Whyte v. GMF Investments Inc. (In re Fairchild Aircraft Corp.)

126 B.R. 717, 5 Tex.Bankr.Ct.Rep. 347, 1991 Bankr. LEXIS 632
CourtUnited States Bankruptcy Court, W.D. Texas
DecidedApril 5, 1991
DocketBankruptcy No. 90-50257-C; Adv. No. 90-5269-C
StatusPublished
Cited by3 cases

This text of 126 B.R. 717 (Whyte v. GMF Investments Inc. (In re Fairchild Aircraft Corp.)) is published on Counsel Stack Legal Research, covering United States Bankruptcy Court, W.D. Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Whyte v. GMF Investments Inc. (In re Fairchild Aircraft Corp.), 126 B.R. 717, 5 Tex.Bankr.Ct.Rep. 347, 1991 Bankr. LEXIS 632 (Tex. 1991).

Opinion

DECISION AND ORDER ON MOTION OF PLAINTIFF TO STRIKE CROSS CLAIMS AND COUNTERCLAIMS

LEIF M. CLARK, Bankruptcy Judge.

CAME ON for consideration the joint motion of Bettina M. Whyte (“Fiscal Agent/Trustee”), Merlin Express Inc. (“Merlin”) and Fairchild Gen-Aero, Inc. (“Gen-Aero”) to strike or dismiss the Counterclaims filed by GMF Investments, Inc. (“GMF”), Metro Aviation, Inc. (“Metro”) and Morgan Spectrum, Inc. (“Morgan”) (collectively referred to as “Defendants”). Upon consideration of the evidence presented, the arguments of counsel and the pleadings in the matter, the court enters this its decision disposing of these matters.

[719]*719JURISDICTION

This Court has original subject matter jurisdiction over this matter pursuant to 28 U.S.C. § 1334(b) and may enter a final order with respect thereto. 28 U.S.C. § 157(e)(2). This matter is a core proceeding. 28 U.S.C. §§ 157(b)(2)(A), (0).

FACTUAL BACKGROUND

There are a number of related entities that comprise GMF Investments, Inc. (“consolidated group”). Fairchild Aircraft Corporation (“Debtor”), Merlin and Gen-Aero, former subsidiaries of Debtor, were all part of this consolidated group. Merlin and Gen-Aero are now subsidiaries of Fair-child Acquisitions, Inc. Bettina Whyte was the Chapter 11 Trustee for the Debtor, whose plan was confirmed in September 1990. Ms. Whyte was appointed the Fiscal Agent under that plan. The Defendants Morgan and Metro are related entities to Defendant GMF Investments. As the common parent corporation, GMF in prior years filed consolidated federal income tax returns on behalf of all related entities, as permitted by 26 U.S.C. § 1501. There was no prior explicit agreement or understanding among the Debtor and the other related entities regarding the disposition of any tax refunds or the allocation of any losses resulting from the filing of the consolidated return.

On August 30, 1990 the Chapter 11 Trustee filed this Complaint to Determine Title to Tax Refunds and Application for Preliminary and Permanent Injunction. The original purpose of the Complaint was to safeguard certain tax refunds received and expected to be received from dissipation by other non-debtor entities which might assert an entitlement to all or a portion of these refunds (such as GMFI) and to determine title to such refunds. The estate has so far received two refund checks from the I.R.S. aggregating $1,709,-867.00, both of which checks were made payable to “GMFI Investments, Inc. and Subs.” Roughly $2,600,000.00 in total expected tax refunds due to the consolidated group is at issue.

Defendants counterclaim that the Trustee somehow conspired to “gain control” over the tax refunds at issue. Defendants assert that the 1989 return, prepared at the direction of the Trustee, misallocated the losses and the income between the various components of the GMF consolidated group and that, as a result, Defendants’ entitlement to a share of the tax refunds was unfairly reduced.1 They further contend that the accounting for the various entities is incorrect and that such flaws will ultimately affect who gets the refund and may, in fact, result in I.R.S. penalties.2 The Defendants request that they get their rightful share of the present and future tax refunds and that they receive damages for the loss of interest income resulting from their not being able to immediately receive their portion of the tax refunds at issue.3 They further assert damages “suffered as a result of the Trustee’s calculated actions,” suggesting an intent on the part of the Trustee to harm other members of the consolidated group by the manner in which it prepared and filed the consolidated returns from which these refunds resulted. Defendants also request a determination “that [they have] no liability for any penalties and interest arising out of the 1988 and 1989 returns.”

Defendants also assert a number of crossclaims against Deloitte-Touche (formerly known as Touche-Ross) and T. Charles Parr, a tax accountant with De-loitte-Touche. Deloitte-Touche prepared the tax returns in issue. Defendant claims that Mr. Parr and Deloitte-Touche have violated their duty of loyalty to GMF and have subjected them to potential liability [720]*720out of the 1988, 1989 and 1990 tax returns. The relief requested is that these accountants be held liable for any penalties and interest as a result of the 1988, 1989 and 1990 tax returns and damages for this breach of loyalty. Neither of Parr nor Deloitte-Touche filed a motion to dismiss the crossclaims asserted against them and, accordingly, such these claims will not be addressed here.

ANALYSIS

I. FORUM

A threshold issue is whether this court is the appropriate forum in which to determine the competing rights to this tax refund. Defendants charge that, because this is at bottom an action to recover money, this court lacks the subject matter jurisdiction to even entertain this action, or at the least, lacks the authority to enter final orders in this adversary proceeding. They also charge that this court lacks the authority to conduct the jury trial they have requested, because this is an action at law while this court is a court of equity which cannot conduct jury trials.4

A number of recent decisions have had little difficulty in finding that this court is indeed an appropriate forum in which to determine the competing rights of parties in a tax refund resulting from a consolidated return, where one of the parties is a debtor in bankruptcy. See In re Reveo D.S., Inc., Ill B.R. 631 (Bankr.N.D.Ohio 1990), rev’d on other grounds, 898 F.2d 498 (6th Cir.1990) (income tax refund resulting from carryback of net operating loss against taxable income attributable to former subsidiary in prior year when it was member of debtor’s consolidated tax group belonged to subsidiary); Matter of Florida Park Banks, Inc., 110 B.R. 986 (Bankr.M. D.Fla.1990) (declaratory judgment brought under 28 U.S.C. §§ 2201 and 2202 to determine whether income tax refund from Internal Revenue Service was property of bankruptcy estate holding that the filing of consolidated tax return by affiliated corporations does not per se affect the entitlement of tax refunds between those corporations); In re Prudential Lines, Inc., 107 B.R. 832 (Bankr.S.D.N.Y.1989) (net operating losses are property of the estate); see also 28 U.S.C. §§ 1334(b), (d), 157(b)(2)(A); 11 U.S.C. §§ 505, 541.

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126 B.R. 717, 5 Tex.Bankr.Ct.Rep. 347, 1991 Bankr. LEXIS 632, Counsel Stack Legal Research, https://law.counselstack.com/opinion/whyte-v-gmf-investments-inc-in-re-fairchild-aircraft-corp-txwb-1991.