United States v. 2005-01-11 | 03-16112 | USA VFOWLER | precedential | opinion |

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
 In re: CHELCEY R. FOWLER; In re:
LYNDA FOWLER,
Debtors,
No. 03-16112
UNITED STATES OF AMERICA, D.C. No.
Plaintiff-Appellee, CV-02-00507-CKJ
v. OPINION
CHELCEY R. FOWLER; LYNDA
FOWLER,
Defendants-Appellants. 
Appeal from the United States District Court
for the District of Arizona
Cindy K. Jorgenson, District Judge, Presiding
Argued and Submitted
November 16, 2004—Telephonic Argument
Filed January 12, 2005
Before: Pamela Ann Rymer, Richard C. Tallman, and
Carlos T. Bea, Circuit Judges.
Opinion by Judge Tallman
469

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COUNSEL
Eric Slocum Sparks, Law Offices of Eric Slocum Sparks,
P.C., Tucson, Arizona, for the appellants.
Thomas J. Clark and Ellen Page Delsole, United States
Department of Justice, Tax Division, Washington, D.C., for
the appellee.
OPINION
TALLMAN, Circuit Judge:
The issue in this case is the effect of a conversion from
Chapter 11 to Chapter 13 bankruptcy proceedings on the pri-
ority status of a postpetition, preconversion administrative
expense claim. The Fowlers appeal the district court’s order
reversing the bankruptcy court, and determining that 11
U.S.C. § 348(d) requires that federal employment taxes,
incurred as administrative expenses in operating their nursing
home business after the Fowlers filed for Chapter 11 bank-
ruptcy protection, but before they converted to Chapter 13,
retain their priority status as administrative expenses under 11
U.S.C. § 503(b). We affirm the district court and hold that
such a claim retains its administrative expense priority upon
conversion.
I
In May 1998, Chelcey and Lynda Fowler filed for Chapter
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11 bankruptcy protection. While in Chapter 11, the Fowlers
continued the operation of their adult long-term care facility,
causing the bankruptcy estate to incur additional Federal
Insurance Contribution Act and Federal Unemployment Tax
Act employment tax liabilities and attendant penalties and
interest on those debts. In December 1998, the Internal Reve-
nue Service (IRS) filed a “Request for Payment” of this new
debt as administrative expenses of the estate under §§ 503(a)-
(b) and 507(a)(1).1 The Chapter 11 estate continued to accrue
employment tax liabilities through the fourth quarter of 1999.
During this same period, the IRS amended the Request to
reflect increases to the accumulating debt. The Fowlers did
not file an objection to these Requests.
In May 2001, the Fowlers moved to convert their bank-
ruptcy estate from Chapter 11 to Chapter 13. They stated that
they no longer operated their long-term care facility and were
now employed by others, and thus met Chapter 13 eligibility
requirements. The bankruptcy court granted their conversion
to Chapter 13. In June 2001, after conversion but prior to con-
firmation of the Chapter 13 plan, the IRS filed an amendment
to the December 1998 “Request for Payment” (the “Amended
Request”), to reflect additional interest and penalties which
had accrued while the estate was still proceeding under Chap-
ter 11. The amendment did not reflect any tax liability accru-
ing after the conversion.
The Fowlers argued that the debt evidenced by the
Amended Request should no longer be treated as an adminis-
trative claim, but as a prepetition unsecured priority claim
under § 1305, a special Chapter 13 provision. The bankruptcy
court agreed and held that a tax claim filed during the pen-
dency of a Chapter 13 petition must be prioritized as if the
claim had arisen prepetition because § 1305(b) states that
claims for taxes filed under § 1305(a) are allowed or disal-
1Unless otherwise indicated, all code citations refer to the Bankruptcy
Code, 11 U.S.C. §§ 101-6323.
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lowed “the same as if such claim had arisen before the date
of filing of the petition.” The bankruptcy court noted that fil-
ing a proof of claim under § 1305 is voluntary, and therefore
the IRS could have avoided application of § 1305 by not fil-
ing a claim after the conversion.
The district court reversed and held that such a claim con-
tinued to be an administrative expense because § 348(d) spe-
cifically exempts administrative expenses from prepetition
treatment in a conversion. The district court found that
§ 348(d) is the only section that addresses the issue of admin-
istrative expenses in a conversion from one Chapter to
another and that § 1305 did not apply. The Fowlers subse-
quently filed a motion for rehearing under Fed. Bankr. R.
