In re Lettieri

506 B.R. 208, 2014 WL 904484, 2014 Bankr. LEXIS 785
CourtUnited States Bankruptcy Court, W.D. New York
DecidedFebruary 14, 2014
DocketNo. 08-12443 B
StatusPublished
Cited by2 cases

This text of 506 B.R. 208 (In re Lettieri) is published on Counsel Stack Legal Research, covering United States Bankruptcy Court, W.D. New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re Lettieri, 506 B.R. 208, 2014 WL 904484, 2014 Bankr. LEXIS 785 (N.Y. 2014).

Opinion

DECISION & ORDER

CARL L. BUCKI, Chief Judge.

The central issue of this dispute is whether the bankruptcy estate must reimburse the debtors for the amount that they advanced to satisfy a priority claim for non-dischargeable taxes.

On June 3, 2008, Mark and Susan Letti-eri filed a joint petition for relief under Chapter 7 of the Bankruptcy Code. In schedules filed with that petition, Mr. and Mrs. Lettieri acknowledged their liability for' sales and withholding taxes owed to New York State. All of these obligations are the kind of taxes described in 11 U.S.C. § 507(a)(8)(C) as “a tax required to be collected or withheld and for which the debtor is liable in whatever capacity.” Accordingly, these trust fund taxes are priority claims under section 507(a)(8). [210]*210Further, .by reason of the exceptions to discharge in 11 U.S.C. § 523(a)(1)(A), these taxes would remain an obligation of the debtors even after entry of an order of discharge.

Due to the complexities of this case, no order of discharge was entered until May 24, 2010. Pursuant to 11 U.S.C. § 362(c)(2)(C), the discharge operated to lift the automatic stay with respect to efforts by the state to collect any non-dis-chargeable taxes from assets other than property of the bankruptcy estate. Consequently, the State of New York renewed its collection activity and obtained a promise from the debtors to make periodic payments on account of their surviving tax liabilities. Meanwhile, the Chapter 7 trustee continued his administration. Upon completing a liquidation of estate assets, the trustee filed an initial final report on November 1, 2012. Despite their receipt of notice of a hearing on the trustee’s report, neither the debtor nor any creditor objected. After the court approved the outstanding applications for fees and allowances, the trustee promptly distributed all available cash to creditors. These distributions included two payments to the New York State Department of Taxation and Finance: a payment of $2,222.32 on account of a priority claim filed on March 12, 2009; and a payment of $21,503.96 on account of the priority portion of an amended claim filed on January 25, 2010.

Upon receiving distributions from the trustee, the Department of Taxation and Finance reviewed its outstanding claims. Based on that review, the Department withdrew its claim for $2,222.32 on January 7, 2013, and returned that payment to the trustee. Then by letter dated March 1, 2013, the Department advised that the outstanding balance due on the state’s other claim was overpaid in the further amount of $17,069.50. Accordingly, this latter amount was also returned to the trustee. Now in receipt of funds in the amount of $19,291.82, the trustee has filed a supplemental report which proposes that these returned moneys be distributed pro rata among unsecured creditors. In response, Mark and Susan Lettieri have filed a timely objection only with regard to the trustee’s recommendation to redistribute the second overpayment of $17,069.50.

After receiving a discharge in bankruptcy, Mr. and Mrs. Lettieri negotiated a settlement of their non-dischargeable obligation to the State of New York. They assert that pursuant to that arrangement, the State abated or otherwise waived liabilities in the amount of $6,247.05. Then through periodic payments made prior to the trustee’s final report, the Lettieris paid $10,822.45 to the Department of Taxation and Finance. Together, the abatement and payments total $17,069.50, that is, the amount that the State returned to the trustee on March 1, 2013. Asserting that the reimbursement resulted from their efforts and payment, Mark and Susan Letti-eri have moved to disallow the supplemental report of distribution and to compel the trustee to remit to them the said sum of $17,069.50. For the reasons stated hereafter, the debtor’s request is denied.

The Bankruptcy Code precisely mandates the order and priority of distribution of estate assets. Pursuant to 11 U.S.C. § 726(a)(6), a debtor will receive the remainder of estate property only after payment of all creditors, including both priority creditors and those with unsecured claims. In order to receive a distribution of anything other than that remainder, a debtor must somehow stand in the shoes of a valid creditor, either by assignment or by subrogation. Mr. and Mrs. Lettieri make no claim that they have taken an assignment of any priority claim. Rather, any right to payment from other [211]*211than surplus can only accrue if the debtors are somehow subrogated to the rights of New York State.

The abatement of tax liability creates no entitlement to subrogation. Section 521 of the Bankruptcy Code defines the duties of a debtor. These include the obligation to “cooperate with the trustee as necessary to enable the trustee to perform the trustee’s duties under [Title 11].” 11 U.S.C. § 521(a)(3). In then setting the responsibilities of a trustee, 11 U.S.C. § 704(a)(5) provides that the trustee shall “if a purpose would be served, examine proofs of claims and object to the allowance of any claim that is improper.” By negotiating an abatement of tax liabilities, Mark and Susan Lettieri fulfilled their statutory obligation to cooperate with the trustee in resolving claims. For this, they deserve no special reward. Rather, the abatement should inure to the benefit of the bankruptcy estate. Accordingly, we reject the claim for the amount of tax abatement and will limit the interest of Mr. and Mrs. Lettieri to rights, if any, that might derive from their payment of moneys to the State of New York.

As a general rule, codebtors may assert a claim for subrogation in bankruptcy. Section 509(a) of the Bankruptcy Code states that except as otherwise provided, “an entity that is liable with the debtor on, or that has secured, a claim of a creditor against the debtor, and that pays such claim, is subrogated to the rights of such creditor to the extent of such payment.” With regard to tax and certain other priority claims, the subrogated entity “is not subrogated to the right of the holder of such claim to priority.” 11 U.S.C. § 507(d). Even as so limited, however, subrogation is a right that section 509(a) grants not to the debtors, but only to a paying co-obligor. As the debtors in this bankruptcy case, Mark and Susan Lettieri cannot rely upon any right to subrogation pursuant to section 509(a), but must establish some other basis for relief.

Although section 509 of the Bankruptcy Code may not expressly grant any right of subrogation to the debtors themselves, the statute does not necessarily preclude this outcome in equity. Equitable subrogation, however, is a right granted only to someone who pays an obligation for which he or she is not primarily liable. 73 Am. JuR. 2d Subrogation § 19 (2012). The New York Court of Appeals summarized the applicable standard in its decision in Gerseta Corp. v. Equitable Trust Co. of N.Y., 241 N.Y. 418, 425-26, 150 N.E. 501 (1926):

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Cite This Page — Counsel Stack

Bluebook (online)
506 B.R. 208, 2014 WL 904484, 2014 Bankr. LEXIS 785, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-lettieri-nywb-2014.