (“MDOR”) argue that the trustee had not commenced distribution at the time the final report was filed with the court, and therefore, the claims filed by the taxing authorities qualified for distribution under § 726(a)(1)². For the reasons set forth below, we reverse the decision of the bankruptcy court.

BACKGROUND

The debtor filed bankruptcy on January 5, 1999. MDOR was not listed on the bankruptcy schedules or the mailing matrix. The Internal Revenue Service (“IRS”) and the Kansas Department of Revenue (“KDOR”) were listed on the debtor’s schedules; however, KDOR was not listed on the mailing matrix, and the address for the IRS was in St. Louis, Missouri rather than the Kansas address set forth in the standing order. The notice, which was sent to creditors on the matrix, stated that no assets appeared to be available fróm which to pay unsecured creditors. Creditors were advised not to file proofs of claim until they received directions to do so. On December 21, 1999, the trustee filed a Notice of Recovery of Assets, which requested that the Clerk renotice the case and set a deadline for filing claims. On December 22, 1999, an order was entered fixing the deadline for filing claims for governmental units as June 29, 2000. No tax claims were filed by this date. Neither the trustee nor the debtor filed proofs of claim for the taxing authorities. The final report was filed on November 3, 2000. The Clerk’s Notice set December 12, 2000, as the last day for filing objections, and if any objection was filed, a hearing would be held on January 25, 2001. The only objection was filed by the debtor stating that priority tax claims existed for IRS, KDOR, and MDOR, which had not been filed.

MDOR filed its proof of claim on December 4, 2000. On December 15, 2000, KDOR filed its proof of claim. On April 3, 2001, KDOR amended its proof of claim. Lastly, on April 19, 2001, the IRS filed its proof of claim.

On February 16, 2001, the court entered its order authorizing distribution of fees and expenses. In the order, the court noted that MDOR was not scheduled as a creditor; however, KDOR was listed as a creditor and did have sufficient notice to timely file a claim. The court held that, pursuant to § 726, the date on which the trustee commences distribution is the date of the filing of the final report and intended distribution. That date was November 20, 2000. The debtor filed a motion to reconsider or vacate the court’s order. On March 26, 2001, the MDOR filed its concurrence to debtor’s motion to reconsider or vacate.

On August 14, 2001, the court entered its order regarding the motion to reconsider order approving trustee’s final report. In its order, the court realized that KDOR was not on the mailing matrix and therefore, would not have received any of the notices. The court noted, however, that the IRS was included on the mailing matrix and was sent all notices in the case. The court once again concluded that the term “commences distribution” under § 726(a)(1) was the time the trustee filed his initial version of the final report with the court. This appeal followed.

JURISDICTION AND STANDARD OF REVIEW

The Bankruptcy Appellate Panel (“BAP”) has jurisdiction to hear appeals from final judgments, orders and decrees of bankruptcy judges within this circuit. 28 U.S.C. § 158 (1994). Because no party has opted to have this appeal heard by the district court for the District of Kansas, the parties are deemed to have consented to the jurisdiction of the BAP. 10th Cir. BAP L.R. 8001-l(a). The BAP may affirm, modify, or reverse a bankruptcy court’s judgment, order, or decree or remand with instructions for further proceedings. Fed. R. Bankr.P. 8013. “[Decisions by judges are traditionally divided into three categories, denominated questions of law (reviewable de novo), questions of fact (reviewable for clear error), and matters of discretion (reviewable for ‘abuse of discretion’).” Pierce v. Underwood, 487 U.S. 552, 558, 108 S.Ct. 2541, 101 L.Ed.2d 490 (1988). The bankruptcy court’s interpretation of a statute is a question of law subject to de novo review. In re Gledhill, 164 F.3d 1338, 1340 (10th Cir.1999).

DISCUSSION

The pivotal issue here is the interpretation of the term “commences distribution” in 11 U.S.C. § 726(a)(1). Prior to the enactment of the Bankruptcy Reform Act of 1994, there was disagreement among courts as to distribution of tardily filed priority claims. 6 Collier on Bankruptcy ¶ 726,LH[3] (Lawrence P. King ed., 15th ed. rev.2001) (collecting cases). The Bankruptcy Reform Act of 1994 added the following language to § 726(a)(1): “proof of which is timely filed under section 501 of this title or tardily filed before the date on which the trustee commences distribution under this section.” Bankruptcy Reform Act of 1994, Pub.L. No. 103-394, § 213(b), 108 Stat. 4106, 4126 (1994), quoted in In re Wilson, 190 B.R. 860, 861 (Bankr.E.D.Mo.1996). The amendment to § 726(a)(1) resolved the issue for cases filed after October 22, 1994. Id. § 720, 108 Stat. at 4150-51; see Wilson, 190 B.R. at 861. If a priority claim is tardily filed before the chapter 7 trustee commences distribution, it is given the same treatment as if it were timely filed. Wilson, 190 B.R. at 861. However, the term “commences distribution” is not defined in the Bankruptcy Code.

Section 726(a) provides, in pertinent part, as follows:

(a) Except as provided in section 510 of this title, property of the estate shall be distributed—

(1) first, in payment of claims of the kind specified in, and in the order specified in, section 507 of this title, proof of which is timely filed under section 501 of this title or tardily filed before the date on which the trustee commences distribution under this section;

(2) second, in payment of any allowed unsecured claim, other than a claim of a kind specified in paragraph (1), (3), or (4) of this subsection, proof of which is—

(A) timely filed under section 501(a) of this title;

(B) timely filed under section 501(b) or 501(c) of this title; or

(C) tardily filed under section 501(a) of this title, if—

(i) the creditor that holds such claim did not have notice or actual knowledge of the case in time for timely filing of a proof of claim under section 501(a) of this title; and

(ii) proof of such claim is filed in time to permit payment of such claim.