8015, which the district court denied. They now appeal both
the reversal of the bankruptcy court ruling on the appropriate
priority of the tax liability and the denial of the motion for
reconsideration.
II
[1] As a threshold matter, we must establish that jurisdic-
tion over the Fowlers’ appeal is proper. Under 28 U.S.C.
§ 158(a), we have jurisdiction to hear appeals “from final
judgments, order, and decrees” entered by a district court on
appeal from a bankruptcy court. Because of the unique nature
of bankruptcy proceedings, this court applies a pragmatic
approach to determining finality. Saxman v. Educational
Credit Mgmt. Corp. (In re Saxman), 325 F.3d 1168, 1171 (9th
Cir. 2003); Dawson v. Wash. Mutual Bank (In re Dawson),
390 F.3d 1139, 1145 (9th Cir. 2004).
Two tests have developed in the Ninth Circuit to address
the question of finality for bankruptcy proceedings. See In re
Olshan, 356 F.3d 1078, 1082-83 (9th Cir. 2004). Under Vy-
lene Enters., Inc. v. Naugles, Inc. (In re Vylene Enters., Inc.),
968 F.2d 887, 895-96 (9th Cir. 1992), we apply a four-
pronged test that considers: “(1) the need to avoid piecemeal
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litigation; (2) judicial efficiency; (3) the systemic interest in
preserving the bankruptcy court’s role as the finder of fact;
and (4) whether delaying review would cause either party
irreparable harm.” In re Olshan, 356 F.3d at 1082 (internal
citation omitted). Under Bonner Mall P’ship v. U.S. Bancorp
Mortgage Co. (In re Bonner Mall P’ship), 2 F.3d 899, 904
(9th Cir. 1993), we consider whether the central issue raised
on appeal “is legal in nature and its resolution either (1) could
dispose of the case or proceedings and obviate the need for
factfinding; or (2) would materially aid the bankruptcy court
in reaching its disposition on remand.” In re Olshan, 356 F.3d
at 1082-83 (quoting In re Bonner Mall P’ship, 2 F.3d at 904).
[2] Under either test, the district court order here is suffi-
ciently final for our jurisdiction over this appeal to be proper.
There are no facts in dispute and the remand requires only
that the Chapter 13 plan conform to the legal determination on
priority. Deciding the legal question now would be judicially
efficient, would not interfere with the bankruptcy court’s fact
finding role, and would avoid additional harm to the Fowlers
and their creditors due to the delay in closing the bankruptcy
proceedings. See In re Vylene Enters., 968 F.2d at 895-96.
The bankruptcy proceedings will be controlled by the ques-
tion of law before us regarding the priority of the IRS claim
and deciding the issue now would materially aid the bank-
ruptcy court. See In re Bonner Mall P’ship, 2 F.3d at 904; see
also In re Olshan, 356 F.3d at 1083 (accepting jurisdiction
where the appeal concerned primarily a question of law and
resolution of the question would materially aid the bankruptcy
court’s determination of the extent to which a claim should be
allowed). We therefore hold that we have jurisdiction over the
Fowlers’ appeal.
III
We review de novo the district court’s decision on appeal
from a bankruptcy court. In re Saxman, 325 F.3d at 1172. The
bankruptcy court’s conclusions of law, including interpreta-
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tions of the bankruptcy code, are reviewed de novo and its
factual findings are reviewed for clear error. See Einstein/
Noah Bagel Corp. v. Smith (In re BCE West, L.P.), 319 F.3d
1166, 1170 (9th Cir. 2003). There are no factual questions
before us. The Fowlers do not challenge classification of the
employment tax debt as an administrative expense incurred by
the estate prior to the filing for conversion to a Chapter 13
bankruptcy. The question before us is whether the debt lost its
administrative expense status upon conversion.
The question of status is important because it affects the
priority of the debt in the bankruptcy proceeding. First prior-
ity is granted, inter alia, to administrative expenses of the
bankruptcy estate. See § 507(a)(1). Postpetition tax debt may
constitute an administrative expense if it relates to “any tax
incurred by the estate,” except certain defined taxes not appli-
cable here. § 503(b)(1)(B)(i). The first priority accorded to
administrative expense taxes also extends to interest and pen-
alties that accrue on that debt. See Towers v. United States (In
re Pacific-Atlantic Trading Co.), 64 F.3d 1292, 1298 (9th Cir.
