CASE PREVIEW

Supreme Court to consider IRS’s claim on pre-bankruptcy tax payments

When someone makes a payment to a creditor shortly before filing for bankruptcy, the Bankruptcy Code requires the creditor to return the funds. But whether those same obligations apply to the Internal Revenue Service is less clear. On Monday, the justices will consider whether the IRS is protected by sovereign immuinity from the requirement to return funds from insolvent debtors that private creditors face.

The case, United States v. Miller, involves Section 544(b) of the Bankruptcy Code, which allows the bankruptcy trustee to “avoid” – that is, invalidate and recover – “any transfer … that is voidable under applicable law by a creditor holding” a valid claim against the debtor.” The provision usually applies to allow the trustee to recover transfers, often called “fraudulent conveyances,” that a debtor makes shortly before bankruptcy.

The debtor in this case, All Resort Group, Inc., made a payment to the IRS to pay off income taxes owed by its owners about three years before it filed for bankruptcy. Because the company received no value in exchange for those tax payments (which paid debts owed by its owners), and because the company was insolvent at the time, they are the kind of payment covered by Utah’s Uniform Fraudulent Transfers Act. Under that statute, the company typically would have been able to recover the payments either from the IRS (to whom the money was paid) or from the owners (who benefitted from the payments). For what it’s worth, the same thing would be true in most if not all states in the country, as most states have a version of a uniform state law allowing recovery of such payments.

When the company filed for bankruptcy, the trustee in the company’s bankruptcy proceeding, David Miller, filed an action seeking to recover the payments from the IRS. The big problem is that the payment was made to the IRS rather than a private creditor. Because the IRS is entitled to sovereign immunity, creditors could not sue it under the Utah Uniform Fraudulent Transfers Act. Accordingly, the IRS argues to the justices, there is no actual creditor that could have sued the IRS under Utah law. From the IRS’s perspective, the lack of an actual creditor means that it is protected from liability under Section 544(b).

Miller points to Section 106 of the Bankruptcy Code, which includes an explicit waiver of the government’s sovereign immunity in the Bankruptcy Code: “Notwithstanding an assertion of sovereign immunity, sovereign immunity is abrogated as to a governmental unit … with respect to” several sections of the Bankruptcy Code, including Section 544.” To be clear, Section 106(a)(3) specifies that the relief a bankruptcy court can grant against the government includes a “judgment awarding a money recovery,” and Section 101 defines “governmental unit” to include not only the “United States” itself, but also “any “department, agency, or instrumentality of the United States.”

The government’s argument is a purely literalist reading of Section 544(b): Because Section 106 of the Bankruptcy Code would not apply in a state court proceeding under the Utah Fraudulent Conveyance Act, there in fact is no creditor that could have sued the IRS successfully under that statute.

Miller has two powerful arguments against that provision. The first is that it vitiates the explicit reference to Section 544 in Section 106. To say that Congress hasn’t specifically solved this problem when it wrote a statute that specifically mentions Section 544 might seem like a bit much.

Moreover, the history of the provision makes that seem even less likely. In Hoffman v. Connecticut Department of Income Maintenance, the court held that the version of Section 106 in the original Bankruptcy Code was not sufficiently specific to waive sovereign immunity. Congress responded by promptly amending the Bankruptcy Code to include the eminently specific provision from which I quote above. I rather doubt the justices will want to send this back to Congress a second time.

Miller’s second argument – which I find pretty compelling as a reading of the text – points out that the statute only requires that the transfer be “avoidable” by an actual creditor, not that it be recoverable from the government. Here, under Utah law (and typical fraudulent conveyance law), the creditors would be entitled to recover the amount of the challenged transfer not only from the person to whom it was made (the IRS) but also from the persons “for whose benefit” the transfer was made (the owners of the company). Because those owners do not have sovereign immunity, they would have been defendants available in a suit under state law, and thus should make the transfer voidable under Section 544(b).

We’ll have to see how the argument goes – and I rarely am so judgmental in advance – but I would not expect an easy day for the government in Miller.