US (United States) Code. Title 11. Chapter 5: Creditors, the debtor and the state

Codificación normativa de EEUU (Estados Unidos). Legislación federal estadounidense # Bankruptcy

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11 USC CHAPTER 5 - CREDITORS, THE DEBTOR, AND THE ESTATE 01/06/03

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TITLE 11 - BANKRUPTCY

CHAPTER 5 - CREDITORS, THE DEBTOR, AND THE ESTATE

.

-HEAD-

CHAPTER 5 - CREDITORS, THE DEBTOR, AND THE ESTATE

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SUBCHAPTER I - CREDITORS AND CLAIMS

Sec.

501. Filing of proofs of claims or interests.

502. Allowance of claims or interests.

503. Allowance of administrative expenses.

504. Sharing of compensation.

505. Determination of tax liability.

506. Determination of secured status.

507. Priorities.

508. Effect of distribution other than under this title.

509. Claims of codebtors.

510. Subordination.

SUBCHAPTER II - DEBTOR'S DUTIES AND BENEFITS

521. Debtor's duties.

522. Exemptions.

523. Exceptions to discharge.

524. Effect of discharge.

525. Protection against discriminatory treatment.

SUBCHAPTER III - THE ESTATE

541. Property of the estate.

542. Turnover of property to the estate.

543. Turnover of property by a custodian.

544. Trustee as lien creditor and as successor to certain creditors

and purchasers.

545. Statutory liens.

546. Limitations on avoiding powers.

547. Preferences.

548. Fraudulent transfers and obligations.

549. Postpetition transactions.

550. Liability of transferee of avoided transfer.

551. Automatic preservation of avoided transfer.

552. Postpetition effect of security interest.

553. Setoff.

554. Abandonment of property of the estate.

555. Contractual right to liquidate a securities contract.

556. Contractual right to liquidate a commodity contract or forward

contract. (FOOTNOTE 1)

(FOOTNOTE 1) So in original. Does not conform to section

catchline.

557. Expedited determination of interests in, and abandonment or

other disposition of grain assets.

558. Defenses of the estate.

559. Contractual right to liquidate a repurchase agreement.

560. Contractual right to terminate a swap agreement.

AMENDMENTS

1990 - Pub. L. 101-311, title I, Sec. 106(b), June 25, 1990, 104

Stat. 268, added item 560.

1986 - Pub. L. 99-554, title II, Sec. 283(q), Oct. 27, 1986, 100

Stat. 3118, amended items 557 to 559 generally, substituting

''interests in, and abandonment or other disposition of grain

assets'' for ''in and disposition of grain'' in item 557.

1984 - Pub. L. 98-353, title III, Sec. 352(b), 396(b), 470(b),

July 10, 1984, 98 Stat. 361, 366, 380, added items 557, 558, and

559.

1982 - Pub. L. 97-222, Sec. 6(b), July 27, 1982, 96 Stat. 237,

added items 555 and 556.

-SECREF-

CHAPTER REFERRED TO IN OTHER SECTIONS

This chapter is referred to in section 103 of this title; title

15 section 78fff.

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11 USC SUBCHAPTER I - CREDITORS AND CLAIMS 01/06/03

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TITLE 11 - BANKRUPTCY

CHAPTER 5 - CREDITORS, THE DEBTOR, AND THE ESTATE

SUBCHAPTER I - CREDITORS AND CLAIMS

.

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SUBCHAPTER I - CREDITORS AND CLAIMS

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11 USC Sec. 501 01/06/03

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TITLE 11 - BANKRUPTCY

CHAPTER 5 - CREDITORS, THE DEBTOR, AND THE ESTATE

SUBCHAPTER I - CREDITORS AND CLAIMS

-HEAD-

Sec. 501. Filing of proofs of claims or interests

-STATUTE-

(a) A creditor or an indenture trustee may file a proof of

claim. An equity security holder may file a proof of interest.

(b) If a creditor does not timely file a proof of such creditor's

claim, an entity that is liable to such creditor with the debtor,

or that has secured such creditor, may file a proof of such claim.

(c) If a creditor does not timely file a proof of such creditor's

claim, the debtor or the trustee may file a proof of such claim.

(d) A claim of a kind specified in section 502(e)(2), 502(f),

502(g), 502(h) or 502(i) of this title may be filed under

subsection (a), (b), or (c) of this section the same as if such

claim were a claim against the debtor and had arisen before the

date of the filing of the petition.

-SOURCE-

(Pub. L. 95-598, Nov. 6, 1978, 92 Stat. 2578; Pub. L. 98-353, title

III, Sec. 444, July 10, 1984, 98 Stat. 373.)

-MISC1-

HISTORICAL AND REVISION NOTES

LEGISLATIVE STATEMENTS

The House amendment adopts section 501(b) of the Senate amendment

leaving the Rules of Bankruptcy Procedure free to determine where a

proof of claim must be filed.

Section 501(c) expands language contained in section 501(c) of

the House bill and Senate amendment to permit the debtor to file a

proof of claim if a creditor does not timely file a proof of the

creditor's claim in a case under title 11.

The House amendment deletes section 501(e) of the Senate

amendment as a matter to be left to the rules of bankruptcy

procedure. It is anticipated that the rules will enable

governmental units, like other creditors, to have a reasonable time

to file proofs of claim in bankruptcy cases.

For purposes of section 501, a proof of ''interest'' includes the

interest of a general or limited partner in a partnership, the

interest of a proprietor in a sole proprietorship, or the interest

of a common or preferred stockholder in a corporation.

SENATE REPORT NO. 95-989

This section governs the means by which creditors and equity

security holders present their claims or interests to the court.

Subsection (a) permits a creditor to file a proof of claim or

interest. An indenture trustee representing creditors may file a

proof of claim on behalf of the creditors he represents.

This subsection is permissive only, and does not require filing

of a proof of claim by any creditor. It permits filing where some

purpose would be served, such as where a claim that appears on a

list filed under proposed 11 U.S.C. 924 or 1111 was incorrectly

stated or listed as disputed, contingent, or unliquidated, where a

creditor with a lien is undersecured and asserts a claim for the

balance of the debt owed him (his unsecured claim, as determined

under proposed 11 U.S.C. 506(a)), or in a liquidation case where

there will be a distribution of assets to the holders of allowed

claims. In other instances, such as in no-asset liquidation cases,

in situations where a secured creditor does not assert any claim

against the estate and a determination of his claim is not made

under proposed 11 U.S.C. 506, or in situations where the claim

asserted would be subordinated and the creditor would not recover

from the estate in any event, filing of a proof of claim may simply

not be necessary. The Rules of Bankruptcy Procedure and practice

under the law will guide creditors as to when filing is necessary

and when it may be dispensed with. In general, however, unless a

claim is listed in a chapter 9 or chapter 11 case and allowed as a

result of the list, a proof of claim will be a prerequisite to

allowance for unsecured claims, including priority claims and the

unsecured portion of a claim asserted by the holder of a lien.

The Rules of Bankruptcy Procedure will set the time limits, the

form, and the procedure for filing, which will determine whether

claims are timely or tardily filed. The rules governing time

limits for filing proofs of claims will continue to apply under

section 405(d) of the bill. These provide a 6-month-bar date for

the filing of tax claims.

Subsection (b) permits a codebtor, surety, or guarantor to file a

proof of claim on behalf of the creditor to which he is liable if

the creditor does not timely file a proof of claim.

In liquidation and individual repayment plan cases, the trustee

or the debtor may file a proof of claim under subsection (c) if the

creditor does not timely file. The purpose of this subsection is

mainly to protect the debtor if the creditor's claim is

nondischargeable. If the creditor does not file, there would be no

distribution on the claim, and the debtor would have a greater debt

to repay after the case is closed than if the claim were paid in

part or in full in the case or under the plan.

Subsection (d) governs the filing of claims of the kind specified

in subsections (f), (g), (h), (i), or (j) of proposed 11 U.S.C.

502. The separation of this provision from the other claim-filing

provisions in this section is intended to indicate that claims of

the kind specified, which do not become fixed or do not arise until

after the commencement of the case, must be treated differently for

filing purposes such as the bar date for filing claims. The rules

will provide for later filing of claims of these kinds.

Subsection (e) gives governmental units (including tax

authorities) at least six months following the date for the first

meeting of creditors in a chapter 7 or chapter 13 case within which

to file proof of claims.

AMENDMENTS

1984 - Subsec. (d). Pub. L. 98-353 inserted ''502(e)(2),''.

EFFECTIVE DATE OF 1984 AMENDMENT

Amendment by Pub. L. 98-353 effective with respect to cases filed

90 days after July 10, 1984, see section 552(a) of Pub. L. 98-353,

set out as a note under section 101 of this title.

CHILD SUPPORT CREDITORS OR THEIR REPRESENTATIVES; APPEARANCE BEFORE

COURT

Pub. L. 103-394, title III, Sec. 304(g), Oct. 22, 1994, 108 Stat.

4134, provided that: ''Child support creditors or their

representatives shall be permitted to appear and intervene without

charge, and without meeting any special local court rule

requirement for attorney appearances, in any bankruptcy case or

proceeding in any bankruptcy court or district court of the United

States if such creditors or representatives file a form in such

court that contains information detailing the child support debt,

its status, and other characteristics.''