1995); see also United States v. Ledlin (In re Mark Anthony
Constr., Inc.), 896 F.2d 1101, 1104-08 (9th Cir. 1989). A
Chapter 13 confirmation plan must provide that administra-
tive expenses, including penalties and interest, be paid in full
as priority claims. See § 1322(a)(2); see also In re Mark
Anthony Constr., Inc., 886 F.2d at 1106, 1108.
[3] In contrast, a tax which is prepetition and unsecured is
generally given eighth priority. § 507(a)(8). These eighth pri-
ority tax claims are also paid in full over the term of the
Chapter 13 plan but without interest. See generally § 1322(a);
see also In re Dorf, 219 B.R. 498, 501 n.3 (Bankr. N.D. Ill.
1998) (finding that §1322(a)(1) does not require payment of
interest); In re Smith, 196 B.R. 565, 569 (Bankr. M.D. Fla.
1996) (finding that § 1322(a)(2) does not require the payment
of postpetition interest). Therefore, the most important dis-
tinction between administrative expense tax claims and unse-
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cured priority tax claims in Chapter 13 is that the IRS cannot
recover interest on prepetition unsecured priority tax claims.
The district court relied on § 348(d) to hold that postpeti-
tion, preconversion administrative expenses retain their status.
Section 348(d) provides that:
A claim against the estate or the debtor that arises
after the order for relief but before conversion in a
case that is converted under section 1112 . . . , other
than a claim specified in section 503(b) of this title,
shall be treated for all purposes as if such claim had
arisen immediately before the date of the filing of
the petition.
§ 348(d) (emphasis added). A conversion under § 1112
includes conversions from Chapter 11 to Chapters 7, 12, or
13. § 1112(a) and (d).
[4] Other circuits have acknowledged that § 348(d) requires
that § 503(b) administrative expense claims retain their pre-
conversion priority status in conversion under § 1112 from
Chapter 11 to Chapter 7. See, e.g., In re Benjamin Coal Co.,
978 F.2d 823, 827 (3rd Cir. 1992) (“Section 348(d) unques-
tionably would have preserved an administrative claim [ ] if
[the debtor] had possessed an administrative claim at the time
of the conversion to Chapter 7.”); United States v. Ginley (In
re Johnson), 901 F.2d 513, 520 (6th Cir. 1990) (stating that
“we are satisfied that this exception in 348(d) indicates that
administrative expenses maintain their priority status”).
[5] Bankruptcy courts addressing the issue have also deter-
mined that administrative expense status is retained in a con-
version. See, e.g., In re Allen, 67 B.R. 46, 49 (Bankr.
W.D.N.Y. 1986) (determining that postpetition, preconversion
taxes, penalties, and interest that were § 503(b) administrative
expenses retained first priority status in a conversion from
Chapter 11 to Chapter 13); see also In re Blue Ribbon Deliv-
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ery Serv., Inc., 31 B.R. 292, 293 (Bankr. W.D. Ky. 1983)
(holding that “an administrative expense claim for withhold-
ing taxes incurred during the pendency of a Chapter 11 pro-
ceeding retains its character as an administrative expense after
a subsequent conversion to a [Chapter 7] case”).2
[6] The Supreme Court has not spoken clearly on the matter
but has indirectly endorsed this approach. In United States v.
Noland, 517 U.S. 535 (1996), the parties had agreed that
claims for taxes and interest that accrued after a Chapter 11
filing and before conversion to Chapter 7 were entitled to pri-
ority as administrative expenses in the Chapter 7 estate. Id. at
537. The Supreme Court held that the penalties associated
with the tax debt were also postpetition administrative
expenses under §§ 348(d) and 503(b)(1). Id. at 541 n.3
(“Congress has already determined that [a § 503(b) penalty]
is not to be treated like prepetition penalties.”).
