Wilshire Courtyard

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Case 2:97-bk-10771-PC Doc 76 Filed 08/31/10 Entered 08/31/10 18:42:29 Desc
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AUTHENT
U.S. GOVER
INFORMA

ENTERED
; | AUB 81 200

4 GLeRn U.S. BANKRUP
CENTRALE TSY COURT
{ ay L OSTRICT OF CALIFORNIA

Puty Clerk

In re:
WILSHIRE COURTYARD,
Debtor.

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I. INTRODUCTION

In this partnership case, the chapter
11' plan, confirmed on December 12, 1997,
explicitly provides that the plan does not effect
a sale of the partners’ interests in the
partnership property. Nonetheless, the
California Franchise Tax Board (‘FTB’)
attempts to recharacterize the plan as a sale
of the partnership property at issue, for the

' Unless otherwise indicated, all chapter,
section and rule references are to the
Bankruptcy Code, 11 U.S.C.A. §§ 101-1532
(2010) and to the Federal Rules of Bankruptcy
Procedure, Rules 1001-9036.

CATED
ENT
ION
IPO.

Page 1 of 8
FILED
AUG 3 | 2010

UNITED STATES BANKRUPTCY COURT
CENTRAL DISTRICT OF CALIFORNIA

Case No.: 2:97-bk-10771SB
Chapter 11

OPINION ON
SUMMARY JUDGMENT MOTION

Date: July 20, 2010
Time: 2:00 p.m.
Ctrm: 1575

Floor: 15th

purpose of taxing the partners on the income
generated thereby. The FTB argues (a) that
the court lacks jurisdiction because (i)
bankruptcy court jurisdiction terminates at the
time of plan confirmation, (ii) the debt is a
post-confirmation debt beyond the court’s
jurisdiction, or (iii) the court has no jurisdiction
as to the tax attributes of the non-debtor
partners of the debtor partnership; (b) the FTB
did not receive constitutionally required notice
that its rights would be adversely affected by
the confirmation of the chapter 11 plan.

The court holds that the interests of
the partners are wholly derivative from the
status of the property in the partnership.
In consequence, FTB cannot recharacterize
the plan transactions at the partner level
without recharacterizing them at the

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partnership level as well. Because FTB has
not brought any such recharacterization
application before this court (and cannot
because the statute of limitations has run),
FTB is prohibited by the plan from claiming
that the partners can be taxed on the plan
transactions as a sale generating taxable
income.

ll. RELEVANT FACTS

Prior to filing for bankruptcy on
January 8, 1997, debtor Wilshire Courtyard
operated two Class A commercial office
buildings and a parking garage located in
Los Angeles, California ({collectively, the
“Properties’). Debtor filed this chapter 11 case
on the eve of a scheduled foreclosure by one
of its major secured creditors.

The court confirmed debtor's chapter
11 plan by order entered on April 14, 1998.
Pursuant to the plan, debtor was restructured
from a general partnership into a limited
liability company (the “LLC” or “Reorganized
Debtor”) and continued to own and operate
the Properties. The confirmation order
specifically provided that the plan and the
transactions thereunder “do not provide for,
and when consummated will not constitute,
the liquidation of all or substantially all of the
property of the Debtor's Estate... .”

Thereafter, the case was closed on
October 22, 1998. The case remained closed
for more than a decade, until it was reopened
on June 8, 2009 to resolve this dispute.

The court has issued an order to FTB
requiring it to show cause why it should not be
held in contempt for collaterally attacking and
refusing to comply with the plan confirmation
order. Debtor has moved for summary
judgment.

Ill, ANALYSIS

The FIB- contends’ that the
transactions that occurred under the chapter
11 plan (the “Plan Transactions”) constituted a
sale, in substance if not in form, creating
capital gain as opposed to cancellation of debt
income (“CODI"). The court finds that FTB's
attempted recharacterization of the Plan
Transactions is a collateral attack upon the
confirmation order. In consequence, the court

Page 2 of 8

grants summary judgment to the reorganized
debtor.