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SECTION REFERRED TO IN OTHER SECTIONS

This section is referred to in sections 502, 506, 726, 727, 901,

925, 944, 1111, 1141 of this title.

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11 USC Sec. 502 01/06/03

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TITLE 11 - BANKRUPTCY

CHAPTER 5 - CREDITORS, THE DEBTOR, AND THE ESTATE

SUBCHAPTER I - CREDITORS AND CLAIMS

-HEAD-

Sec. 502. Allowance of claims or interests

-STATUTE-

(a) A claim or interest, proof of which is filed under section

501 of this title, is deemed allowed, unless a party in interest,

including a creditor of a general partner in a partnership that is

a debtor in a case under chapter 7 of this title, objects.

(b) Except as provided in subsections (e)(2), (f), (g), (h) and

(i) of this section, if such objection to a claim is made, the

court, after notice and a hearing, shall determine the amount of

such claim in lawful currency of the United States as of the date

of the filing of the petition, and shall allow such claim in such

amount, except to the extent that -

(1) such claim is unenforceable against the debtor and property

of the debtor, under any agreement or applicable law for a reason

other than because such claim is contingent or unmatured;

(2) such claim is for unmatured interest;

(3) if such claim is for a tax assessed against property of the

estate, such claim exceeds the value of the interest of the

estate in such property;

(4) if such claim is for services of an insider or attorney of

the debtor, such claim exceeds the reasonable value of such

services;

(5) such claim is for a debt that is unmatured on the date of

the filing of the petition and that is excepted from discharge

under section 523(a)(5) of this title;

(6) if such claim is the claim of a lessor for damages

resulting from the termination of a lease of real property, such

claim exceeds -

(A) the rent reserved by such lease, without acceleration,

for the greater of one year, or 15 percent, not to exceed three

years, of the remaining term of such lease, following the

earlier of -

(i) the date of the filing of the petition; and

(ii) the date on which such lessor repossessed, or the

lessee surrendered, the leased property; plus

(B) any unpaid rent due under such lease, without

acceleration, on the earlier of such dates;

(7) if such claim is the claim of an employee for damages

resulting from the termination of an employment contract, such

claim exceeds -

(A) the compensation provided by such contract, without

acceleration, for one year following the earlier of -

(i) the date of the filing of the petition; or

(ii) the date on which the employer directed the employee

to terminate, or such employee terminated, performance under

such contract; plus

(B) any unpaid compensation due under such contract, without

acceleration, on the earlier of such dates;

(8) such claim results from a reduction, due to late payment,

in the amount of an otherwise applicable credit available to the

debtor in connection with an employment tax on wages, salaries,

or commissions earned from the debtor; or

(9) proof of such claim is not timely filed, except to the

extent tardily filed as permitted under paragraph (1), (2), or

(3) of section 726(a) of this title or under the Federal Rules of

Bankruptcy Procedure, except that a claim of a governmental unit

shall be timely filed if it is filed before 180 days after the

date of the order for relief or such later time as the Federal

Rules of Bankruptcy Procedure may provide.

(c) There shall be estimated for purpose of allowance under this

section -

(1) any contingent or unliquidated claim, the fixing or

liquidation of which, as the case may be, would unduly delay the

administration of the case; or

(2) any right to payment arising from a right to an equitable

remedy for breach of performance.

(d) Notwithstanding subsections (a) and (b) of this section, the

court shall disallow any claim of any entity from which property is

recoverable under section 542, 543, 550, or 553 of this title or

that is a transferee of a transfer avoidable under section 522(f),

522(h), 544, 545, 547, 548, 549, or 724(a) of this title, unless

such entity or transferee has paid the amount, or turned over any

such property, for which such entity or transferee is liable under

section 522(i), 542, 543, 550, or 553 of this title.

(e)(1) Notwithstanding subsections (a), (b), and (c) of this

section and paragraph (2) of this subsection, the court shall

disallow any claim for reimbursement or contribution of an entity

that is liable with the debtor on or has secured the claim of a

creditor, to the extent that -

(A) such creditor's claim against the estate is disallowed;

(B) such claim for reimbursement or contribution is contingent

as of the time of allowance or disallowance of such claim for

reimbursement or contribution; or

(C) such entity asserts a right of subrogation to the rights of

such creditor under section 509 of this title.

(2) A claim for reimbursement or contribution of such an entity

that becomes fixed after the commencement of the case shall be

determined, and shall be allowed under subsection (a), (b), or (c)

of this section, or disallowed under subsection (d) of this

section, the same as if such claim had become fixed before the date

of the filing of the petition.

(f) In an involuntary case, a claim arising in the ordinary

course of the debtor's business or financial affairs after the

commencement of the case but before the earlier of the appointment

of a trustee and the order for relief shall be determined as of the

date such claim arises, and shall be allowed under subsection (a),

(b), or (c) of this section or disallowed under subsection (d) or

(e) of this section, the same as if such claim had arisen before

the date of the filing of the petition.

(g) A claim arising from the rejection, under section 365 of this

title or under a plan under chapter 9, 11, 12, or 13 of this title,

of an executory contract or unexpired lease of the debtor that has

not been assumed shall be determined, and shall be allowed under

subsection (a), (b), or (c) of this section or disallowed under

subsection (d) or (e) of this section, the same as if such claim

had arisen before the date of the filing of the petition.

(h) A claim arising from the recovery of property under section

522, 550, or 553 of this title shall be determined, and shall be

allowed under subsection (a), (b), or (c) of this section, or

disallowed under subsection (d) or (e) of this section, the same as

if such claim had arisen before the date of the filing of the

petition.

(i) A claim that does not arise until after the commencement of

the case for a tax entitled to priority under section 507(a)(8) of

this title shall be determined, and shall be allowed under

subsection (a), (b), or (c) of this section, or disallowed under

subsection (d) or (e) of this section, the same as if such claim

had arisen before the date of the filing of the petition.

(j) A claim that has been allowed or disallowed may be

reconsidered for cause. A reconsidered claim may be allowed or

disallowed according to the equities of the case. Reconsideration

of a claim under this subsection does not affect the validity of

any payment or transfer from the estate made to a holder of an

allowed claim on account of such allowed claim that is not

reconsidered, but if a reconsidered claim is allowed and is of the

same class as such holder's claim, such holder may not receive any

additional payment or transfer from the estate on account of such

holder's allowed claim until the holder of such reconsidered and

allowed claim receives payment on account of such claim

proportionate in value to that already received by such other

holder. This subsection does not alter or modify the trustee's

right to recover from a creditor any excess payment or transfer

made to such creditor.

-SOURCE-

(Pub. L. 95-598, Nov. 6, 1978, 92 Stat. 2579; Pub. L. 98-353, title

III, Sec. 445, July 10, 1984, 98 Stat. 373; Pub. L. 99-554, title

II, Sec. 257(j), 283(f), Oct. 27, 1986, 100 Stat. 3115, 3117; Pub.

L. 103-394, title II, Sec. 213(a), title III, Sec. 304(h)(1), Oct.

22, 1994, 108 Stat. 4125, 4134.)

-MISC1-

HISTORICAL AND REVISION NOTES

LEGISLATIVE STATEMENTS

The House amendment adopts a compromise position in section

502(a) between H.R. 8200, as passed by the House, and the Senate

amendment. Section 502(a) has been modified to make clear that a

party in interest includes a creditor of a partner in a partnership

that is a debtor under chapter 7. Since the trustee of the

partnership is given an absolute claim against the estate of each

general partner under section 723(c), creditors of the partner must

have standing to object to claims against the partnership at the

partnership level because no opportunity will be afforded at the

partner's level for such objection.

The House amendment contains a provision in section 502(b)(1)

that requires disallowance of a claim to the extent that such claim

is unenforceable against the debtor and unenforceable against

property of the debtor. This is intended to result in the

disallowance of any claim for deficiency by an undersecured

creditor on a non-recourse loan or under a State antideficiency

law, special provision for which is made in section 1111, since

neither the debtor personally, nor the property of the debtor is

liable for such a deficiency. Similarly claims for usurious

interest or which could be barred by an agreement between the

creditor and the debtor would be disallowed.

Section 502(b)(7)(A) represents a compromise between the House

bill and the Senate amendment. The House amendment takes the

provision in H.R. 8200 as passed by the House of Representatives

but increases the percentage from 10 to 15 percent.

As used in section 502(b)(7), the phrase ''lease of real

property'' applies only to a ''true'' or ''bona fide'' lease and

does not apply to financing leases of real property or interests

therein, or to leases of such property which are intended as

security.

Historically, the limitation on allowable claims of lessors of

real property was based on two considerations. First, the amount

of the lessor's damages on breach of a real estate lease was

considered contingent and difficult to prove. Partly for this

reason, claims of a lessor of real estate were not provable prior

to the 1934 amendments, to the Bankruptcy Act (former title 11).

Second, in a true lease of real property, the lessor retains all

risks and benefits as to the value of the real estate at the

termination of the lease. Historically, it was, therefore,

considered equitable to limit the claims of real estate lessor.

