In re Bailey

D. Rhode Island

In re Bailey

234 B.R. 7, 1999 Bankr. LEXIS 623, 83 A.F.T.R.2d (RIA) 2882, 1999 WL 342793

CourtUnited States Bankruptcy Court, D. Rhode Island

DecidedMay 19, 1999

DocketBankruptcy No. 98-14475

StatusPublished

This text of 234 B.R. 7 (In re Bailey) is published on Counsel Stack Legal Research, covering United States Bankruptcy Court, D. Rhode Island primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

In re Bailey, 234 B.R. 7, 1999 Bankr. LEXIS 623, 83 A.F.T.R.2d (RIA) 2882, 1999 WL 342793 (R.I. 1999).

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Opinion

ORDER

RICHARD N. VOTOLATO, Bankruptcy Judge.

Before the Court is the Trustee’s Application to compromise a controversy with the Debtor, who owns a home at 299 Church Avenue, Warwick, Rhode Island. The property, recently appraised at $68,-000, is subject to a first mortgage of $41,-614, leaving equity of approximately $26,-000. It is estimated that after a Trustee’s sale and payment of a broker’s fee, trustee’s commission, and debtor’s exemption, there would be net proceeds of $7,801 for the estate.

The Trustee poses the question whether the estate would be liable for the capital gains tax on the Debtor’s residence, or whether the estate would be entitled to the exclusion available to the Debtor under the Internal Revenue Code. If the estate is liable for the capital gains tax, there would be no funds remaining after the sale for distribution to unsecured creditors. The Debtor has offered to pay $7,000 for the Trustee’s interest in the property.

Given the relatively insignificant difference between the Trustee’s “best case scenario” ($7,801) and the compromise offer ($7,000), we will approve the Application to Compromise, for reasons of economy only.

However, as guidance to Trustees and to the bankruptcy bar generally, and although nobody has asked us to rule on the question, we will do so anyway and state that this Court would follow In re Popa, 218 B.R. 420 (Bankr.N.D.Ill.1998), and hold that the trustee is entitled, on behalf of the estate, to the same capital gains exclusion available to the debtor, upon the sale of property which is the debtor’s primary residence. See also In re Godwin, 230 B.R. 341 (Bankr.S.D.Ohio 1999); In re Bradley, 222 B.R. 313 (Bankr.M.D.Tenn.1998).

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ORDER

RICHARD N. VOTOLATO, Bankruptcy Judge.

Before the Court is the Trustee’s Application to compromise a controversy with the Debtor, who owns a home at 299 Church Avenue, Warwick, Rhode Island. The property, recently appraised at $68,-000, is subject to a first mortgage of $41,-614, leaving equity of approximately $26,-000. It is estimated that after a Trustee’s sale and payment of a broker’s fee, trustee’s commission, and debtor’s exemption, there would be net proceeds of $7,801 for the estate.

The Trustee poses the question whether the estate would be liable for the capital gains tax on the Debtor’s residence, or whether the estate would be entitled to the exclusion available to the Debtor under the Internal Revenue Code. If the estate is liable for the capital gains tax, there would be no funds remaining after the sale for distribution to unsecured creditors. The Debtor has offered to pay $7,000 for the Trustee’s interest in the property.

Given the relatively insignificant difference between the Trustee’s “best case scenario” ($7,801) and the compromise offer ($7,000), we will approve the Application to Compromise, for reasons of economy only.

However, as guidance to Trustees and to the bankruptcy bar generally, and although nobody has asked us to rule on the question, we will do so anyway and state that this Court would follow In re Popa, 218 B.R. 420 (Bankr.N.D.Ill.1998), and hold that the trustee is entitled, on behalf of the estate, to the same capital gains exclusion available to the debtor, upon the sale of property which is the debtor’s primary residence. See also In re Godwin, 230 B.R. 341 (Bankr.S.D.Ohio 1999); In re Bradley, 222 B.R. 313 (Bankr.M.D.Tenn.1998).

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Bluebook (online)

234 B.R. 7, 1999 Bankr. LEXIS 623, 83 A.F.T.R.2d (RIA) 2882, 1999 WL 342793, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-bailey-rib-1999.

Opinion

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