[7] The general approach, therefore, has been to interpret
§ 348(d) as preserving administrative expense status upon
conversion from Chapter 11 to Chapter 7 under § 1112(a),
and we see no reason to treat differently administrative
expense priority in a conversion from Chapter 11 to Chapter
13 under § 1112(d). Section 348(d) expressly applies to con-
versions under § 1112 without distinguishing between the var-
ious bankruptcy chapters. While we acknowledge that
2The Fowlers cite several bankruptcy cases for the proposition that the
government may not pursue an administrative expense claim in a Chapter
13 proceeding. See In re Parffrey, 264 B.R. 409, 413-14 (Bankr. S.D. Tex.
2001); In re King, 217 B.R. 623, 625 (Bankr. S.D. Cal. 1998); In re Dixon,
210 B.R. 610, 615 (Bankr. W.D. Okla. 1997); In re Gyulafia, 65 B.R. 913,
915-16 (Bankr. D. Kan. 1986); In re Wright, 66 B.R. 125, 126-27 (Bankr.
D. Kan. 1984). However, these cases all refer to bankruptcy proceedings
which were filed originally as Chapter 13 proceedings, where no conver-
sion occurred, and so are inapplicable in the Fowlers’ case. The Fowlers
rely on one case, In re Hudson, 158 B.R. 670 (Bankr. N.D. Ohio 1993),
that involves a conversion from Chapter 7 to Chapter 13. However, In re
Hudson concerned debtors’ income tax liability, not employment tax
administrative expenses, and so is also inapplicable.
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Chapter 13 bankruptcy may be more generous to debtors than
Chapter 7, this is an insufficient basis for treating debtors dif-
ferently under § 348(d) where no such distinction is made in
the statute. We think that it would be anomalous to treat an
administrative expense in one preconversion Chapter differ-
ently than in another Chapter without clear congressional
intent to do so.
The Fowlers argue that § 1305 supports their position that
conversion to Chapter 13 requires different treatment under
§ 348(d) than conversion to Chapter 7 because there is no
equivalent statute in Chapter 7. Section 1305(a) states that
“[a] proof of claim may be filed by any entity that holds a
claim against the debtor [ ] for taxes that become payable to
a governmental unit while the case is pending[.]” Such a
claim “shall be allowed or disallowed under section 502 of
this title, but shall be determined as of the date such claim
arises, and shall be allowed . . . or disallowed . . . the same
as if such claim had arisen before the date of the filing of the
petition.” § 1305(b). The Fowlers argue that this language
requires any claim for postpetition tax be treated as a prepeti-
tion tax for all purposes. They construe § 1305 as conflicting
with § 348(d) and argue that § 1305 should control because it
is the more specific statute.
We are not persuaded by this argument because we see no
conflict between the two statutes. The language of § 1305
does not govern priority status. Instead, it creates the right
permitting an eligible postpetition creditor to enter into the
Chapter 13 bankruptcy proceeding, in contrast to most postpe-
tition creditors who have no right to enter into an ongoing
bankruptcy plan. The limited effect of § 1305 is evidenced by
the distinction between the statutory language in §§ 348(d)
and 1305(b). Section 348(d) states that a non-section 503(b)
claim arising after the order for relief but before conversion
“shall be treated for all purposes as if such claim had arisen
immediately before the date of the filing of the petition.”
§ 348(d) (emphasis added). Section 1305(b) states only that a
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claim filed under § 1305(a) “shall be determined as of the
date such claim arises, and shall be allowed under section
502(a), 502(b), or 502(c) of this title, or disallowed under
section 502(d) or 502(e) of this title, the same as if such claim
had arisen before the date of the filing of the petition.” Id.
(emphasis added).
By listing the specific subsections to which § 1305(b)
applies, Congress has sufficiently demonstrated its intent that
this provision not have general effect. Section 1305 requires
only what it says — that for purposes of allowing or disallow-
ing a creditor’s claim, the claim is treated as if it arose prepe-
tition. It does not address the statutory treatment of the claim
itself once it has been allowed into the bankruptcy proceed-
ing. A § 1305 claim is not automatically determined as if it
were a prepetition claim for all purposes, and so there is no
conflict with § 348(d). Therefore, the Fowlers’ employment
tax debt retains its administrative expense status.