However, these considerations are not present in ''lease

financing'' transactions where, in substance, the ''lease''

involves a sale of the real estate and the rental payments are in

substance the payment of principal and interest on a secured loan

or sale. In a financing lease the lessor is essentially a secured

or unsecured creditor (depending upon whether his interest is

perfected or not) of the debtor, and the lessor's claim should not

be subject to the 502(b)(7) limitation. Financing ''leases'' are

in substance installment sales or loans. The ''lessors'' are

essentially sellers or lenders and should be treated as such for

purposes of the bankruptcy law.

Whether a ''lease'' is true or bona fide lease or, in the

alternative a financing ''lease'' or a lease intended as security,

depends upon the circumstances of each case. The distinction

between a true lease and a financing transaction is based upon the

economic substance of the transaction and not, for example, upon

the locus of title, the form of the transaction or the fact that

the transaction is denominated as a ''lease.'' The fact that the

lessee, upon compliance with the terms of the lease, becomes or has

the option to become the owner of the leased property for no

additional consideration or for nominal consideration indicates

that the transaction is a financing lease or lease intended as

security. In such cases, the lessor has no substantial interest in

the leased property at the expiration of the lease term. In

addition, the fact that the lessee assumes and discharges

substantially all the risks and obligations ordinarily attributed

to the outright ownership of the property is more indicative of a

financing transaction than of a true lease. The rental payments in

such cases are in substance payments of principal and interest

either on a loan secured by the leased real property or on the

purchase of the leased real property. See, e.g., Financial

Accounting Standards Board Statement No. 13 and SEC Reg. S-X, 17

C.F.R. sec. 210.3-16(q) (1977); cf. First National Bank of Chicago

v. Irving Trust Co., 74 F.2d 263 (2nd Cir. 1934); and Albenda and

Lief, ''Net Lease Financing Transactions Under the Proposed

Bankruptcy Act of 1973,'' 30 Business Lawyer, 713 (1975).

Section 502(c) of the House amendment presents a compromise

between similar provisions contained in the House bill and the

Senate amendment. The compromise language is consistent with an

amendment to the definition of ''claim'' in section 104(4)(B) of

the House amendment and requires estimation of any right to an

equitable remedy for breach of performance if such breach gives

rise to a right to payment. To the extent language in the House

and Senate reports indicate otherwise, such language is expressly

overruled.

Section 502(e) of the House amendment contains language modifying

a similar section in the House bill and Senate amendment. Section

502(e)(1) states the general rule requiring the court to disallow

any claim for reimbursement or contribution of an entity that is

liable with the debtor on, or that has secured, the claim of a

creditor to any extent that the creditor's claim against the estate

is disallowed. This adopts a policy that a surety's claim for

reimbursement or contribution is entitled to no better status than

the claim of the creditor assured by such surety. Section

502(e)(1)(B) alternatively disallows any claim for reimbursement or

contribution by a surety to the extent such claim is contingent as

of the time of allowance. Section 502(e)(2) is clear that to the

extent a claim for reimbursement or contribution becomes fixed

after the commencement of the case that it is to be considered a

prepetition claim for purposes of allowance. The combined effect

of sections 502(e)(1)(B) and 502(e)(2) is that a surety or codebtor

is generally permitted a claim for reimbursement or contribution to

the extent the surety or codebtor has paid the assured party at the

time of allowance. Section 502(e)(1)(C) alternatively indicates

that a claim for reimbursement or contribution of a surety or

codebtor is disallowed to the extent the surety or codebtor

requests subrogation under section 509 with respect to the rights

of the assured party. Thus, the surety or codebtor has a choice;

to the extent a claim for contribution or reimbursement would be

advantageous, such as in the case where such a claim is secured, a

surety or codebtor may opt for reimbursement or contribution under

section 502(e). On the other hand, to the extent the claim for such

surety or codebtor by way of subrogation is more advantageous, such

as where such claim is secured, the surety may elect subrogation

under section 509.

The section changes current law by making the election identical

in all other respects. To the extent a creditor's claim is

satisfied by a surety or codebtor, other creditors should not

benefit by the surety's inability to file a claim against the

estate merely because such surety or codebtor has failed to pay

such creditor's claim in full. On the other hand, to the extent

the creditor's claim against the estate is otherwise disallowed,

the surety or codebtor should not be entitled to increased rights

by way of reimbursement or contribution, to the detriment of

competing claims of other unsecured creditors, than would be

realized by way of subrogation.

While the foregoing scheme is equitable with respect to other

unsecured creditors of the debtor, it is desirable to preserve

present law to the extent that a surety or codebtor is not

permitted to compete with the creditor he has assured until the

assured party's claim has paid in full. Accordingly, section

509(c) of the House amendment subordinates both a claim by way of

subrogation or a claim for reimbursement or contribution of a

surety or codebtor to the claim of the assured party until the

assured party's claim is paid in full.

Section 502(h) of the House amendment expands similar provisions

contained in the House bill and the Senate amendment to indicate

that any claim arising from the recovery of property under section

522(i), 550, or 553 shall be determined as though it were a

prepetition claim.

Section 502(i) of the House amendment adopts a provision

contained in section 502(j) of H.R. 8200 as passed by the House but

that was not contained in the Senate amendment.

Section 502(i) of H.R. 8200 as passed by the House, but was not

included in the Senate amendment, is deleted as a matter to be left

to the bankruptcy tax bill next year.

The House amendment deletes section 502(i) of the Senate bill but

adopts the policy of that section to a limited extent for

confirmation of a plan of reorganization in section 1111(b) of the

House amendment.

Section 502(j) of the House amendment is new. The provision

codifies section 57k of the Bankruptcy Act (section 93(k) of former

title 11).

Allowance of Claims or Interest: The House amendment adopts

section 502(b)(9) of the House bill which disallows any tax claim

resulting from a reduction of the Federal Unemployment Tax Act

(FUTA) credit (sec. 3302 of the Internal Revenue Code (26 U.S.C.

3302)) on account of a tardy contribution to a State unemployment

fund if the contribution is attributable to ways or other

compensation paid by the debtor before bankruptcy. The Senate

amendment allowed this reduction, but would have subordinated it to

other claims in the distribution of the estate's assets by treating

it as a punitive (nonpecuniary loss) penalty. The House amendment

would also not bar reduction of the FUTA credit on account of a

trustee's late payment of a contribution to a State unemployment

fund if the contribution was attributable to a trustee's payment of

compensation earned from the estate.

Section 511 of the Senate amendment is deleted. Its substance is

adopted in section 502(b)(9) of the House amendment which reflects

an identical provision contained in H.R. 8200 as passed by the

House.

SENATE REPORT NO. 95-989

A proof of claim or interest is prima facie evidence of the claim

or interest. Thus, it is allowed under subsection (a) unless a

party in interest objects. The rules and case law will determine

who is a party in interest for purposes of objection to allowance.

The case law is well developed on this subject today. As a result

of the change in the liability of a general partner's estate for

the debts of this partnership, see proposed 11 U.S.C. 723, the

category of persons that are parties in interest in the partnership

case will be expanded to include a creditor of a partner against

whose estate the trustee of the partnership estate may proceed

under proposed 11 U.S.C. 723(c).

Subsection (b) prescribes the grounds on which a claim may be

disallowed. The court will apply these standards if there is an

objection to a proof of claim. The burden of proof on the issue of

allowance is left to the Rules of Bankruptcy Procedure. Under the

current chapter XIII rules, a creditor is required to prove that

his claim is free from usury, rule 13-301. It is expected that the

rules will make similar provision for both liquidation and

individual repayment plan cases. See Bankruptcy Act Sec. 656(b)

(section 1056(b) of former title 11); H.R. 31, 94th Cong., 1st

sess., sec. 6-104(a) (1975).

Paragraph (1) requires disallowance if the claim is unenforceable

against the debtor for any reason (such as usury,

unconscionability, or failure of consideration) other than because

it is contingent or unmatured. All such contingent or unmatured

claims are to be liquidated by the bankruptcy court in order to

afford the debtor complete bankruptcy relief; these claims are

generally not provable under present law.

Paragraph (2) requires disallowance to the extent that the claim

is for unmatured interest as of the date of the petition. Whether

interest is matured or unmatured on the date of bankruptcy is to be

determined without reference to any ipso facto or bankruptcy clause

in the agreement creating the claim. Interest disallowed under

this paragraph includes postpetition interest that is not yet due

and payable, and any portion of prepaid interest that represents an

original discounting of the claim, yet that would not have been

earned on the date of bankruptcy. For example, a claim on a $1,000

note issued the day before bankruptcy would only be allowed to the

extent of the cash actually advanced. If the original discount was

10 percent so that the cash advanced was only $900, then

notwithstanding the face amount of note, only $900 would be

allowed. If $900 was advanced under the note some time before

bankruptcy, the interest component of the note would have to be

prorated and disallowed to the extent it was for interest after the

commencement of the case.

Section 502(b) thus contains two principles of present law.

First, interest stops accruing at the date of the filing of the

petition, because any claim for unmatured interest is disallowed

under this paragraph. Second, bankruptcy operates as the

acceleration of the principal amount of all claims against the

debtor. One unarticulated reason for this is that the discounting

factor for claims after the commencement of the case is equivalent

to contractual interest rate on the claim. Thus, this paragraph

does not cause disallowance of claims that have not been discounted

to a present value because of the irrebuttable presumption that the

discounting rate and the contractual interest rate (even a zero

interest rate) are equivalent.

