In re Curry

93 A.L.R. Fed. 2d 707, 493 B.R. 447, 2013 WL 2190087, 2013 Bankr. LEXIS 2086
CourtUnited States Bankruptcy Court, D. New Jersey
DecidedMay 21, 2013
DocketNo. 12-26201
StatusPublished
Cited by5 cases

This text of 93 A.L.R. Fed. 2d 707 (In re Curry) is published on Counsel Stack Legal Research, covering United States Bankruptcy Court, D. New Jersey primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re Curry, 93 A.L.R. Fed. 2d 707, 493 B.R. 447, 2013 WL 2190087, 2013 Bankr. LEXIS 2086 (N.J. 2013).

Opinion

OPINION

NOVALYN L. WINFIELD, Bankruptcy Judge.

This matter is before the court for determination of whether the purchaser of a tax sale certificate holds a “tax claim” pursuant to § 511 of the Bankruptcy Code. As set forth below, the court concludes that a purchaser of a tax sale certificate holds a tax claim and is entitled to the interest rate on that claim as provided under applicable nonbankruptcy law.

JURISDICTION

This court has jurisdiction to consider this matter pursuant to 28 U.S.C. §§ 1334 and 157(a) and the Standing Order of Reference issued by the United States District Court for the District of New Jersey on September 18, 2012. This matter is a core proceeding under 28 U.S.C. § 157(b)(2)(A) and (B).

BACKGROUND

Beverly Curry (“Debtor”) filed a voluntary Chapter 13 petition on June 26, 2012 (the “Petition Date”). The Debtor owns real property located at 26 Prospect Street, Morristown, New Jersey (the “Property”) as a tenant in common with her sister.

On June 16, 2010, the Tax Collector for the town of Morristown (the “Morristown Tax Collector” or “Tax Collector”) conducted a tax sale pursuant to N.J.S.A. §§ 54:5-19 et seq., to collect unpaid taxes and sewer charges that accrued on the Debtor’s Property in 2009. Delores Portis (“Ms. Portis”) was the successful bidder, acquiring a tax sale certificate by (i) paying the 2009 taxes and sewer charges totaling $12,074.55, (ii) paying the Tax Collector a bid premium of $6,800.00, and (iii) agreeing to a zero percent interest rate on the tax sale certificate.1 Thereafter, Ms. Portis paid all subsequent tax and sewer charges for the Property in 2010, 2011, and through June of 2012.

Ms. Portis filed a secured proof of claim in the Debtor’s Chapter 13 case in the amount of $43,553.27 (“Claim No. 8”), citing “unpaid delinquent taxes” as a basis for the claim and asserting an interest rate of 18%. Appended to Claim No. 8 are various receipts for the taxes and sewer charges Ms. Portis paid in 2010, 2011 and 2012. Also attached is the Tax Sale Certificate and the receipt for its purchase. Claim No. 8 was thereafter amended to state a secured claim of $50,323.27, also with an interest rate of 18% (“Claim No. [449]*4499”). Unfortunately, no documentation was attached to Claim No. 9, and, as such, the basis for the increased claim is unknown.

The Debtor’s initial Chapter 13 Plan did not provide for Ms. Portis’s claim. The Debtor’s amended Chapter 13 Plan (the “Amended Plan”) proposes to pay the claim in the amount of $43,400.28 at an interest rate of 4.25% (comprised of 3.25% prime rate +1%). The Debtor’s interest rate calculation reflects the Debtor’s view of the applicable market rate of interest. Ms. Portis objects to the Amended Plan on the basis that she is the holder of a “tax claim” within the scope of § 511 and that an interest rate of 18% applies to her claim.

DISCUSSION

Congress enacted Bankruptcy Code (“Code”) § 511 as part of the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 (“BAPCPA”). Pertinent to the matter at hand, § 511(a) provides:

If any provision of this title requires the payment of interest on a tax claim or on an administrative expense tax, or the payment of interest to enable a creditor to receive the present value of the allowed amount of a tax claim, the rate of interest shall be the rate determined under applicable nonbankruptcy law.

11 U.S.C. § 511(a).

The House Report that accompanied BAPCPA explained the need for § 511(a) as follows:

Under current law, there is no uniform rate of interest applicable to tax claims. As a result, varying standards have been used to determine the applicable rate. Section 704 of the Act amends the Bankruptcy Code to add section 511 for the purpose of simplifying the interest rate calculation. It provides that for all tax claims (federal, state, and local), including administrative expense taxes, the interest rate shall be determined in accordance with applicable nonbankruptcy law.

H.R. Report No. 109-31 at 101 (2005).

Unfortunately the Code does not define the term “tax claim” in either § 511 or in § 101. It is evident from reading both the House Report and the statute that a governmental unit seeking payment of unpaid taxes is entitled to an interest rate determined under nonbankruptcy law. “What is not immediately clear from the statute is whether a third-party creditor who pays the debtor’s taxes continues to hold a ‘tax claim.’ ” In re Kizzee-Jordan, 626 F.3d 239, 243 (5th Cir.2010).

There is divergent authority in the District of New Jersey as to whether the purchaser of a tax sale certificate holds a “tax claim” under § 511 of the Code. One approach holds that upon the purchase of a tax sale certificate, the municipality’s tax claim is satisfied and extinguished. In re Princeton Office Park, L.P., 423 B.R. 795, 804-06 (Bankr.D.N.J.2010); In re Burch, No. 10-11360, 2010 WL 2889520, *2-4 (Bankr.D.N.J. July 15, 2010). As a result, the tax sale certificate holder who has paid the municipality does not hold a tax claim, but rather has the right to be reimbursed for the monies paid on behalf of property owner, which right is secured by a lien on the property. In re Princeton Office Park, 423 B.R. at 804; In re Burch, 2010 WL 2889520, at *5.

The other approach does not find that a tax claim is satisfied and extinguished by a third party’s payment of the taxes. Rather, the only change is the party to whom the taxes are owed. See In re Kopec, 473 B.R. 597, 599 (Bankr.D.N.J.2012). Further, this approach places significance on Congress’ use of the term “creditor” in § 511 rather than the term “governmental [450]*450units” used in other Code sections, demonstrating a legislative intent that the term “tax claim” “was intended to be broader than a debt owed to a taxing authority for unpaid taxes, and thus can encompass a third-party holder of a tax sale certifícate.” Id. at 600. This court finds the approach taken in In re Kopec more persuasive than that adopted in In re Princeton Office Park and In re Burch.

As a preliminary matter, the court finds that it is appropriate to give significant weight to the fact that in requiring that the interest payable on a tax be calculated at a rate determined by nonbankruptcy law, Congress conferred this benefit on creditors rather than solely governmental units. Both the term “creditor” and the term “governmental unit” are defined in the Code.2 Congress certainly must be presumed to know the Code definition of both terms, and to have intended the breadth of the statute by its choice of terms. Congress could have met the goals for enactment of § 511 by limiting its reach to the various governmental entities described in § 101(27).

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In Re Princeton Office Park v. Plymouth Park Tax Services (069521)
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Thomas v. City of Philadelphia (In re Thomas)
497 B.R. 188 (E.D. Pennsylvania, 2013)

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Bluebook (online)
93 A.L.R. Fed. 2d 707, 493 B.R. 447, 2013 WL 2190087, 2013 Bankr. LEXIS 2086, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-curry-njb-2013.