11 U.S.C. § 726(a) (emphasis added).

We must begin with the language of the statute itself. United States v. Ron Pair Enters., Inc., 489 U.S. 235, 241, 109 S.Ct. 1026, 103 L.Ed.2d 290 (1989). If Congress does not define the statutory term, its common, ordinary usage may be obtained by reference to a dictionary. United States v. Roberts, 88 F.3d 872, 877 (10th Cir.1996) (per curiam). When interpreting a statute, the statutory language is examined. Dalton v. Internal Revenue Service, ’ll F.3d 1297, 1299 (10th Cir.1996). The language is given its common meaning, provided that the result is not obscure or contrary to legislative purpose. Id. However, the court must look to the whole law, not just a single sentence or a member of the sentence. Id. According to the dictionary, “commence” is defined as “to have or make a beginning; start.” Merriam Webster’s Collegiate Dictionary 230 (10th ed.1993). “Distribution” is defined as “the act or process of distributing.” Id. at 338. “Distribute” is defined as “to divide among several or many, apportion.” Id.

The court in Wilson was faced with the decision of at what point does a chapter 7 trustee commence distribution. 190 B.R. at 862. In Wilson, the MDOR filed a proof of claim, asserting a priority claim, after the filing of the trustee’s final report and notice of the final report. The MDOR asserted that the date the trustee “commences distribution” is the date on which the trustee actually mails the checks. Id. The chapter 7 trustee and the United States Trustee argued that for policy reasons, the date the trustee “commences distribution” is the date on which the United States Trustee filed the approved final report and proposed distribution with the bankruptcy court. Id. The court held:

[T]he date on which the trustee commences distribution under § 726(a)(1) is the date of Court approval of the final report and accounting.

Although the Trustee’s interpretation of “commences” may be correct, the language must be read in its entirety, namely “commences distribution.” Undoubtedly, the Trustee commenced the process of distribution when he submitted the Final Report to the UST for its approval. But the Final Report was only a proposal when it was lodged with the UST; when the UST reviewed and audited it; and remained a proposal when the UST filed it with the Court. Indeed, a twenty (20) day objection period for creditors was provided in the Notice. It is only after the Court resolves any objections to the Trustee’s Final Report and signs the order approving the report that the proposed distribution becomes the approved distribution.

Id. (footnote omitted) (emphasis in original).

The court further noted that if the date on which the trustee “commences distribution” is the date of filing the final report, a hearing on the approval of the proposed distribution would be rendered nugatory. Id. The court also acknowledged the court’s important role in resolving any disputes with the proposed distribution. Id.

The issue of when the trustee “commences distribution” arose in In re Van Gerpen, 267 F.3d 453 (5th Cir.2001). In the Van Gerpen case, the trustee retained a law firm to perform legal services. Id. at 454. The law firm filed an application for interim compensation, which was approved by the bankruptcy court and paid by the trustee. Id. at 455. The debtor filed two proofs of claim on behalf of the IRS approximately six months after the bar date. Id. The IRS then submitted a further claim. The majority of the IRS’s claims were entitled to priority status. Id. Another creditor of Van Gerpen, a bank, objected to the IRS’s claims, alleging that they were untimely because they were filed after the bar date, and the trustee had already commenced distribution at the time he made the interim payments. Id. Thus, the bank asserted the claims were not eligible for priority status. Id. The IRS argued that the claims were entitled to priority status because they were filed prior to the trustee commencing distribution of the estate.

The bank’s argument in Van Gerpen centered on the interpretation of the dictionary definitions of “commences” and “distribution” to mean “the first act of giving out money of the estate.” Id. at 456. The court noted:

In bankruptcy law the term “distribution” carries a particular meaning, to the extent that it borders on being a term of art. A well-known treatise on bankruptcy law notes that “[n]ormally the distribution [of a bankrupt estate] is carried out by the Chapter 7 trustee, after the trustee has reduced the estate to cash by liquidating the debtor’s nonexempt assets.”

Id. (quoting 6 Collier on Bankruptcy ¶ 726.01, at 726-5 (Lawrence P. King ed., 15th ed. rev.2000)). The Van Gerpen court held that the appropriate interpretation of “commences distribution” is the date when a bankruptcy court approves the trustee’s final report, thus allowing the trustee to commence final distribution of the estate. Id. at 457.

Because “commences distribution” is not defined in the Bankruptcy Code and the language in § 726(a)(1) is unambiguous, the plain meaning of the term should be used. After a review of the definition of “commence” and “distribution,” we find that the appropriate time would be the time at which the bankruptcy court approves the final report. Up until that time, distribution is “proposed.” The trustee, in his final report, states “that he has examined all claims filed in the case, and that the proposed distribution ... is proper.” (Appellant’s Appendix at 64) (emphasis added). After the filing of the trustee’s final report, parties in interest are given a time in which to object, and therefore, distribution could change.

The trustee argues that if the time the trustee “commences distribution” is the date on which the final report is approved, the language in § 726(a)(2)(C) “in time to permit payment” would be rendered meaningless. However, there would inherently be time between the court’s approval of the final report and the time that the trustee issues checks. Thus, the language of § 726(a)(2)(C) would not be meaningless.

CONCLUSION

For the reasons set forth above, “commences distribution” under § 726(a)(1) is the date the trustee’s final report is approved by the court. Therefore, the decision of the bankruptcy court is reversed.

2 . All statutory references are to Title 11 of the United States Code unless otherwise stated.