A. Subject Matter Jurisdiction

FTB argues that the court lacks
subject matter jurisdiction in this matter
because the dispute arose after confirmation
of the chaper 11 plan. However, though a
bankruptcy court has more limited subject
matter jurisdiction post-confirmation than pre-
confirmation, it retains post-confirmation
subject matter jurisdiction over matters with a
“close nexus” to the bankruptcy case. Jn re
Pegasus Gold Corp., 394 F.3d 1189, 1193-94
(8th Cir. 2005). Matters involving “the
interpretation, implementation, consummation,
execution, or administration of the confirmed
plan will typically have the requisite close
nexus.” /d. at 1194. In this case, the
determination whether FTB's actions violate
the confirmation order involves = an
interpretation of the confirmed plan, and
confers continuing subject matter jurisdiction
on the court after plan confirmation.

Further, a bankruptcy court retains
subject matter jurisdiction to interpret and
enforce its own orders. See Hawaiian Airlines,
Inc. v. Mesa Air Group, inc., 355 B.R. 214,
218 (D. Hawaii 2006) (“The law is clear that
‘[a] bankruptcy court retains post-confirmation
jurisdiction to interpret and enforce its own
orders, particularly when disputes arise over a
bankruptcy plan of reorganization” (citing
Luan Investment S.E. v. Franklin 145 Corp. (in
re Petrie Retail, inc.), 304 F.3d 223, 230 (2nd
Cir. 2002)}). Accordingly, this court retains
subject matter jurisdiction to interpret and
enforce the chapter 11 plan and the
confirmation order.

Finally, FTB argues that the tax issues
only pertain to the non-debtor partners as
opposed to the debtor partnership, and that
this court does not have jurisdiction with
respect to these non-debtors. However,
because this case involves income tax
attributes at the individual partner level that
derive directly from the plan confirmation
order, the court's jurisdiction extends to this
dispute. See United States v. Bayse, 410 U.S.
441, 448 (1973) (holding that partnerships are
individual taxable entities and conduits
through which taxpaying obligations pass to
individual partners). Therefore, to make a

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determination with respect to the income of
non-debtor partners, the court must first
determine the nature of income at the
partnership level. This determination requires
interpretation of the plan and the confirmation
order.

B. California Incorporation of
Relevant Federal Tax Law

In 1998, when the debtor's chapter 11
plan was confirmed, § 346(j)(1} provided:

{je]xcept as otherwise provided in this
subsection, income is not realized by
the estate, the debtor, or a successor
to the debtor by reason of forgiveness
or discharge of indebtedness in a
case under this title.” Pursuant to
§ 346(a),? § 346(j)(1) applies to CODI
for state taxation purposes.

Section 346 (a) incorporates certain
provisions of the Internal Revenue Code
CIRC") inte bankruptcy cases. IRC §
108(a)(1) provides in relevant part:

[g]ross income does not include any
amount which (but for this subsection)
would be includable in gross income
by reason of the discharge {in whole
or in part) of indebtedness of the
taxpayer if... the discharge occurs in
a [bankruptcy] case.

The California Revenue and Taxation
Code ("R&TC"} also incorporates several
relevant provisions of the IRC. Section 17144
incorporates IRC § 108 into California law.
In addition, R&TC was revised in 1991 to
incorporate § 346 into California state law.
See GRANT W. Newton & Rosert LIQUERMAN,
BANKRUPTCY AND INSOLVENCY TAXATION §
8.4(c} (38d ed. 2005).

C. Application of Confirmation
Order to FTB

2 In 1998, § 346(a) provided: “[e]xcept to the
extent otherwise provided in this section,
subsections (b), (c), (d}, (@), (g), (h), (i), and (j)
of this section apply notwithstanding any State
or local law imposing a tax, but subject to the
Internal Revenue Code of 1986.”

Page 3 of 8

The consequences of the confirmation
of a chapter 11 plan are provided in § 1141.
Subsection 1141{a) provides in relevant part:
“the provisions of a confirmed plan bind the
debtor... and any creditor... whether or not
such creditor has accepted the plan.” FTB
tries to evade this result.

1. Notice

FTB argues that it is not bound by the
chapter 11 confirmation order because it did
not receive adequate notice of the chapter 11
bankruptcy case and the plan confirmation.
The court finds this argument without merit.

To avoid being bound by the chapter
11 plan on the grounds of insufficient notice,
FTB must show. that notice was
constitutionally deficient. It is uncontested that
FTB was served with both a_ case
commencement notice and a notice of entry of
the confirmation order.