Paragraph (3) requires disallowance of a claim to the extent that

the creditor may offset the claim against a debt owing to the

debtor. This will prevent double recovery, and permit the claim to

be filed only for the balance due. This follows section 68 of the

Bankruptcy Act (section 108 of former title 11).

Paragraph (4) requires disallowance of a property tax claim to

the extent that the tax due exceeds the value of the property.

This too follows current law to the extent the property tax is ad

valorem.

Paragraph (5) prevents overreaching by the debtor's attorneys and

concealing of assets by debtors. It permits the court to examine

the claim of a debtor's attorney independently of any other

provision of this subsection, and to disallow it to the extent that

it exceeds the reasonable value of the attorneys' services.

Postpetition alimony, maintenance or support claims are

disallowed under paragraph (6). They are to be paid from the

debtor's postpetition property, because the claims are

nondischargeable.

Paragraph (7), derived from current law, limits the damages

allowable to a landlord of the debtor. The history of this

provision is set out at length in Oldden v. Tonto Realty Co., 143

F.2d 916 (2d Cir. 1944). It is designed to compensate the landlord

for his loss while not permitting a claim so large (based on a

long-term lease) as to prevent other general unsecured creditors

from recovering a dividend from the estate. The damages a landlord

may assert from termination of a lease are limited to the rent

reserved for the greater of one year or ten percent of the

remaining lease term, not to exceed three years, after the earlier

of the date of the filing of the petition and the date of surrender

or repossession in a chapter 7 case and 3 years lease payments in a

chapter 9, 11, or 13 case. The sliding scale formula for chapter 7

cases is new and designed to protect the long-term lessor. This

subsection does not apply to limit administrative expense claims

for use of the leased premises to which the landlord is otherwise

entitled.

This paragraph will not overrule Oldden, or the proposition for

which it has been read to stand: To the extent that a landlord has

a security deposit in excess of the amount of his claim allowed

under this paragraph, the excess comes into the estate. Moreover,

his allowed claim is for his total damages, as limited by this

paragraph. By virtue of proposed 11 U.S.C. 506(a) and 506(d), the

claim will be divided into a secured portion and an unsecured

portion in those cases in which the deposit that the landlord holds

is less than his damages. As under Oldden, he will not be

permitted to offset his actual damages against his security deposit

and then claim for the balance under this paragraph. Rather, his

security deposit will be applied in satisfaction of the claim that

is allowed under this paragraph.

As used in section 502(b)(7), the phrase ''lease of real

property'' applies only to a ''true'' or ''bona fide'' lease and

does not apply to financing leases of real property or interests

therein, or to leases of such property which are intended as

security.

Historically, the limitation on allowable claims of lessors of

real property was based on two considerations. First, the amount

of the lessors damages on breach of a real estate lease was

considered contingent and difficult to prove. Partly for this

reason, claims of a lessor of real estate were not provable prior

to the 1934 amendments to the Bankruptcy Act (former title 11).

Second, in a true lease of real property, the lessor retains all

risk and benefits as to the value of the real estate at the

termination of the lease. Historically, it was, therefore,

considered equitable to limit the claims of a real estate lessor.

However, these considerations are not present in ''lease

financing'' transactions where, in substance, the ''lease''

involves a sale of the real estate and the rental payments are in

substance the payment of principal and interest on a secured loan

or sale. In a financing lease the lessor is essentially a secured

or unsecured creditor (depending upon whether his interest is

perfected or not) of the debtor, and the lessor's claim should not

be subject to the 502(b)(7) limitation. Financing ''leases'' are

in substance installment sales or loans. The ''lessors'' are

essentially sellers or lenders and should be treated as such for

purposes of the bankruptcy law.

Whether a ''lease'' is true or bona fide lease or, in the

alternative, a financing ''lease'' or a lease intended as security,

depends upon the circumstances of each case. The distinction

between a true lease and a financing transaction is based upon the

economic substance of the transaction and not, for example, upon

the locus of title, the form of the transaction or the fact that

the transaction is denominated as a ''lease''. The fact that the

lessee, upon compliance with the terms of the lease, becomes or has

the option to become the owner of the leased property for no

additional consideration or for nominal consideration indicates

that the transaction is a financing lease or lease intended as

security. In such cases, the lessor has no substantial interest in

the leased property at the expiration of the lease term. In

addition, the fact that the lessee assumes and discharges

substantially all the risks and obligations ordinarily attributed

to the outright ownership of the property is more indicative of a

financing transaction than of a true lease. The rental payments in

such cases are in substance payments of principal and interest

either on a loan secured by the leased real property or on the

purchase of the leased real property. See, e. g., Financial

Accounting Standards Board Statement No. 13 and SEC Reg. S-X, 17

C.F.R. sec. 210.3-16(q) (1977); cf. First National Bank of Chicago

v. Irving Trust Co., 74 F.2d 263 (2nd Cir. 1934); and Albenda and

Lief, ''Net Lease Financing Transactions Under the Proposed

Bankruptcy Act of 1973,'' 30 Business Lawyer, 713 (1975).

Paragraph (8) is new. It tracks the landlord limitation on

damages provision in paragraph (7) for damages resulting from the

breach by the debtor of an employment contract, but limits the

recovery to the compensation reserved under an employment contract

for the year following the earlier of the date of the petition and

the termination of employment.

Subsection (c) requires the estimation of any claim liquidation

of which would unduly delay the closing of the estate, such as a

contingent claim, or any claim for which applicable law provides

only an equitable remedy, such as specific performance. This

subsection requires that all claims against the debtor be converted

into dollar amounts.

Subsection (d) is derived from present law. It requires

disallowance of a claim of a transferee of a voidable transfer in

toto if the transferee has not paid the amount or turned over the

property received as required under the sections under which the

transferee's liability arises.

Subsection (e) also derived from present law, requires

disallowance of the claim for reimbursement or contribution of a

codebtor, surety or guarantor of an obligation of the debtor,

unless the claim of the creditor on such obligation has been paid

in full. The provision prevents competition between a creditor and

his guarantor for the limited proceeds in the estate.

Subsection (f) specifies that ''involuntary gap'' creditors

receive the same treatment as prepetition creditors. Under the

allowance provisions of this subsection, knowledge of the

commencement of the case will be irrelevant. The claim is to be

allowed ''the same as if such claim had arisen before the date of

the filing of the petition.'' Under voluntary petition, proposed 11

U.S.C. 303(f), creditors must be permitted to deal with the debtor

and be assured that their claims will be paid. For purposes of

this subsection, ''creditors'' include governmental units holding

claims for tax liabilities incurred during the period after the

petition is filed and before the earlier of the order for relief or

appointment of a trustee.

Subsection (g) gives entities injured by the rejection of an

executory contract or unexpired lease, either under section 365 or

under a plan or reorganization, a prepetition claim for any

resulting damages, and requires that the injured entity be treated

as a prepetition creditor with respect to that claim.

Subsection (h) gives a transferee of a setoff that is recovered

by one trustee a prepetition claim for the amount recovered.

Subsection (i) answers the nonrecourse loan problem and gives the

creditor an unsecured claim for the difference between the value of

the collateral and the debt in response to the decision in Great

National Life Ins. Co. v. Pine Gate Associates, Ltd., Bankruptcy

Case No. B75-4345A (N.D.Ga. Sept. 16, 1977).

The bill, as reported, deletes a provision in the bill as

originally introduced (former sec. 502(i)) requiring a tax

authority to file a proof of claim for recapture of an investment

credit where, during title 11 proceedings, the trustee sells or

otherwise disposes of property before the title 11 case began. The

tax authority should not be required to submit a formal claim for a

taxable event (a sale or other disposition of the asset) of whose

occurrence the trustee necessarily knows better than the taxing

authority. For procedural purposes, the recapture of investment

credit is to be treated as an administrative expense, as to which

only a request for payment is required.

HOUSE REPORT NO. 95-595

Paragraph (9) (of subsec. (b)) requires disallowance of certain

employment tax claims. These relate to a Federal tax credit for

State unemployment insurance taxes which is disallowed if the State

tax is paid late. This paragraph disallows the Federal claim for

the tax the same as if the credit had been allowed in full on the

Federal return.

-REFTEXT-

REFERENCES IN TEXT

The Federal Rules of Bankruptcy Procedure, referred to in subsec.

(b)(9), are set out in the Appendix to this title.

-MISC2-

AMENDMENTS

1994 - Subsec. (b)(9). Pub. L. 103-394, Sec. 213(a), added par.

(9).

Subsec. (i). Pub. L. 103-394, Sec. 304(h)(1), substituted

''507(a)(8)'' for ''507(a)(7)''.

1986 - Subsec. (b)(6)(A)(ii). Pub. L. 99-554, Sec. 283(f)(1),

substituted ''repossessed'' for ''reposessed''.

Subsec. (g). Pub. L. 99-554, Sec. 257(j), inserted reference to

chapter 12.

Subsec. (i). Pub. L. 99-554, Sec. 283(f)(2), substituted

''507(a)(7)'' for ''507(a)(6)''.

