SOUTHERN DISTRICT ANNOUNCES POTENTIAL GAME CHANGER IN FRAUDULENT TRANSFER LITIGATION
By: Michael Tessitore and Jason Del Rosso
When a debtor files a petition for relief under the U.S. Bankruptcy Code, an estate is created by operation of law which comprises all property of the debtor wherever located in the world. 11 U.S.C.A. § 541(a); E.g., In re Aldrich, 250 B.R. 907, 910 (Bankr. W.D. Tenn. 2000). A trustee (or a debtor-in-possession in Chapter 11 cases) is automatically appointed to administer this worldwide estate for the benefit of creditors. The trustee is equipped with “strong arm” powers that allow him to recover property of the estate wherever located and to set aside fraudulent transfers wherever in the world they might have occurred. 11 U.S.C.A. § 544(a); In re French, 440 F.3d 145 (4th Cir. 2006) (setting aside pre-petition fraudulent transfer of real property located in the Bahamas). The power of the trustee in these worldwide recovery efforts was significantly enhanced by the recent decision of the U.S. Bankruptcy Court for the Southern District of Florida in In re Kipnis, No. 14-11370-RAM, 2016 WL 4543772 at *1 (Bankr. S.D. Fla. Aug. 31, 2016). In Kipnis, the court held that the trustee would now enjoy a dramatically extended limitations period, a ten-year period, for bringing certain fraudulent transfer claims in cases where the IRS is a creditor.
Facts and Reasoning of Kipnis
Prior to the commencement of his bankruptcy action, the debtor, Kipnis, claimed losses generated from a business transaction on his personal income tax returns for the years 2000 and 2001. The IRS then informed the debtor that these returns were under investigation. On March 22, 2005, the IRS issued an examination report determining that the returns were significantly deficient. The debtor appealed the examination report in the United States Tax Court, but the court ruled in favor of the IRS in November of 2012. The debtor then filed a Chapter 11 bankruptcy case on January 12, 2014 which was converted to a Chapter 7 case on February 6, 2014. A Chapter 7 bankruptcy trustee was appointed, and the IRS timely filed a proof of claim in the case.
On January 15, 2016, the Trustee filed two adversary complaints alleging that shortly after receiving the 2005 examination report from the IRS, the debtor fraudulently transferred a bank account and real property. The recipient of these transfers filed motions to dismiss the complaints arguing that both complaints were barred by Florida’s four-year statute of limitations which applies to fraudulent transfer claims under § 726.110, Fla. Stat. In response, the Trustee argued that since the IRS was an unsecured creditor in the case, under the language of 11 U.S.C. § 544(b), he could “step into the shoes” of the IRS and enjoy a ten-year limitations period which applies to IRS claims under federal law. To wit, 26 U.S.C. § 6502(a)(1) establishes a ten-year statute of limitations from the date of assessment for the IRS to collect taxes.
In addressing these arguments, the court noted that although the IRS was required to prove claims to avoid fraudulent transfers based on applicable state law (such as Chapter 726, Florida Statutes), the statue of limitations for bringing such claims was governed by federal law. As mentioned above, federal law establishes a ten year statute of limitations from the date of assessment for the IRS to collect taxes, and 26 U.S.C. § 6901(a)(1)(A) provides authority for the IRS to pursue avoidance actions against transferees of taxpayer property. Reading these statutes together, the court concluded that it was clear that “[federal law] allows collection from transferees of the taxpayer ‘subject to the same limitations’ applicable to collection from the taxpayer.” Thus, the court concluded that the IRS has ten years from the date of the tax assessment in question to “look back” and pursue an action to avoid a fraudulent transfer of property.
The court also examined the language of Bankruptcy Code §544(b) which provides:
the trustee may avoid any transfer of an interest of the debtor in property or any obligation incurred by the debtor that is voidable under applicable law by a creditor holding an unsecured claim that is allowable under section 502 of this title or that is not allowable only under section 502(e) of this title (emphasis added).
It was conceded that the IRS was an unsecured creditor in the case with an allowable claim. Based on the foregoing statutory language and the IRS having an allowable claim in the case, the court concluded that the trustee may step into the shoes of the IRS under § 544(b) and utilize the greatly extended ten year limitations period to his advantage. In reaching this holding, the court primarily analyzed two conflicting cases: Ebner v. Kaiser (In re Kaiser), 525 B.R. 697 (Bankr. N.D. Ill. 2014) (holding that a trustee could utilize the IRS’s longer limitations period under § 544(b)) and Wagner v. Ultima Homes, Inc. (In re Vaughn Co.), 498 B.R. 297 (Bankr. D.N.M. 2013) (holding that a trustee could not avail himself of the IRS’s limitations period for § 544(b) purposes)).
In Vaughn, the court held that IRS immunity from state statutes of limitation was a publically held right and one not applicable to bankruptcy trustees because of the doctrine of nullum tempus occurrit regi (meaning “no time runs against the king”). The Vaughn court further explained that while the federal government should not be bound by state statutes of limitation when performing public functions, Congress did not intend to vest this type of sovereign power in a bankruptcy trustee, as such intent would result in unintended and “dramatic change[s] in the law.” The legal reasoning of the Kaiser decision directly contradicted the arguments offered in Vaughn, and was fully adopted by the court in Kipnis in all but one respect (discussed below). The court in Kaiser found that the clear language of § 544(b) imposed no limitation on the meaning of “applicable law” or on the type of unsecured creditor a trustee can choose as a triggering creditor. Moreover, such a “plain meaning” analysis precludes consideration of policy concerns and legislative intent – which was the crux of the reasoning in Vaughn.
While adopting the logic and reasoning found in Kaiser, it is worth noting the Kipnis court declined to endorse the Kaiser court’s conclusion that a broad interpretation of § 544(b) would have minimal policy implications. To the contrary, the Kipnis court opined that perhaps bankruptcy trustees have not “generally realized that this longer reach-back weapon is in their arsenal.” In so stating, the court left open the possibility that such an interpretation of the statute could bring about major changes in existing practice, thus lending credence to the policy concerns espoused in Vaughn.
Kipnis could be a “game changer” in many Chapter 7 bankruptcy cases. The IRS has an allowed claim in a significant percentage of bankruptcy cases, meaning that in a substantial number of cases the trustee will now enjoy a “ten-year” look period for purposes of attacking transfers of property by the debtor as fraudulent. Kipnis, 2016 WL 4543772 at *5. This represents a significant change when compared to the current custom of trustee’s generally applying a four-year “look back” period when analyzing the transfers by the debtor that might be actionable. The decision portends more litigation as more claims are likely to be brought by trustees seeking to recover property worldwide. It also portends more property being brought into bankruptcy estates to be liquidated for the benefit of creditors. The decision could therefore serve as a boon for trustees and creditors engaged in the worldwide asset hunt and as a significant hurdle for debtors who seek to shelter assets or to transfer property for less than fair value.
Michael Tessitore is an A.V. rated attorney with Moran Kidd Lyons & Johnson in Orlando, Florida and a practitioner of international commercial litigation. Mr. Tessitore has served as Chair of International Litigation and Arbitration Committee of the International Law Section of the Florida bar and teaches international litigation and arbitration at the Stetson University College of Law.
Jason Del Rosso is a law clerk for Moran Kidd Lyons & Johnson in Orlando, Florida. He graduated with honors from Florida State University College of Law in 2016, where he served on the Board of the Florida State Law Review.
10/04/2016 at 6:51 AM by morankidd | Categories: Articles