In re Ransom

191 B.R. 720, 1995 Bankr. LEXIS 1970, 1995 WL 803112
CourtUnited States Bankruptcy Court, N.D. Illinois
DecidedAugust 25, 1995
DocketBankruptcy No. 94 B 14976
StatusPublished
Cited by1 cases

This text of 191 B.R. 720 (In re Ransom) is published on Counsel Stack Legal Research, covering United States Bankruptcy Court, N.D. Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re Ransom, 191 B.R. 720, 1995 Bankr. LEXIS 1970, 1995 WL 803112 (Ill. 1995).

Opinion

MEMORANDUM OPINION1

SUSAN PIERSON SONDERBY, Bankruptcy Judge.

BACKGROUND

On July 27, 1994, David R. Ransom, Jr. d/b/a D & R Press (“Debtor”) filed a voluntary petition for relief pursuant to Chapter 11 of the Bankruptcy Code. D & R Press is a small commercial printing company in Chicago, Illinois. The Debtor is current with the monthly operating reports and with the quarterly fees payable to the United States Trustee. Since the bankruptcy filing, the Debtor’s operating profits are approximately $25,000. Debtor’s property is fully encumbered by consensual liens and the tax liens of the Internal Revenue Service (“IRS”). The IRS filed a proof of claim in the amount of $361,140.22. The Debtor has not objected to the IRS’ claim.

On May 9, 1995, the Debtor filed a plan of reorganization providing that the Debtor will file an Offer of Settlement of his debt with the IRS. The plan provides that “the compromised amount or the actual amount shall be paid, in deferred monthly cash payments, over a period of seventy-two (72) months after [sic] the date of assessment of such claim, of a value, as of the [sic] Effective Date of the Plan.” On March 22, 1995, the IRS filed a motion to convert or dismiss the Debtor’s case pursuant to 11 U.S.C. § 1112(b)(2) of the Bankruptcy Code.2 Subsequently, the Debtor filed a response and the IRS filed a reply. On May 9, 1995, the Court held an evidentiary hearing.

ANALYSIS

Section 1112(b)(2)' states that a court may dismiss a case or convert a case to Chapter 7 for cause, including the “inability to effectuate a plan.” 11 U.S.C. § 1112(b)(2). [722]*722The Seventh Circuit has directed lower courts to dismiss or convert a ease pursuant to § 1112(b)(2), “‘if the court determines that it is unreasonable to expect that a plan can be confirmed.’ ” In re Woodbrook Assoc., 19 F.3d 312, 316 (7th Cir.1994) (citing 5 Conrad K. Cyr et ah, Collier on Bankruptcy ¶ 1112.03[2][d3[ii], at 1112-19 to 1112-20 (15th ed. 1993)). Where there is a reasonable prospect of successful rehabilitation, a motion under § 1112(b) must be denied. In re Garland Corp., 6 B.R. 456, 460 (1st Cir. BAP 1980). The burden is on the movant to establish by a preponderance of the evidence the cause for dismissal. Woodbrook, 19 F.3d at 317.

Pursuant to § 1141(d)(2), the confirmation of a plan does not discharge an individual debtor from any debt excepted from discharge under § 523. The IRS contends that since the Debtor cannot bind the IRS to his plan, the Debtor will be unable to effectuate a plan of reorganization. The IRS’ argument fails because the IRS has not proven that it has any nondisehargeable tax claims. Not all claims for taxes are nondisehargeable. See 11 U.S.C. § 523(a). The Federal Rules of Bankruptcy Procedure mandate that an adversary proceeding must be filed in order to determine the dischargeability of a debt. Fed.R.Bankr.P. 7001(6). Simply because this is a Chapter 11 proceeding does not obviate the need for a determination that the IRS’ claim is nondisehargeable. In a Chapter 11 case “a debt deemed to be non-disehargeable under 11 U.S.C. § 523(a) will not be discharged. 11 U.S.C. § 1141(d)(2). In this regard, a complaint needs to be filed, just as in a Chapter 7.” 2 Thomas J. Salerno et al., Advanced Chapter 11 Bankruptcy Practice § 13.5, at 13-6 (1994); see also Matter of C & P Gray Farms, Inc., 70 B.R. 704, 711 (Bankr.W.D.Mo.1987) (noting that the court has routinely heard and determined nondischargeability actions in Chapter 11 cases).

The IRS cites numerous cases for the proposition that creditors cannot be bound by a Chapter 11 plan which prevented the creditor from executing or collecting on the nondisehargeable debts. De Paolo v. U.S. (In re DePaolo), 45 F.3d 373 (10th Cir.1995); In re Amigoni, 109 B.R. 341 (Bankr.N.D.Ill.1989); In re Howell, 84 B.R. 834 (Bankr. M.D.Fla.1988). The Court does not disagree with that proposition. However, the status of the debts as being nondisehargeable was clear in all those cases. In Howell, the Debt- or sought to cram down its plan which precluded a creditor holding a nondisehargeable claim from pursuing the claim post-confirmation. 84 B.R. at 835. In that case, the creditor initiated an adversary proceeding pursuant to § 523 to determine whether the debt was nondisehargeable. Id. After a trial on the merits, the Court entered a judgment finding that the debts were nondis-chargeable. Id. In Amigoni the Chapter 11 debtors proposed plans which sought to restrict the rights of parties who were holding nondisehargeable claims. 109 B.R. at 342-43. However, the debtors specifically conceded that the debt in question was non-disehargeable. Id. at 344. Similarly, in De-Paolo, the parties did not dispute that the taxes were nondisehargeable. 45 F.3d at 375. See also Fein v. U.S. (In re Fein), 22 F.3d 631 (5th Cir.1994) (debtor instituted an adversary proceeding to determine whether income tax deficiencies had been discharged).

In this case, unlike Howell, Amigoni or DePaolo, there is a question as to whether the IRS’ claim is nondisehargeable. The court cannot determine from the papers filed and the testimony given which tax claims are nondisehargeable. Looking at the evidence presented at the hearing, the IRS has not proven by a preponderance of the evidence that the debts are nondisehargeable. The Debtor did not concede that the debts were nondisehargeable, nor is the Court convinced of that fact. A separate adversary proceeding must be instituted so that the Debtor can specifically admit or deny which tax claims it considers nondisehargeable.

The Tenth Circuit did not require the filing of an adversary complaint to determine that the IRS’ claim was nondisehargeable. Grynberg v. U.S. (In re Grynberg), 986 F.2d 367 (10th Cir.), cert. denied, — U.S.-, 114 S.Ct. 57, 126 L.Ed.2d 27 (1993). However, in Grynberg, the taxes at issue were gift taxes which the Court found easily fit into the nondisehargeable category. Id. at 369. That is not so in this case. In this case, the IRS’ claim consisted of withholding taxes since 1989, federal unemployment taxes since 1989, income taxes since 1987, and employ[723]*723ment taxes since 1987, as well as respective interest and penalty assessments for some of those taxes.

The IRS contends that the Debtor has not objected to its claim. Pursuant to § 502, a proof of claim is allowed unless a party-in-interest objects. At this point in time, the IRS’ claim is allowable.

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Bluebook (online)
191 B.R. 720, 1995 Bankr. LEXIS 1970, 1995 WL 803112, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-ransom-ilnb-1995.