1984 - Subsec. (a). Pub. L. 98-353, Sec. 445(a), inserted

''general'' before ''partner''.

Subsec. (b). Pub. L. 98-353, Sec. 445(b)(1), (2), in provisions

preceding par. (1), inserted ''(e)(2),'' after ''subsections'' and

''in lawful currency of the United States'' after ''claim''.

Subsec. (b)(1). Pub. L. 98-353, Sec. 445(b)(3), substituted

''and'' for '', and unenforceable against''.

Subsec. (b)(3). Pub. L. 98-353, Sec. 445(b)(5), inserted ''the''

after ''exceeds''.

Pub. L. 98-353, Sec. 445(b)(4), struck out par. (3) ''such claim

may be offset under section 553 of this title against a debt owing

to the debtor;'', and redesignated par. (4) as (3).

Subsec. (b)(4). Pub. L. 98-353, Sec. 445(b)(4), redesignated par.

(5) as (4). Former par. (4) redesignated (3).

Subsec. (b)(5). Pub. L. 98-353, Sec. 445(b)(6), substituted

''such claim'' for ''the claim'' and struck out the comma after

''petition''.

Pub. L. 98-353, Sec. 445(b)(4), redesignated par. (6) as (5).

Former par. (5) redesignated (4).

Subsec. (b)(6). Pub. L. 98-353, Sec. 445(b)(4), redesignated par.

(7) as (6). Former par. (6) redesignated (5).

Subsec. (b)(7). Pub. L. 98-353, Sec. 445(b)(7)(A), inserted ''the

claim of an employee'' before ''for damages''.

Pub. L. 98-353, Sec. 445(b)(4), redesignated par. (8) as (7).

Former par. (7) redesignated (6).

Subsec. (b)(7)(A)(i). Pub. L. 98-353, Sec. 445(b)(7)(B),

substituted ''or'' for ''and''.

Subsec. (b)(7)(B). Pub. L. 98-353, Sec. 445(b)(7)(C), (D),

substituted ''any'' for ''the'' and inserted a comma after ''such

contract''.

Subsec. (b)(8), (9). Pub. L. 98-353, Sec. 445(b)(4), redesignated

par. (9) as (8). Former par. (8) redesignated (7).

Subsec. (c)(1). Pub. L. 98-353, Sec. 445(c)(1), inserted ''the''

before ''fixing'' and substituted ''administration'' for

''closing''.

Subsec. (c)(2). Pub. L. 98-353, Sec. 445(c)(2), inserted ''right

to payment arising from a'' after ''any'' and struck out ''if such

breach gives rise to a right to payment'' after ''breach of

performance''.

Subsec. (e)(1). Pub. L. 98-353, Sec. 445(d)(1), (2), in

provisions preceding subpar. (A) substituted '', (b), and (c)'' for

''and (b)'' and substituted ''or has secured'' for '', or has

secured,''.

Subsec. (e)(1)(B). Pub. L. 98-353, Sec. 445(d)(3), inserted ''or

disallowance'' after ''allowance''.

Subsec. (e)(1)(C). Pub. L. 98-353, Sec. 445(d)(4), substituted

''asserts a right of subrogation to the rights of such creditor''

for ''requests subrogation'' and struck out ''to the rights of such

creditor'' after ''of this title''.

Subsec. (h). Pub. L. 98-353, Sec. 445(e), substituted ''522'' for

''522(i)''.

Subsec. (j). Pub. L. 98-353, Sec. 445(f), amended subsec. (j)

generally, inserting provisions relating to reconsideration of a

disallowed claim, and provisions relating to reconsideration of a

claim under this subsection.

EFFECTIVE DATE OF 1994 AMENDMENT

Amendment by Pub. L. 103-394 effective Oct. 22, 1994, and not

applicable with respect to cases commenced under this title before

Oct. 22, 1994, see section 702 of Pub. L. 103-394, set out as a

note under section 101 of this title.

EFFECTIVE DATE OF 1986 AMENDMENT

Amendment by section 257 of Pub. L. 99-554 effective 30 days

after Oct. 27, 1986, but not applicable to cases commenced under

this title before that date, see section 302(a), (c)(1) of Pub. L.

99-554, set out as a note under section 581 of Title 28, Judiciary

and Judicial Procedure.

Amendment by section 283 of Pub. L. 99-554 effective 30 days

after Oct. 27, 1986, see section 302(a) of Pub. L. 99-554.

EFFECTIVE DATE OF 1984 AMENDMENT

Amendment by Pub. L. 98-353 effective with respect to cases filed

90 days after July 10, 1984, see section 552(a) of Pub. L. 98-353,

set out as a note under section 101 of this title.

-SECREF-

SECTION REFERRED TO IN OTHER SECTIONS

This section is referred to in sections 101, 106, 346, 501, 503,

506, 507, 509, 510, 522, 544, 723, 727, 901, 929, 944, 1111, 1114,

1126, 1141, 1228, 1305, 1328 of this title.

-CITE-

11 USC Sec. 503 01/06/03

-EXPCITE-

TITLE 11 - BANKRUPTCY

CHAPTER 5 - CREDITORS, THE DEBTOR, AND THE ESTATE

SUBCHAPTER I - CREDITORS AND CLAIMS

-HEAD-

Sec. 503. Allowance of administrative expenses

-STATUTE-

(a) An entity may timely file a request for payment of an

administrative expense, or may tardily file such request if

permitted by the court for cause.

(b) After notice and a hearing, there shall be allowed

administrative expenses, other than claims allowed under section

502(f) of this title, including -

(1)(A) the actual, necessary costs and expenses of preserving

the estate, including wages, salaries, or commissions for

services rendered after the commencement of the case;

(B) any tax -

(i) incurred by the estate, except a tax of a kind specified

in section 507(a)(8) of this title; or

(ii) attributable to an excessive allowance of a tentative

carryback adjustment that the estate received, whether the

taxable year to which such adjustment relates ended before or

after the commencement of the case; and

(C) any fine, penalty, or reduction in credit relating to a tax

of a kind specified in subparagraph (B) of this paragraph;

(2) compensation and reimbursement awarded under section 330(a)

of this title;

(3) the actual, necessary expenses, other than compensation and

reimbursement specified in paragraph (4) of this subsection,

incurred by -

(A) a creditor that files a petition under section 303 of

this title;

(B) a creditor that recovers, after the court's approval, for

the benefit of the estate any property transferred or concealed

by the debtor;

(C) a creditor in connection with the prosecution of a

criminal offense relating to the case or to the business or

property of the debtor;

(D) a creditor, an indenture trustee, an equity security

holder, or a committee representing creditors or equity

security holders other than a committee appointed under section

1102 of this title, in making a substantial contribution in a

case under chapter 9 or 11 of this title;

(E) a custodian superseded under section 543 of this title,

and compensation for the services of such custodian; or

(F) a member of a committee appointed under section 1102 of

this title, if such expenses are incurred in the performance of

the duties of such committee;

(4) reasonable compensation for professional services rendered

by an attorney or an accountant of an entity whose expense is

allowable under paragraph (3) of this subsection, based on the

time, the nature, the extent, and the value of such services, and

the cost of comparable services other than in a case under this

title, and reimbursement for actual, necessary expenses incurred

by such attorney or accountant;

(5) reasonable compensation for services rendered by an

indenture trustee in making a substantial contribution in a case

under chapter 9 or 11 of this title, based on the time, the

nature, the extent, and the value of such services, and the cost

of comparable services other than in a case under this title; and

(6) the fees and mileage payable under chapter 119 of title 28.

-SOURCE-

(Pub. L. 95-598, Nov. 6, 1978, 92 Stat. 2581; Pub. L. 98-353, title

III, Sec. 446, July 10, 1984, 98 Stat. 374; Pub. L. 99-554, title

II, Sec. 283(g), Oct. 27, 1986, 100 Stat. 3117; Pub. L. 103-394,

title I, Sec. 110, title II, Sec. 213(c), title III, Sec.

304(h)(2), Oct. 22, 1994, 108 Stat. 4113, 4126, 4134.)

-MISC1-

HISTORICAL AND REVISION NOTES

LEGISLATIVE STATEMENTS

Section 503(a) of the House amendment represents a compromise

between similar provisions in the House bill and the Senate

amendment by leaving to the Rules of Bankruptcy Procedure the

determination of the location at which a request for payment of an

administrative expense may be filed. The preamble to section

503(b) of the House bill makes a similar change with respect to the

allowance of administrative expenses.

Section 503(b)(1) adopts the approach taken in the House bill as

modified by some provisions contained in the Senate amendment. The

preamble to section 503(b) makes clear that none of the paragraphs

of section 503(b) apply to claims or expenses of the kind specified

in section 502(f) that arise in the ordinary course of the debtor's

business or financial affairs and that arise during the gap between

the commencement of an involuntary case and the appointment of a

trustee or the order for relief, whichever first occurs. The

remainder of section 503(b) represents a compromise between H.R.

8200 as passed by the House and the Senate amendments. Section

503(b)(3)(E) codifies present law in cases such as Randolph v.

