plan of reorganization

On June 16, 2008, the United States Supreme Court issued its decision in Florida Dept. of Revenue v. Piccadilly Cafeterias, Inc., the case involving whether Section 1146(a) of the Bankruptcy Code, which exempts from stamp or similar taxes any asset transfer “under a plan confirmed under section 1129 of the Code,” applies to transfers of assets occurring prior to the actual confirmation of such a plan. The issue has taken on added importance in recent years because so many sales of assets in Chapter 11 bankruptcy cases — including the one in the Piccadilly case — are made through Section 363, well before any plan of reorganization is confirmed.

(For more background on the issue, and the oral argument before the Supreme Court last March, you can read a prior post entitled "What Happened At the Supreme Court Oral Argument In The Section 1146(a) Transfer Tax Exemption Case?")

The Supreme Court’s Holding. In a 7-2 decision written by Justice Clarence Thomas, the Supreme Court held that Section 1146(a) applies only to post-confirmation transfers made under the authority of a confirmed plan of reorganization. Follow the link for a copy of the Supreme Court’s decision. The Court reversed the Eleventh Circuit (opinion below available here), which unlike the Third and Fourth Circuits, had held that pre-confirmation transfers could also be covered by the exemption. The Supreme Court summed up its holding as follows:

The most natural reading of §1146(a)’s text, the provision’s placement within the Code, and applicable substantive canons all lead to the same conclusion: Section 1146(a) affords a stamp-tax exemption only to transfers made pursuant to a Chapter 11 plan that has been confirmed. Because Piccadilly transferred its assets before its Chapter 11 plan was confirmed by the Bankruptcy Court, it may not rely on §1146(a) to avoid Florida’s stamp taxes. Accordingly, we reverse the judgment below and remand the case for further proceedings consistent with this opinion.

Keys To The Decision. In examining the statute and the parties’ arguments, the Supreme Court found Florida’s reading of the statute far more reasonable:

While both sides present credible interpretations of §1146(a), Florida has the better one. To be sure, Congress could have used more precise language—i.e., “under a plan that has been confirmed”—and thus removed all ambiguity. But the two readings of the language that Congress chose are not equally plausible: Of the two, Florida’s is clearly the more natural. The interpretation advanced by Piccadilly and adopted by the Eleventh Circuit—that there must be “some nexus between the pre-confirmation transfer and the confirmed plan” for §1146(a) to apply, 484 F. 3d, at 1304—places greater strain on the statutory text than the simpler construction advanced by Florida and adopted by the Third and Fourth Circuit.

Later, the Court added the following:

Even if we were to adopt Piccadilly’s broad definition of “under,” its interpretation of the statute faces  other obstacles. The asset transfer here can hardly be said to have been consummated “in accordance with” any confirmed plan because, as of the closing date, Piccadilly had not even submitted its plan to the Bankruptcy Court for confirmation. Piccadilly’s asset sale was thus not conducted “in accordance with” any plan confirmed under Chapter 11. Rather, it was conducted “in accordance with” the procedures set forth in Chapter 3—specifically, §363(b)(1). To read the statute as Piccadilly proposes would make §1146(a)’s exemption turn on whether a debtor-in-possession’s actions are consistent with a legal instrument that does not exist—and indeed may not even be conceived of—at the time of the sale. Reading §1146(a) in context with other relevant Code provisions, we find nothing justifying such a curious interpretation of what is a straightforward exemption.

In dismissing another of Piccadilly’s arguments, the Court had occasion to make an interesting comparison between the mechanics of assumption and rejection of executory contracts and the timing of a transfer for Section 1146(a) purposes:

We agree with Bildisco’s commonsense observation that the decision whether to reject a contract or lease must be made before confirmation. But that in no way undermines the fact that the rejection takes effect upon or after confirmation of the Chapter 11 plan (or before confirmation if  pursuant to §365(d)(2)). In the context of §1146(a), the decision whether to transfer a given asset “under a plan confirmed” must be made prior to submitting the Chapter 11 plan to the bankruptcy court, but the transfer itself cannot be “under a plan confirmed” until the court confirms the plan in question. Only at that point does the transfer become eligible for the stamp-tax exemption.

The Court also found that the placement of Section 1146(a) in a subchapter entitled "POSTCONFIMRATION MATTERS" was yet another factor which, while not decisive, helped to undermine Piccadilly’s arguments.

Canon Fodder. The Court next held that even if the statute were ambiguous, which the Court did not expressly decide, two canons of statutory interpretation would compel a decision in favor of Florida’s reading of the statute.

• First, changes were made to Section 1146 as recently as the 2005 amendments to the Bankruptcy Code, and Congress is generally presumed to be aware of judicial interpretations of a statute (here decisions from the Third and Fourth Circuits refusing to apply the exemption to pre-confirmation transfers, both of which predated the Eleventh Circuit’s 2007 decision in Piccadilly) when the statute was revised.
• Second, a federalism canon directs courts to proceed carefully before recognizing an exemption from state taxation that Congress has not clearly expressed. Given Piccadilly’s arguments that the statute was ambiguous, the Court found this canon to be "decisive in this case."
• The Court rejected the canons advanced by Piccadilly, most notably viewing Chapter 11 (and Section 1146) as a remedial statute to be liberally construed to facilitate reorganizations.

The Dissent. Justice Stephen G. Breyer, in a dissent joined by Justice Stevens, focused on "whether the time of the transfer matters." Finding the language of the statute ambiguous, he looked to the policy Congress was trying to implement with the statute. He concluded that Congress would not have "insisted upon temporal limits" in Section 1146(a) since, in his view, "it makes no difference whether a transfer takes place before or after the plan is confirmed."

Other Bloggers Weigh In. For an excellent and entertaining review of the decision, be sure to read Steve Jakubowski’s post on his Bankruptcy Litigation Blog. Hat tip as well to the SCOTUS Blog for first reporting on the decision (and updating its excellent wiki on the case) and to the Delaware Business Bankruptcy Report for its post as well.

Minor Impact On Chapter 11 Cases? Of course, the most immediate impact of the decision is that pre-confirmation Section 363 sales will no longer be exempt from stamp or transfer taxes in any circuit, and those taxes will have to be paid.  What remains to be seen is whether sales will be delayed until plan confirmation in order to take advantage of the Section 1146(a) exemption. Given how many asset sales in Chapter 11 cases these days are conducted at the early stages of a case because of financing limitations and declining asset values, a move to delay those sales until plan confirmation seems unlikely. With an economic downturn upon us, the pressures that have led to the expanded use of Section 363 are not likely to abate, regardless of how attractive a stamp or transfer tax exemption may be.