The due process provisions of the
U.S. Constitution prohibit the denial of
fundamental fairness in bankruptcy
procedures. See, Mullane v. Central Honover
Bank & Trust Co., 339 U.S. 306, 314 (1950);
Joye v. Franchise Tax Board (in re Joye), 578
F.3d 1070, 1079 (9th Cir. 2009}. Notice is
constitutionally adequate if it is “reasonably
calculated, under all the circumstances, to
apprise interested parties of the pendency of
the action and afford them an opportunity to
present their objection.” Espinosa v. United
Student Aid Funds, inc., 553 F.3d 1193, 1202-
03 (Sth Cir. 2008).

Fundamental fairness in the
bankruptcy context does not require that a
creditor receive notice of every event in the
bankruptcy case. It is sufficient to give notice
of the filing of the bankruptcy case. Such
notice puts a creditor “on constructive or
inquiry notice that its claim may be affected,
and it ignores the proceedings to which the
notice refers at its peril.” Joye, 578 F.3d at
1079, quoting Lawrence Tractor Co. v.
Gregory (in re Gregory), 705 F.2d 1118, 1123
(9th Cir. 1983).

In Joye, the court found that the
notice, which is sent to all creditors upon the
filing of a bankruptcy case, gave the FTB (the
same taxing agency involved in this case)
adequate notice that the pending chapter 13

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case may provide for the complete discharge
of the debtor's California taxes. In Gregory,
the court similarly found that the case
commencement notice gave the creditor
sufficient notice that its rights may be affected
by the subsequent chapter 13 plan. Thus,
pursuant to Joye and Gregory, the case
commencement notice alone put FTB on
constructive or inquiry notice that its claim
could be affected by this chapter 11 case.

FTB tries to distinguish Joye by
pointing to the statement in Joye that “[i]f the
creditor had made any inquiry following receipt
of notice, it would have discovered that it
needed to act to protect its interest." Joye,
578 F.3d at 1080. FTB argues that, unlike in
Joye, in this case it would not have been able
to discover that its rights were implicated
based on the notice of commencement of
debtor's bankruptcy case because, at the time
it received the case commencement notice,
debtor had not filed its plan and there were no
documents that would have alerted FTB that
its rights were at issue.*

This argument must be rejected on
two grounds. First, FTB made exactly this
same argument in Joye, and lost on it.
Second, the Ninth Circuit made clear in Joye
that the official notice of the commencement of
the bankruptcy case provided all of the notice
that the FTB was entitled to in a bankruptcy
case, and that no further notice of subsequent
proceedings in the case was constitutionally
required.

Furthermere, FTB received more than
simply the case commencement notice. It was
also served with a notice of entry of the
confirmation order. At that time, FTB could
have examined debtor's plan and confirmation
order to determine whether its interests were
affected thereby. This notice likewise
triggered an obligation to make an inquiry to
determine whether and to what extent its
rights were affected by the reorganization
plan.

Had FTB made such an inquiry,
it could have brought a motion before the court
to rectify any improper er unfair treatment

* In addition, FTB has not presented any
evidence that it made any timely inquiry
whatsoever into the case.

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under the plan. Furthermore, it could have
filed a timely adversary proceeding to set
aside the confirmation order.

Instead of taking such action, FTB
slept on its rights for more than a decade.
Even thereafter, FTB still did not make any
effort to have the confirmation order modified,
and to date has made no such effort.

The court finds that, because FTB
received both the case commencement notice
and a notice of entry of the confirmation order,
the notice provided to FTB was constitutionally
adequate and did not deny FTB its due
process rights.

2. FTB as a Post-Confirmation Creditor

FTB argues it is a post-confirmation
creditor because the “tax liabilities at issue did
not arise until after the Plan was confirmed,”
and thus FTB is not bound by the confirmation
order. FTB relies on Holywell Corp. v. Smith,
503 U.S. 47, 58-59 (1991), which holds that
post-confirmation creditors are not bound by a
confirmed plan. See also 8 COLLIER ON
BANKRUPTCY, J 1141.02[1] (Alan N. Resnick &
Henry J. Sommer eds. 15th ed. rev.) ("A plan
does not bind parties in interest with respect to
postconfirmation claims against the debtor or
the debtor's other relationships.").