Scruggs, 190 U.S. 533, which accords administrative expense status

to services rendered by a prepetition custodian or other party to

the extent such services actually benefit the estate. Section

503(b)(4) of the House amendment conforms to the provision

contained in H.R. 8200 as passed by the House and deletes language

contained in the Senate amendment providing a different standard of

compensation under section 330 of that amendment.

SENATE REPORT NO. 95-989

Subsection (a) of this section permits administrative expense

claimants to file with the court a request for payment of an

administrative expense. The Rules of Bankruptcy Procedure will

specify the time, the form, and the method of such a filing.

Subsection (b) specifies the kinds of administrative expenses

that are allowable in a case under the bankruptcy code. The

subsection is derived mainly from section 64a(1) of the Bankruptcy

Act (section 104(a)(1) of former title 11), with some changes. The

actual, necessary costs and expenses of preserving the estate,

including wages, salaries, or commissions for services rendered

after the order for relief, and any taxes on, measured by, or

withheld from such wages, salaries, or commissions, are allowable

as administrative expenses.

In general, administrative expenses include taxes which the

trustee incurs in administering the debtor's estate, including

taxes on capital gains from sales of property by the trustee and

taxes on income earned by the estate during the case. Interest on

tax liabilities and certain tax penalties incurred by the trustee

are also included in this first priority.

Taxes which the Internal Revenue Service may find due after

giving the trustee a so-called ''quickie'' tax refund and later

doing an audit of the refund are also payable as administrative

expenses. The tax code (title 26) permits the trustee of an estate

which suffers a net operating loss to carry back the loss against

an earlier profit year of the estate or of the debtor and to obtain

a tentative refund for the earlier year, subject, however, to a

later full audit of the loss which led to the refund. The bill, in

effect, requires the Internal Revenue Service to issue a tentative

refund to the trustee (whether the refund was applied for by the

debtor or by the trustee), but if the refund later proves to have

been erroneous in amount, the Service can request that the tax

attributable to the erroneous refund be payable by the estate as an

administrative expense.

Postpetition payments to an individual debtor for services

rendered to the estate are administrative expenses, and are not

property of the estate when received by the debtor. This situation

would most likely arise when the individual was a sole proprietor

and was employed by the estate to run the business after the

commencement of the case. An individual debtor in possession would

be so employed, for example. See Local Loan v. Hunt, 292 U.S.

234, 243 (1943).

Compensation and reimbursement awarded officers of the estate

under section 330 are allowable as administrative expenses.

Actual, necessary expenses, other than compensation of a

professional person, incurred by a creditor that files an

involuntary petition, by a creditor that recovers property for the

benefit of the estate, by a creditor that acts in connection with

the prosecution of a criminal offense relating to the case, by a

creditor, indenture, trustee, equity security holder, or committee

of creditors or equity security holders (other than official

committees) that makes a substantial contribution to a

reorganization or municipal debt adjustment case, or by a

superseded custodian, are all allowable administrative expenses.

The phrase ''substantial contribution in the case'' is derived from

Bankruptcy Act Sec. 242 and 243 (sections 642 and 643 of former

title 11). It does not require a contribution that leads to

confirmation of a plan, for in many cases, it will be a substantial

contribution if the person involved uncovers facts that would lead

to a denial of confirmation, such as fraud in connection with the

case.

Paragraph (4) permits reasonable compensation for professional

services rendered by an attorney or an accountant of an equity

whose expense is compensable under the previous paragraph.

Paragraph (5) permits reasonable compensation for an indenture

trustee in making a substantial contribution in a reorganization or

municipal debt adjustment case. Finally, paragraph (6) permits

witness fees and mileage as prescribed under chapter 119 (Sec. 2041

et seq.) of title 28.

AMENDMENTS

1994 - Subsec. (a). Pub. L. 103-394, Sec. 213(c), inserted

''timely'' after ''may'' and '', or may tardily file such request

if permitted by the court for cause'' before period at end.

Subsec. (b)(1)(B)(i). Pub. L. 103-394, Sec. 304(h)(2),

substituted ''507(a)(8)'' for ''507(a)(7)''.

Subsec. (b)(3)(F). Pub. L. 103-394, Sec. 110, added subpar. (F).

1986 - Subsec. (b)(1)(B)(i). Pub. L. 99-554, Sec. 283(g)(1),

substituted ''507(a)(7)'' for ''507(a)(6)''.

Subsec. (b)(5). Pub. L. 99-554, Sec. 283(g)(2), inserted ''and''

after ''title;''.

Subsec. (b)(6). Pub. L. 99-554, Sec. 283(g)(3), substituted a

period for ''; and''.

1984 - Subsec. (b). Pub. L. 98-353, Sec. 446(1), struck out the

comma after ''be allowed'' in provisions preceding par. (1).

Subsec. (b)(1)(C). Pub. L. 98-353, Sec. 446(2), struck out the

comma after ''credit''.

Subsec. (b)(2). Pub. L. 98-353, Sec. 446(3), inserted ''(a)''

after ''330''.

Subsec. (b)(3). Pub. L. 98-353, Sec. 446(4), inserted a comma

after ''paragraph (4) of this subsection''.

Subsec. (b)(3)(C). Pub. L. 98-353, Sec. 446(5), struck out the

comma after ''case''.

Subsec. (b)(5). Pub. L. 98-353, Sec. 446(6), struck out ''and''

after ''title;''.

Subsec. (b)(6). Pub. L. 98-353, Sec. 446(7), substituted '';

and'' for period at end.

EFFECTIVE DATE OF 1994 AMENDMENT

Amendment by Pub. L. 103-394 effective Oct. 22, 1994, and not

applicable with respect to cases commenced under this title before

Oct. 22, 1994, see section 702 of Pub. L. 103-394, set out as a

note under section 101 of this title.

EFFECTIVE DATE OF 1986 AMENDMENT

Amendment by Pub. L. 99-554 effective 30 days after Oct. 27,

1986, see section 302(a) of Pub. L. 99-554, set out as a note under

section 581 of Title 28, Judiciary and Judicial Procedure.

EFFECTIVE DATE OF 1984 AMENDMENT

Amendment by Pub. L. 98-353 effective with respect to cases filed

90 days after July 10, 1984, see section 552(a) of Pub. L. 98-353,

set out as a note under section 101 of this title.

-SECREF-

SECTION REFERRED TO IN OTHER SECTIONS

This section is referred to in sections 106, 346, 348, 361, 364,

365, 504, 507, 557, 726, 901, 922, 1114, 1205, 1226, 1228, 1326 of

this title; title 26 section 1398.

-CITE-

11 USC Sec. 504 01/06/03

-EXPCITE-

TITLE 11 - BANKRUPTCY

CHAPTER 5 - CREDITORS, THE DEBTOR, AND THE ESTATE

SUBCHAPTER I - CREDITORS AND CLAIMS

-HEAD-

Sec. 504. Sharing of compensation

-STATUTE-

(a) Except as provided in subsection (b) of this section, a

person receiving compensation or reimbursement under section

503(b)(2) or 503(b)(4) of this title may not share or agree to

share -

(1) any such compensation or reimbursement with another person;

or

(2) any compensation or reimbursement received by another

person under such sections.

(b)(1) A member, partner, or regular associate in a professional

association, corporation, or partnership may share compensation or

reimbursement received under section 503(b)(2) or 503(b)(4) of this

title with another member, partner, or regular associate in such

association, corporation, or partnership, and may share in any

compensation or reimbursement received under such sections by

another member, partner, or regular associate in such association,

corporation, or partnership.

(2) An attorney for a creditor that files a petition under

section 303 of this title may share compensation and reimbursement

received under section 503(b)(4) of this title with any other

attorney contributing to the services rendered or expenses incurred

by such creditor's attorney.

-SOURCE-

(Pub. L. 95-598, Nov. 6, 1978, 92 Stat. 2582.)

-MISC1-

HISTORICAL AND REVISION NOTES

SENATE REPORT NO. 95-989

Section 504 prohibits the sharing of compensation, or fee

splitting, among attorneys, other professionals, or trustees. The

section provides only two exceptions: partners or associates in the

same professional association, partnership, or corporation may

share compensation inter se; and attorneys for petitioning

creditors that join in a petition commencing an involuntary case

may share compensation.

-SECREF-

SECTION REFERRED TO IN OTHER SECTIONS

This section is referred to in section 901 of this title; title

15 section 78fff.

-CITE-

11 USC Sec. 505 01/06/03

-EXPCITE-

TITLE 11 - BANKRUPTCY

CHAPTER 5 - CREDITORS, THE DEBTOR, AND THE ESTATE

SUBCHAPTER I - CREDITORS AND CLAIMS

-HEAD-

Sec. 505. Determination of tax liability

-STATUTE-

(a)(1) Except as provided in paragraph (2) of this subsection,

the court may determine the amount or legality of any tax, any fine

or penalty relating to a tax, or any addition to tax, whether or

not previously assessed, whether or not paid, and whether or not

contested before and adjudicated by a judicial or administrative

tribunal of competent jurisdiction.

(2) The court may not so determine -

(A) the amount or legality of a tax, fine, penalty, or addition

to tax if such amount or legality was contested before and

adjudicated by a judicial or administrative tribunal of competent

jurisdiction before the commencement of the case under this

title; or

(B) any right of the estate to a tax refund, before the earlier

of -

(i) 120 days after the trustee properly requests such refund

from the governmental unit from which such refund is claimed;

or

(ii) a determination by such governmental unit of such

request.

