In re McMahon Family Ltd. Partnership

495 B.R. 411, 2013 Bankr. LEXIS 2771, 58 Bankr. Ct. Dec. (CRR) 51, 2013 WL 3476146
CourtUnited States Bankruptcy Court, E.D. Wisconsin
DecidedJuly 10, 2013
DocketNo. 12-37314-svk
StatusPublished

This text of 495 B.R. 411 (In re McMahon Family Ltd. Partnership) is published on Counsel Stack Legal Research, covering United States Bankruptcy Court, E.D. Wisconsin primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re McMahon Family Ltd. Partnership, 495 B.R. 411, 2013 Bankr. LEXIS 2771, 58 Bankr. Ct. Dec. (CRR) 51, 2013 WL 3476146 (Wis. 2013).

Opinion

DECISION AND ORDER ON CONFIRMATION OF CHAPTER 12 PLAN

SUSAN V. KELLEY, Bankruptcy Judge.

McMahon Family Limited Partnership (the “Debtor”) filed a Chapter 12 petition on December 10, 2012. Chapter 12 is limited to family farmers, and the Debtor operates a tree farm on two parcels of real property in northern Wisconsin. The Court uses the term “operates” loosely: the Debtor’s statement of financial affairs reveals that the Debtor has not received any income from the operation of the business in the last two years.

The Debtor filed a modified Chapter 12 plan on May 23, 2013. The Chapter 12 Trustee objected that the plan does not meet the “best interest of creditors” test of 11 U.S.C. § 1225(a)(4). Under that test, the plan must provide each unsecured creditor with a distribution of not less than the amount that the creditor would receive in a liquidation of the Debtor’s bankruptcy estate under Chapter 7. First Bank Financial Centre (the “Bank”) a creditor with a secured and unsecured claim, also objected to confirmation of the plan contending (1) the Debtor does not qualify for Chapter 12 relief; (2) unsecured creditors would be paid in full in a Chapter 7 liquidation; and (3) the Debtor’s proposed treatment of the Bank’s secured claim is commercially unreasonable. The Court considered the objections at confirmation hearings held on April 10, 2013 and June 18, 2013.

The Debtor’s eligibility for relief as a family farmer should be considered first. If the Debtor were an individual, the Debtor would not qualify for Chapter 12. Under Bankruptcy Code § 101(18)(A), individuals must receive more than 50% of their gross income from the farming operation in order to qualify, and Christopher McMahon, the principal of the Debtor, derives his income from his position as a medical equipment salesman. But the definition is different for corporations and partnerships like the Debtor. See In re [413]*413Cross Timbers Ranch, Inc., 151 B.R. 923 (Bankr.W.D.Mo.1993) (no income requirement for family farmer corporations). For entities, Bankruptcy Code § 101(18)(B) defines a family farmer as: “[Corporation or partnership in which more than 50 percent of the outstanding stock or equity is held by one family, or by one family and the relatives of the members of such family, and such family or such relatives conduct the farming operation.” A corporation is the general partner of the Debtor, and that corporation is owned by Mr. McMahon and his wife. Although conceding that the McMahon family owns all of the equity interests in the Debtor, the Bank disputes that the family is conducting a farming operation. The issue poses two sub-questions: (1) is a tree farm a farming operation; and (2) is the McMahon family conducting it.