The court finds that FTB is not a post-
confirmation creditor within the meaning of
Holywell, The principle of Holywell applies to
debts incurred by a debtor after the
confirmation of the reorganization plan, and
not to creditors in existence at or before
confirmation. FTB's claim clearly arises from
the plan itself, and does not qualify as a post-
confirmation claim. Thus, “where the liability
for the tax was specifically addressed in the
plan and the taxing agency was given notice
of confirmation and did not object, [1141(a}]
bound the taxing agency with respect to taxes
on postconfirmation transactions.” /d. In this
case, the plan itself resulted in the ultimate
transfer of partnership interests to the LLC,
and the confirmation order specified that the
transaction was not a sale of all or
substantially all of the debtor's estate (which
would trigger tax consequences).

Accordingly, even if the plan did not
expressly state tax consequences arising from
the Plan Transactions, it presented tax issues
that the FTB could and should have

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discavered at the time of confirmation. FTB
dees not qualify as a _post-confirmation
creditor and is bound by the confirmation
order.

3. Revocation of the Confirmation Order

Because FTB is bound by the plan, it
is also bound by § 1144, which allows for
revocation of an order of confirmation only
“fo]n request of a party in interest at any time
before 180 days after the date of the entry of
the order of confirmation, and after notice and
a hearing .. . if and only if such order was
procured by fraud.” Ninth Circuit caselaw
makes clear that courts strictly enforce § 1144
and have “no power to extend the time within
which the motion to revoke a confirmation plan
may be made.” See, eg., in re California
Litfunding, 360 B.R. 310, 317 (Bankr. C.D.
Cal. 2007) (citing In Orange Tree Assocs.,
Ltd., 961 F.2d 1445, 1448 (9th Cir. 1992)).

Furthermore, an application to revoke
the confirmation of a reorganization plan can
only be brought through an adversary
proceeding. See Rule 7001(5). FTB did not
bring any objection to the confirmation of the
plan within the 180-day period provided in §
1144. Such an objection is now barred.

D. FTB’s Actions as a
Collateral Attack on the Plan

Because the FTB is bound by the
chapter 41 plan, and because it failed to bring
a timely action for revocation of the plan
confirmation within the allowable period, the
action now taken by FTB in contravention to
the plan is an impermissible collateral attack
on the plan. Debtor contends that FTB
collaterally attacks the plan by
recharacterizing the Plan Transactions as a
disguised sale and by attempting to create
income in violation of §§ 346(a) and (j)(1).

1, Collateral Attack Through Violation
of §§ 346(a) & (j)(1)

The version of § 346(j)(1) that was in
force in 1998 provided that, “[e]xcept as
otherwise provided in this subsection, income
is not realized by the estate, the debtor, or a
successor to the debtor by reason of
forgiveness or discharge of indebtedness in a

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case under this title.” Pursuant to § 346(a),
§ 346(j}(1) applied to CODI for state tax
purposes.

Pursuant to the plan and consistent
with § 346, debtor received CODI but did not
realize the CODI as income. However, FTB
argues in its Audit Issue Presentation Sheet
(‘AIPS’}, that the Plan Transactions
constituted a sale, at least in substance, and
should have been treated by debtor as capital
gain. FTB’s position would change the CODI
into capital gain, which would alter debtor's
characterization of the Plan Transactions that
was adopted in the plan confirmation order.

FTB argues, to the contrary, it is not
attempting to recharacterize the Plan
Transactions. It claims that the plan says
nothing about taxes and that it is not
precluded from determining that the Plan
Transactions were a sale for tax purposes.
FTB argues that a partnership is not a taxable
entity, and only partners incur tax liabilities
fram partnership income. Accordingly, any
CODI would only benefit partners, not the
debtor partnership, which FTB argues would
be contrary to Congress’ intent.

However, California adopted the
taxable entity theory in Linited States v. Bayse,
410 U.S. 441 (1973), which confirms that a
partnership is an independently recognizable
entity for purposes of taxation determinations.
Bayse, 410 U.S. at 448 n.8 (partnership
entities are “conduits through which the
taxpaying obligation passes to the individual
partners in accord with their distributive
shares.”). Because partnerships are
themselves taxable entities, the application of
§ 346(j){1) to debtor partnerships is
appropriate.

2. Collateral Attack Through
Recharacterization of Plan
Transactions at the Partner Level

in the alternative, FTB contends that
its true quarrel is with the tax treatment of the
partners, not the partnership. Specifically,
FTB argues that the partners’ collective
transfer of 99% of their partnership interests to
the LLC should be treated as a taxable sale of
partnership interests. The partners reported
flow-through CODI on their 1998 California
income tax returns but excluded this income
under IRC § 108(a)(1}(D).