(b) A trustee may request a determination of any unpaid liability

of the estate for any tax incurred during the administration of the

case by submitting a tax return for such tax and a request for such

a determination to the governmental unit charged with

responsibility for collection or determination of such tax. Unless

such return is fraudulent, or contains a material

misrepresentation, the trustee, the debtor, and any successor to

the debtor are discharged from any liability for such tax -

(1) upon payment of the tax shown on such return, if -

(A) such governmental unit does not notify the trustee,

within 60 days after such request, that such return has been

selected for examination; or

(B) such governmental unit does not complete such an

examination and notify the trustee of any tax due, within 180

days after such request or within such additional time as the

court, for cause, permits;

(2) upon payment of the tax determined by the court, after

notice and a hearing, after completion by such governmental unit

of such examination; or

(3) upon payment of the tax determined by such governmental

unit to be due.

(c) Notwithstanding section 362 of this title, after

determination by the court of a tax under this section, the

governmental unit charged with responsibility for collection of

such tax may assess such tax against the estate, the debtor, or a

successor to the debtor, as the case may be, subject to any

otherwise applicable law.

-SOURCE-

(Pub. L. 95-598, Nov. 6, 1978, 92 Stat. 2582; Pub. L. 98-353, title

III, Sec. 447, July 10, 1984, 98 Stat. 374.)

-MISC1-

HISTORICAL AND REVISION NOTES

LEGISLATIVE STATEMENTS

Section 505 of the House amendment adopts a compromise position

with respect to the determination of tax liability from the

position taken in H.R. 8200 as passed by the House and in the

Senate amendment.

Determinations of tax liability: Authority of bankruptcy court to

rule on merits of tax claims. - The House amendment authorizes the

bankruptcy court to rule on the merits of any tax claim involving

an unpaid tax, fine, or penalty relating to a tax, or any addition

to a tax, of the debtor or the estate. This authority applies, in

general, whether or not the tax, penalty, fine, or addition to tax

had been previously assessed or paid. However, the bankruptcy

court will not have jurisdiction to rule on the merits of any tax

claim which has been previously adjudicated, in a contested

proceeding, before a court of competent jurisdiction. For this

purpose, a proceeding in the U.S. Tax Court is to be considered

''contested'' if the debtor filed a petition in the Tax Court by

the commencement of the case and the Internal Revenue Service had

filed an answer to the petition. Therefore, if a petition and

answer were filed in the Tax Court before the title II petition was

filed, and if the debtor later defaults in the Tax Court, then,

under res judicata principles, the bankruptcy court could not then

rule on the debtor's or the estate's liability for the same taxes.

The House amendment adopts the rule of the Senate bill that the

bankruptcy court can, under certain conditions, determine the

amount of tax refund claim by the trustee. Under the House

amendment, if the refund results from an offset or counterclaim to

a claim or request for payment by the Internal Revenue Service, or

other tax authority, the trustee would not first have to file an

administrative claim for refund with the tax authority.

However, if the trustee requests a refund in other situations, he

would first have to submit an administrative claim for the refund.

Under the House amendment, if the Internal Revenue Service, or

other tax authority does not rule on the refund claim within 120

days, then the bankruptcy court may rule on the merits of the

refund claim.

Under the Internal Revenue Code (title 26), a suit for refund of

Federal taxes cannot be filed until 6 months after a claim for

refund is filed with the Internal Revenue Service (sec. 6532(a)

(title 26)). Because of the bankruptcy aim to close the estate as

expeditiously as possible, the House amendment shortens to 120 days

the period for the Internal Revenue Service to decide the refund

claim.

The House amendment also adopts the substance of the Senate bill

rule permitting the bankruptcy court to determine the amount of any

penalty, whether punitive or pecuniary in nature, relating to taxes

over which it has jurisdiction.

Jurisdiction of the tax court in bankruptcy cases: The Senate

amendment provided a detailed series of rules concerning the

jurisdiction of the U.S. Tax Court, or similar State or local

administrative tribunal to determine personal tax liabilities of an

individual debtor. The House amendment deletes these specific

rules and relies on procedures to be derived from broad general

powers of the bankruptcy court.

Under the House amendment, as under present law, a corporation

seeking reorganization under chapter 11 is considered to be

personally before the bankruptcy court for purposes of giving that

court jurisdiction over the debtor's personal liability for a

nondischargeable tax.

The rules are more complex where the debtor is an individual

under chapter 7, 11, or 13. An individual debtor or the tax

authority can, as under section 17c of the present Bankruptcy Act

(section 35(c) of former title 11), file a request that the

bankruptcy court determine the debtor's personal liability for the

balance of any nondischargeable tax not satisfied from assets of

the estate. The House amendment intends to retain these procedures

and also adds a rule staying commencement or continuation of any

proceeding in the Tax Court after the bankruptcy petition is filed,

unless and until that stay is lifted by the bankruptcy judge under

section 362(a)(8). The House amendment also stays assessment as

well as collection of a prepetition claim against the debtor (sec.

362(a)(6)). A tax authority would not, however, be stayed from

issuing a deficiency notice during the bankruptcy case (sec.

(b)(7)) (sec. 362(b)(8)). The Senate amendment repealed the

existing authority of the Internal Revenue Service to make an

immediate assessment of taxes upon bankruptcy (sec. 6871(a) of the

code (title 26). See section 321 of the Senate bill. As indicated,

the substance of that provision, also affecting State and local

taxes, is contained in section 362(a)(6) of the House amendment.

The statute of limitations is tolled under the House amendment

while the bankruptcy case is pending.

Where no proceeding in the Tax Court is pending at the

commencement of the bankruptcy case, the tax authority can, under

the House amendment, file a claim against the estate for a

prepetition tax liability and may also file a request that the

bankruptcy court hear arguments and decide the merits of an

individual debtor's personal liability for the balance of any

nondischargeable tax liability not satisfied from assets of the

estate. Bankruptcy terminology refers to the latter type of

request as a creditor's complaint to determine the dischargeability

of a debt. Where such a complaint is filed, the bankruptcy court

will have personal jurisdiction over an individual debtor, and the

debtor himself would have no access to the Tax Court, or to any

other court, to determine his personal liability for

nondischargeable taxes.

If a tax authority decides not to file a claim for taxes which

would typically occur where there are few, if any, assets in the

estate, normally the tax authority would also not request the

bankruptcy court to rule on the debtor's personal liability for a

nondischargeable tax. Under the House amendment, the tax authority

would then have to follow normal procedures in order to collect a

nondischargeable tax. For example, in the case of nondischargeable

Federal income taxes, the Internal Revenue Service would be

required to issue a deficiency notice to an individual debtor, and

the debtor could then file a petition in the Tax Court - or a

refund suit in a district court - as the forum in which to litigate

his personal liability for a nondischargeable tax.

Under the House amendment, as under present law, an individual

debtor can also file a complaint to determine dischargeability.

Consequently, where the tax authority does not file a claim or a

request that the bankruptcy court determine dischargeability of a

specific tax liability, the debtor could file such a request on his

own behalf, so that the bankruptcy court would then determine both

the validity of the claim against assets in the estate and also the

personal liability of the debtor for any nondischargeable tax.

Where a proceeding is pending in the Tax Court at the

commencement of the bankruptcy case, the commencement of the

bankruptcy case automatically stays further action in the Tax Court

case unless and until the stay is lifted by the bankruptcy court.

The Senate amendment repealed a provision of the Internal Revenue

case barring a debtor from filing a petition in the Tax Court after

commencement of a bankruptcy case (sec. 6871(b) of the code (26

U.S.C. 6871(b))). See section 321 of the Senate bill. As indicated

earlier, the equivalent of the code amendment is embodied in

section 362(a)(8) of the House amendment, which automatically stays

commencement or continuation of any proceeding in the Tax Court

until the stay is lifted or the case is terminated. The stay will

permit sufficient time for the bankruptcy trustee to determine if

he desires to join the Tax Court proceeding on behalf of the

estate. Where the trustee chooses to join the Tax Court

proceeding, it is expected that he will seek permission to

intervene in the Tax Court case and then request that the stay on

the Tax Court proceeding be lifted. In such a case, the merits of

the tax liability will be determined by the Tax Court, and its

decision will bind both the individual debtor as to any taxes which

are nondischargeable and the trustee as to the tax claim against

the estate.

Where the trustee does not want to intervene in the Tax Court,

but an individual debtor wants to have the Tax Court determine the

amount of his personal liability for nondischargeable taxes, the

debtor can request the bankruptcy court to lift the automatic stay

on existing Tax Court proceedings. If the stay is lifted and the

Tax Court reaches its decision before the bankruptcy court's

decision on the tax claim against the estate, the decision of the

Tax Court would bind the bankruptcy court under principles of res

judicata because the decision of the Tax Court affected the

personal liability of the debtor. If the trustee does not wish to

subject the estate to the decision of the Tax Court if the latter

court decides the issues before the bankruptcy court rules, the

trustee could resist the lifting of the stay on the existing Tax

Court proceeding. If the Internal Revenue Service had issued a

deficiency notice to the debtor before the bankruptcy case began,

but as of the filing of the bankruptcy petition the 90-day period

for filing in the Tax Court was still running, the debtor would be

automatically stayed from filing a petition in the Tax Court. If

either the debtor or the Internal Revenue Service then files a

complaint to determine dischargeability in the bankruptcy court,

the decision of the bankruptcy court would bind both the debtor and

the Internal Revenue Service.

