In Re Mitchell

398 B.R. 557, 2008 WL 4974577
CourtUnited States Bankruptcy Court, N.D. Mississippi
DecidedNovember 20, 2008
Docket19-10844
StatusPublished

This text of 398 B.R. 557 (In Re Mitchell) is published on Counsel Stack Legal Research, covering United States Bankruptcy Court, N.D. Mississippi primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In Re Mitchell, 398 B.R. 557, 2008 WL 4974577 (Miss. 2008).

Opinion

*558 OPINION

DAVID W. HOUSTON, III, Bankruptcy Judge.

On consideration before the court is an objection to the proof of claim of Panola County Solid Waste, an agency or department of Panola County, Mississippi, filed by the debtor, James I. Mitchell (“Mitchell”); a response to said objection having been filed by Panola County, Mississippi, on behalf of its agency which will be referred to in this Opinion as “Panola County Solid Waste;” and the court, having heard and considered same, hereby finds as follows, to-wit:

I.

The court has jurisdiction of the parties to and the subject matter of this proceeding pursuant to 28 U.S.C. § 1334 and 28 U.S.C. § 157. This is a core contested proceeding as defined in 28 U.S.C. § 157(b)(2)(A), (B), and (0).

II.

Mitchell filed his voluntary petition pursuant to Chapter 13 of the United States Bankruptcy Code on March 11, 2008, and listed “Panola County Sanitation” on Schedule F as an unsecured creditor with a non-priority claim in the sum of $1,700.00. (As noted above, the correct name for this entity is Panola County Solid Waste.)

Panola County Solid Waste initially filed an unsecured proof of claim on July 22, 2008 in the amount of $821.92, which was listed as Claim No. 6 on the court’s claims register. Subsequently. Panola County Solid Waste filed a second unsecured proof of claim on August 5, 2008, in the amount of $1,236.65, which was listed as Claim No. 7 on the court’s claims register. On September 16, 2008, Panola County Solid Waste amended proof of claim No. 7, asserting that it was a priority tax claim pursuant to § 507(a)(8) of the Bankruptcy Code.

The debtor objected to the amended proof of claim stating that it is not a priority tax claim, but only un unsecured fee for the collection of garbage.

III.

The initial issue for this court to determine is whether the claim of Panola County Solid Waste is a priority tax pursuant to § 507(a)(8), or whether it is a fee which would be considered an unsecured non-priority claim.

The court reviewed the order of the Board of Supervisors of Panola County, entitled “In the Matter of Establishing Garbage and Rubbish Collection for Pano-la County, Mississippi,” dated April 12, 1993. The pertinent language of the order is set forth as follows:

THIS DAY there came on for consideration by the Board of Supervisors of Panola County, Mississippi, the matter of federal mandates concerning the collection and disposal of garbage and rubbish and the requirements of Title 19-5 and Title 17-7 of the Mississippi Code. [The language referring to Title 17-7 is incorrect; it should actually reference Title 17-17.]
7. Effective May 1, 1993, occupants of each single family residence shall pay a monthly fee of $9.00 for the collection and disposal of garbage and for the disposal of household trash and rubbish. A 5% credit will be granted to those residents who pay annually in advance.
8. Pursuant to § 17-17-61 of the Mississippi Code, unpaid fees for garbage collection shall become an assessment upon the real and/or personal property *559 and/or motor vehicle of the user of the services. Such fees shall become an assessment upon the real property where the garbage was collected regardless of whether the person who incurred the fees was the owner of the real property, a tenant or some other party. The procedure for collecting such fees shall be that as set forth in § 17-17-61 of the Mississippi Code.

Miss.Code Ann. § 19-5-21 provides the mechanism for counties to levy an ad valo-rem tax to defray the costs of establishing and operating rubbish and garbage disposal systems, as follows:

(l)(a) Except as provided in paragraphs (b), (c), (d), and (g) of this subsection, the Board of Supervisors, to defray the cost of establishing and operating the system provided for in § 19-5-17, may levy an ad valorem tax not to exceed four (4) mills on all taxable property within the area served by the county garbage or rubbish collection or disposal system.

Miss.Code Ann. § 19 — 5—21(l)(a) (emphasis added).

In reviewing the board of supervisors’ order, the court observes that the order makes no reference to the levy of an ad valorem tax as permitted by Miss.Code Ann. § 19-5-21. Since the county speaks through the minutes and orders of its board, the court is compelled to conclude that Panola County has not effectively levied an ad valorem tax to defray the costs of the county rubbish and garbage disposal system. What the county has authorized is the collection of a monthly fee in the amount of $9.00 for these same purposes pursuant to Miss.Code § 19-5-17, which provides as follows:

[T]he Board of Supervisors of any county in the state shall provide for the collection and disposal of garbage and the disposal of rubbish, and for that purpose is required to establish, operate and maintain a garbage and/or rubbish disposal system or systems; ... and, if it so desires, to establish, maintain and collect rates, fees and charges for collecting and disposing of such garbage and/or rubbish ...

Miss.Code Ann. § 19-5-17 (emphasis added).

Panola County Solid Waste has cited cases to the court that discuss guidelines for determining whether an obligation is a fee or a tax. There is no need to discuss these cases since the board of supervisors’ order clearly establishes a $9.00 monthly fee as opposed to levying a tax. As such, in this case, the Panola County Solid Waste claim is simply one for garbage collection fees, not a tax. “A claim held by a governmental entity for an obligation that constitutes collection of a fee rather than collection of a tax will not be entitled to priority.” Collier on Bankruptcy 15th Ed. Rev. ¶ 507.10[6][a].

There is nothing to prevent the Panola County Board of Supervisors from enacting an appropriate order which levies an ad valorem tax not to exceed four mills to defray the cost of establishing and operating the garbage collection and disposal system. If this is done in keeping with state law, future claims filed on behalf of Panola County Solid Waste would be considered a tax pursuant to § 507(a)(8) of the Bankruptcy Code.

IV.

In its order, the Panola County Board of Supervisors set forth a procedure for enforcing the collection of the garbage and rubbish collection fees pursuant to Miss. Code Ann.

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Cite This Page — Counsel Stack

Bluebook (online)
398 B.R. 557, 2008 WL 4974577, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-mitchell-msnb-2008.