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FTB relies on Stackhouse v. United
States, 441 F.2d 465 (5th Cir. 1971), to arque
that the partners should have recognized
income pursuant to IRC §§ 752(b) and
731({a)(1) to the extent that any constructive
distribution of money from the partnership
resulting from CODI exceeded a partner's tax
basis in his partnership interest. The FTB
contends that, even if the partnership does not
recognize CODI, an individual partner may still
be required to recognize the partner's
distributive share of the passed-through CODI.
FTB acknowledges, however, that
Stackhouse was legislatively overturned by
the Bankruptcy Tax Act of 1980 (the “1980
BTA"). See Legislative History of the
Bankruptcy Tax Act of 1980: P.L. 96-589:
94 Stat. 3389: Dec. 24, 1980, n.26. Despite
this acknowledgement, FTB fails to apply
properly the effect of the 1980 BTA to this
case. FTB discusses the basis effects of IRC
§§ 752(b) and 734(a)(1), but does not account
also for the offsetting basis effects of IRC
§§ 702(a) and 705. Footnote 26 to the
legislative history of the 1980 BTA states:
[Income from discharge of a
partnership debt is not excludable at
the partnership level under
amended section 108. Instead, such
income is treated as an item of
income which is allocated
separately to each partner pursuant
to section 702(a) of the Code. This
allocation of an amount of debt
discharge income to a_ partner
results in that partner's basis in the
partnership being increased by such
amount (sec. 705). At the same
time, the reduction in the partner's
share of partnership _ liabilities
caused by the debt discharge
results in a deemed distribution
(under sec. 752), in turn resulting in
a reduction (under sec. 733) of the
partners basis in the partnership.
The section 733 basis reduction .. .
offsets the section 705 basis
increase ....

Accordingly, when there is
cancellation of indebtedness at the partnership
level, the partner's basis is both reduced by
the amount of the debt discharge and
increased by the amount of the

Page 6 of 8

passed-through CODI, creating a complete
offset. Accordingly, there is no realized
taxable income, even at the partner level,
when a partnership does not realize CODI. In
the instant case, debtor did not realize CODI
pursuant to § 346(j)(1). Thus, the partners did
not realize their distributive shares of CODI
with respect to their 1998 taxes.

FTB’s attempt to recharacterize the
transfer of partnership interests to the LLC as
a disguised sale would nullify the effect of the
1980 BTA at the partner level in a CODI
scenario and would ignore the interplay
between § 346 and relevant IRC provisions
allowing debtor to exclude CODI from its
realizable income. Such a recharacterization
constitutes a collateral attack upon the
confirmation order and cannot be permitted.

E. Contempt of Court

Contempt is an appropriate remedy
for violation of a court order. A bankruptcy
court has inherent power to impose sanctions
pursuant to § 105, which authorizes remedies
that are “necessary and appropriate to carry
out provisions of this title.”

FTB argues that it cannot be found in
contempt because there is no court order
mandating that it do anything. This argument
is well taken — contempt is not the appropriate
remedy at this time.

IV. CONCLUSION

This court finds that the Plan
Transactions resulted in discharge of
indebtedness and not a disguised sale
resulting in capital gain. Pursuant to the
taxable entity theory adopted in United States
v. Bayse, 410 U.S. 441 (1973), tax liabilities
are determined at the partnership level and
flow through to individual partners.
Accordingly, Wilshire Courtyard’s CODI was
properly excluded at the partnership level
pursuant to § 346(/)(1), which provides that
CODI is not realized as income in a
bankruptcy case. Further, pursuant to the
1980 BTA, the partners properly excluded the
passed-through CODI from their individual tax
returns. FTB's attempt to recharacterize the
CODI as a disguised sale at either the debtor-
partnership or individual partner level

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constitutes an improper collateral attack upon
the confirmation order.

In consequence, FTB is hereby
ordered to cease its efforts to collect taxes
from debtor or the partners on the claim that
the Plan Transactions constituted a sale.

Dated: i, 31, 2010

L/Bufford
U A fate nkruptcy Judge

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NOTE TO USERS OF THIS FORM:
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