According to the Bankruptcy Code, “Farming operation” includes farming, tillage of the soil, dairy farming, ranching, production or raising of crops, poultry, or livestock, and production of poultry or livestock products in an unmanufactured state.” 11 U.S.C. § 101(21). Two cases have touched on whether a tree farm qualifies as a farming operation and reached the opposite conclusion. In In re Sugar Pine Ranch, 100 B.R. 28, 34 (Bankr.D.Or. 1989), the court adopted an expansive view and held that “[T]he debtor’s operations, including the harvesting of timber on a sustained yield basis, constitutes an integrated farming operation.” In Sugar Pine Ranch, the issue before the court was whether the debtor’s income from the timber harvest was farm income; the court did not define a tree farm as a farming operation. Moreover, the tree harvesting was part of an “integrated farming operation,” not simply a tree farm. See In re Alderson, 114 B.R. 672, 680 (Bankr.D.S.D. 1990) (“Income from timber harvesting is includable in farm income when such is done on a sustained yield basis and is part of an integrated farming operation. In re Sugar Pine Ranch, 100 B.R. 28 (Bankr. D.Or.1989). Here, the harvesting of timber is neither on a sustained yield basis nor a part of an integrated farming operation. Rather, it was a one time removal of timber from the ranch.”) In In re Miller, 122 B.R. 360, 364-65 (Bankr.N.D.Iowa 1990), the court criticized Sugar Pine Ranch’s broad reading of the Code:

The finding of the Sugar Pine Ranch court that logging is a farming operation is a very expansive view of farming activity. In this case, the Debtors own the land upon which the trees they harvest are grown. However, to take the Debtors’ argument to its logical conclusion, any person with a chain saw and truck for hauling logs and who owns or rents any timberland would qualify as a farmer. The Court finds such an expansive view of farming to be troubling.

The Miller court went on to find that even if a tree farm qualified as a farming operation, the debtor also processed the trees at a sawmill, disqualifying the debtor’s operation under the definition in § 101(21). Neither Sugar Pine Ranch nor Miller is exactly like this ease. In Sugar Pine Ranch, the debtor raised animals, and therefore conducted some traditional farming activities in addition to the tree harvesting, and in Miller, the debtor conducted activities that definitely did not fit within the definition of farming operation, since the trees were processed and sold at the debtor’s sawmill. Here, the tree farm operation is the sole farming activity, and the Debtor claims it qualifies as a family farmer.

In support of confirmation of the plan, at the June 18, 2013 hearing, Mr. McMahon testified that he purchased 160 acres in Sawyer County in 1994 and 200 acres in Taylor County in 1999. Mr. McMahon [414]*414transferred both properties to the Debtor in 2003. The Taylor County property contains a 40-acre parcel improved by a farmhouse.1 Mr. McMahon stated that he purchased the property to make it into a productive tree farm operation over a period of years so that it would be sustainable by the time he retired. He testified that he and his family immediately began timber operations by purchasing and planting seedlings. He identified pictures from the year 2000 showing the family planting seedlings on the Taylor County property and from 2003 showing some growth of the trees. He also testified that some seedlings were hand-planted on the Sawyer County property in the 2002-2003 time-frame; he indicated that, given the nature of the Sawyer County property, the family could not use machinery to plant the seedlings. Mr. McMahon offered no pictures or other evidence to corroborate his testimony that he had planted seedlings on the Sawyer County property, and at the April 10, 2013 hearing, Mr. McMahon testified unequivocally that he and his family had not planted any seedlings at the Sawyer County property.2 This conflicting testimony is troubling.

Mr. McMahon’s testimony about the number of seedlings he planted also was contradictory. In June, he testified that since the year 2000, he and his family have planted an average of 3,000 seedlings per year. One year, they put in 6,000 seedlings. When asked how many trees he had planted since they started, Mr. McMahon testified “I am guessing maybe 120,-000.” In April, he testified a total of 90,-000 seedlings were planted.

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Related

In Re Alderson
114 B.R. 672 (D. South Dakota, 1990)
In Re Sugar Pine Ranch
100 B.R. 28 (D. Oregon, 1989)
In Re Cross Timbers Ranch, Inc.
151 B.R. 923 (W.D. Missouri, 1993)
In Re Miller
122 B.R. 360 (N.D. Iowa, 1990)

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Bluebook (online)
495 B.R. 411, 2013 Bankr. LEXIS 2771, 58 Bankr. Ct. Dec. (CRR) 51, 2013 WL 3476146, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-mcmahon-family-ltd-partnership-wieb-2013.