Finally, the Fowlers argue that the tax debt must be
recharacterized as prepetition because a Chapter 13 estate
cannot be charged with an administrative claim for taxes,
relying on § 346(d) and 26 U.S.C. § 1398. We find this argu-
ment to be without merit. Both of these statutes relate to
income taxes. Section 346(d) provides that in Chapter 13
bankruptcy state or local taxes “imposing a tax on or mea-
sured by income” of the bankruptcy estate or debtor may only
be taxed to the debtor, not to the estate. 26 U.S.C. § 1398 is
a tax provision that controls the treatment of taxpayers in
Chapter 7 and Chapter 11 bankruptcy proceedings for federal
income tax purposes. However, the Fowlers’ tax debt involves
only employment taxes, not income taxes, so neither § 346(d)
nor 26 U.S.C. § 1398 applies here.
[8] We therefore affirm the district court and hold that
§ 348(d) requires that in a conversion under § 1112 from
Chapter 11 to Chapter 7, 12, or 13, section 503(b) expenses
retain their status as postpetition administrative expenses.
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IV
We review for an abuse of discretion the denial of a district
court’s motion for rehearing. See Navajo Nation v. Norris,
331 F.3d 1041, 1046 (9th Cir. 2003) (“Whether or not to grant
reconsideration is committed to the sound discretion of the
court.”).
The Fowlers timely filed a motion for reconsideration of
the district court’s judgment under Fed. R. Bankr. P. 8015,
which grants a party the right to file a motion for rehearing
but does not explicitly provide a standard for granting such a
motion. The district court denied the motion, applying the
review standard applicable to Fed. R. App. P. 40(a)(2), which
requires that a motion for rehearing state with particularity
each point of law or fact that the movant believes the court
has overlooked or misapprehended. The district court con-
cluded that, while Rule 8015 does not explicitly provide a
standard, it was reasonable to apply the federal rule standard
to the bankruptcy rule because the Advisory Committee Notes
to Rule 8015 state that it was an adaptation of Fed. R. App.
P. 40(a).
[9] We affirm the denial of the Rule 8015 motion. The dis-
trict court did not abuse its discretion by looking to a parallel
federal appellate rule for guidance in applying a reasonable
standard to a motion for rehearing. The Fowlers’ argument
that the district court failed to apply “the strict language of
Bankruptcy Rule 8015” to their motion is misplaced, as the
“strict language” of the rule simply does not speak to the
issue. Further, the bankruptcy court itself has applied the Rule
40 standard as the district court did here. See Olson v. United
States, 162 B.R. 831, 834 (Bankr. D. Neb. 1993) (stating that
it is appropriate to look to the appellate rule for guidance
because Rule 8015 was derived from Rule 40); see also, e.g.,
Kosmala v. Imhof (In re Hessco Indus., Inc.), 295 B.R. 372,
375 (B.A.P. 9th Cir. 2003) (citing Olson, 162 B.R. at 834);
Young v. Paramount Comm., Inc. (In re Wingspread Corp.),
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186 B.R. 803, 807 (S.D.N.Y. 1995) (citing Olson, 162 B.R.
at 834). Other bankruptcy courts have applied different stan-
dards,3 but the inquiry here is whether the district court
abused its discretion. The Fowlers fail to demonstrate that the
standard is inapplicable in the bankruptcy context or that an
abuse of discretion occurred.
V
[10] The district court’s remand to the bankruptcy court
was sufficiently final for appellate jurisdiction to attach. We
hold that § 348(d) requires that postpetition employment tax
debt, incurred as an administrative expense of a Chapter 11
bankruptcy estate, retains its first priority administrative
expense status upon conversion to a Chapter 13 bankruptcy
plan. Section 1305 is not in conflict with this holding because
it does not govern the priority of the postpetition claims it
allows into the bankruptcy proceeding. Finally, the district
court did not abuse its discretion by applying the standard of
Fed. R. App. P. 40 to the Fowlers’ Fed. R. Bankr. P. 8015
motion for reconsideration.
AFFIRMED.
3See, e.g., The Shawnee State Bank v. First Nat’l Bank of Olathe (In re
Winders), 202 B.R. 512, 517 (D. Kan. 1996) (“Motions to reconsider
should be granted where: (1) the Court has patently misunderstood a party,
(2) the court has made a decision outside the adversarial issues . . . pre-
sented by the parties, (3) the court has made an error not of reasoning but
of apprehension, or (4) there is a controlling or significant change in the
law or facts since the submission of the issue to the Court.”) (quoting
Above the Belt, Inc. v. Mel Bohannan Roofing, Inc., 99 F.R.D. 99, 101
(E.D. Va. 1983) (ellipses in original).
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