The bankruptcy judge could, however, lift the stay on the debtor

to allow him to petition the Tax Court, while reserving the right

to rule on the tax authority's claim against assets of the estate.

The bankruptcy court could also, upon request by the trustee,

authorize the trustee to intervene in the Tax Court for purposes of

having the estate also governed by the decision of the Tax Court.

In essence, under the House amendment, the bankruptcy judge will

have authority to determine which court will determine the merits

of the tax claim both as to claims against the estate and claims

against the debtor concerning his personal liability for

nondischargeable taxes. Thus, if the Internal Revenue Service, or

a State or local tax authority, files a petition to determine

dischargeability, the bankruptcy judge can either rule on the

merits of the claim and continue the stay on any pending Tax Court

proceeding or lift the stay on the Tax Court and hold the

dischargeability complaint in abeyance. If he rules on the merits

of the complaint before the decision of the Tax Court is reached,

the bankruptcy court's decision would bind the debtor as to

nondischargeable taxes and the Tax Court would be governed by that

decision under principles of res judicata. If the bankruptcy judge

does not rule on the merits of the complaint before the decision of

the Tax Court is reached, the bankruptcy court will be bound by the

decision of the Tax Court as it affects the amount of any claim

against the debtor's estate.

If the Internal Revenue Service does not file a complaint to

determine dischargeability and the automatic stay on a pending Tax

Court proceeding is not lifted, the bankruptcy court could

determine the merits of any tax claim against the estate. That

decision will not bind the debtor personally because he would not

have been personally before the bankruptcy court unless the debtor

himself asks the bankruptcy court to rule on his personal

liability. In any such situation where no party filed a

dischargeability petition, the debtor would have access to the Tax

Court to determine his personal liability for a nondischargeable

tax debt. While the Tax Court in such a situation could take into

account the ruling of the bankruptcy court on claims against the

estate in deciding the debtor's personal liability, the bankruptcy

court's ruling would not bind the Tax Court under principles of res

judicata, because the debtor, in that situation, would not have

been personally before the bankruptcy court.

If neither the debtor nor the Internal Revenue Service files a

claim against the estate or a request to rule on the debtor's

personal liability, any pending tax court proceeding would be

stayed until the closing of the bankruptcy case, at which time the

stay on the tax court would cease and the tax court case could

continue for purposes of deciding the merits of the debtor's

personal liability for nondischargeable taxes.

Audit of trustee's returns: Under both bills, the bankruptcy

court could determine the amount of any administrative period

taxes. The Senate amendment, however, provided for an expedited

audit procedure, which was mandatory in some cases. The House

amendment (sec. 505(b)), adopts the provision of the House bill

allowing the trustee discretion in all cases whether to ask the

Internal Revenue Service, or State or local tax authority for a

prompt audit of his returns on behalf of the estate. The House

amendment, however, adopts the provision of the Senate bill

permitting a prompt audit only on the basis of tax returns filed by

the trustee for completed taxable periods. Procedures for a prompt

audit set forth in the Senate bill are also adopted in modified

form.

Under the procedure, before the case can be closed, the trustee

may request a tax audit by the local, State or Federal tax

authority of all tax returns filed by the trustee. The taxing

authority would have to notify the trustee and the bankruptcy court

within 60 days whether it accepts returns or desires to audit the

returns more fully. If an audit is conducted, the taxing authority

would have to notify the trustee of tax deficiency within 180 days

after the original request, subject to extensions of time if the

bankruptcy court approves. If the trustee does not agree with the

results of the audit, the trustee could ask the bankruptcy court to

resolve the dispute. Once the trustee's tax liability for

administration period taxes has thus been determined, the legal

effect in a case under chapter 7 or 11 would be to discharge the

trustee and any predecessor of the trustee, and also the debtor,

from any further liability for these taxes.

The prompt audit procedure would not be available with respect to

any tax liability as to which any return required to be filed on

behalf of the estate is not filed with the proper tax authority.

The House amendment also specifies that a discharge of the trustee

or the debtor which would otherwise occur will not be granted, or

will be void if the return filed on behalf of the estate reflects

fraud or material misrepresentation of facts.

For purposes of the above prompt audit procedures, it is intended

that the tax authority with which the request for audit is to be

filed is, as the Federal taxes, the office of the District Director

in the district where the bankruptcy case is pending.

Under the House amendment, if the trustee does not request a

prompt audit, the debtor would not be discharged from possible

transferee liability if any assets are returned to the debtor.

Assessment after decision: As indicated above, the commencement

of a bankruptcy case automatically stays assessment of any tax

(sec. 362(a)(6)). However, the House amendment provides (sec.

505(c)) that if the bankruptcy court renders a final judgment with

regard to any tax (under the rules discussed above), the tax

authority may then make an assessment (if permitted to do so under

otherwise applicable tax law) without waiting for termination of

the case or confirmation of a reorganization plan.

Trustee's authority to appeal tax cases: The equivalent provision

in the House bill (sec. 505(b)) and in the Senate bill (sec.

362(h)) authorizing the trustee to prosecute an appeal or review of

a tax case are deleted as unnecessary. Section 541(a) of the House

amendment provides that property of the estate is to include all

legal or equitable interests of the debtor. These interests

include the debtor's causes of action, so that the specific

provisions of the House and Senate bills are not needed.

SENATE REPORT NO. 95-989

Subsections (a) and (b) are derived, with only stylistic changes,

from section 2a(2A) of the Bankruptcy Act (section 11(a)(2A) of

former title 11). They permit determination by the bankruptcy court

of any unpaid tax liability of the debtor that has not been

contested before or adjudicated by a judicial or administrative

tribunal of competent jurisdiction before the bankruptcy case, and

the prosecution by the trustee of an appeal from an order of such a

body if the time for review or appeal has not expired before the

commencement of the bankruptcy case. As under current Bankruptcy

Act Sec. 2a (2A), Arkansas Corporation Commissioner v. Thompson,

313 U.S. 132 (1941), remains good law to permit abstention where

uniformity of assessment is of significant importance.

Section (c) deals with procedures for obtaining a prompt audit of

tax returns filed by the trustee in a liquidation or reorganization

case. Under the bill as originally introduced, a trustee who is

''in doubt'' concerning tax liabilities of the estate incurred

during a title 11 proceeding could obtain a discharge from personal

liability for himself and the debtor (but not for the debtor or the

debtor's successor in a reorganization), provided that certain

administrative procedures were followed. The trustee could request

a prompt tax audit by the local, State, or Federal governmental

unit. The taxing authority would have to notify the trustee and

the court within sixty days whether it accepted the return or

desired to audit the returns more fully. If an audit were

conducted, the tax office would have to notify the trustee of any

tax deficiency within 4 months (subject to an extension of time if

the court approved). These procedures would apply only to tax

years completed on or before the case was closed and for which the

trustee had filed a tax return.

The committee bill eliminates the ''in doubt'' rule and makes

mandatory (rather than optional) the trustee's request for a prompt

audit of the estate's tax returns. In many cases, the trustee

could not be certain that his returns raised no doubt about

possible tax issues. In addition, it is desirable not to create a

situation where the taxing authority asserts a tax liability

against the debtor (as transferee of surplus assets, if any, return

to him) after the case is over; in any such situation, the debtor

would be called on to defend a tax return which he did not

prepare. Under the amendment, all disputes concerning these

returns are to be resolved by the bankruptcy court, and both the

trustee and the debtor himself do not then face potential

post-bankruptcy tax liabilities based on these returns. This

result would occur as to the debtor, however, only in a liquidation

case.

In a reorganization in which the debtor or a successor to the

debtor continues in existence, the trustee could obtain a discharge

from personal liability through the prompt audit procedure, but the

Treasury could still claim a deficiency against the debtor (or his

successor) for additional taxes due on returns filed during the

title 11 proceedings.

HOUSE REPORT NO. 95-595

Subsection (c) is new. It codifies in part the referee's

decision in In re Statmaster Corp., 465 F.2d 987 (5th Cir. 1972).

Its purpose is to protect the trustee from personal liability for a

tax falling on the estate that is not assessed until after the case

is closed. If necessary to permit expeditious closing of the case,

the court, on request of the trustee, must order the governmental

unit charged with the responsibility for collection or

determination of the tax to audit the trustee's return or be barred

from attempting later collection. The court will be required to

permit sufficient time to perform an audit, if the taxing authority

requests it. The final order of the court and the payment of the

tax determined in that order discharges the trustee, the debtor,

and any successor to the debtor from any further liability for the

tax. See Plumb, The Tax Recommendations of the Commission on the

Bankruptcy Laws: Tax Procedures, 88 Harv. L. Rev. 1360, 1423-42

(1975).

AMENDMENTS

1984 - Subsec. (a)(2