§ 132.9     Postpetition Claims
Cite as:    Keith M. Lundin, Lundin On Chapter 13, § 132.9, at ¶ ____, LundinOnChapter13.com (last visited __________).
[1]

Neither the Code nor the Rules prescribe a form, timing or procedure for the filing of proof of a postpetition claim.1 The Code contemplates that proofs of claim may be filed by the holders of postpetition claims—§ 1305(a) recites, “A proof of claim may be filed by any entity that holds” a postpetition claim.2 “Proof of claim” is a phrase of art that implicates Official Bankruptcy Form 10.3 Unfortunately, neither Official Bankruptcy Form 10 nor its notes reference the filing of a postpetition claim under § 1305. Postpetition claim holders are probably safe to use Official Bankruptcy Form 10 but might alter the caption to make it clear that proof is filed for a “postpetition claim.”

[2]

Section 1305(b) provides (with immaterial exception) that “a claim filed under [§ 1305(a)] shall be allowed or disallowed under § 502 . . . the same as if such claim had arisen before the date of the filing of the petition.”4 Arguably, bankruptcy courts must follow § 1305(b) to § 502 and then to Bankruptcy Rule 3002 to determine the allowance of a filed postpetition claim.

[3]

The cross-reference in § 1305(b) to § 502 captures the definition of “timely” in § 502(b)(9) for claims of governmental units in Chapter 13 cases filed after October 22, 1994. If applied literally, governmental units that hold postpetition claims can timely file a proof only within the 180-day period (plus possible additions for tax claims) in § 502(b)(9). There is no other time provided in the Federal Rules of Bankruptcy Procedure for the filing of a postpetition claim by a governmental unit or any other postpetition creditor. Would a postpetition claim filed by a governmental unit more than 180 days after the petition be disallowed under § 502(b)(9) in a Chapter 13 case filed after October 22, 1994? There is nothing in the legislative history to the 1994 Act contemplating this interaction between § 1305(b) and new § 502(b)(9). Are these two sections of the Code inconsistent?

[4]

Detailed elsewhere,5 the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 (BAPCPA)6 amended § 502(b)(9) to allow governmental units holding tax claims an additional 60 days in which to file a timely proof of claim when the debtor files a tax return required by new § 1308.7 The 60 days added by BAPCPA is measured from the date that the debtor files a tax return required by § 1308. Section 1308(a) creates a new debtor obligation to file tax returns “for all taxable periods ending during the 4-year period ending on the date of the filing of the petition.”8 It is likely that most taxes due for any taxable period ending during the four years before a Chapter 13 petition will be prepetition debts and will be subject to the ordinary rules for filing proofs of claim with respect to prepetition taxes.

[5]

However, § 1305(a) defines as a postpetition claim “taxes that become payable to a governmental unit while the case is pending.”9 There is a split of authority whether the phrase “becomes payable” in § 1305(a)(1) includes taxes for a tax year ending before the petition but with respect to which no return is yet due.10 The 60-day additional period for the filing of certain tax claims in § 502(b)(9), as amended by BAPCPA, could overlap the filing of postpetition claims under § 1305(a) if a tax becomes payable to a governmental unit while the Chapter 13 case is pending with respect to a taxable period ending during the four years before the date of the petition. If so construed, § 502(b)(9), as amended by BAPCPA, could define “timely” for the (narrow) class of tax claims that “become payable” after the petition when the debtor files a return required by new § 1308.11

[6]

Bankruptcy Rule 3002(c)(1) was amended, effective December 1, 2008, to add the additional 60-day time period for a governmental unit to timely file proof of a claim “resulting from a tax return filed under § 1308.”12 The bankruptcy court may enlarge the time for a governmental unit to file a proof of claim upon motion made before expiration of the period for filing a timely proof of claim. If a claim “resulting from” a tax return filed under § 1308 “becomes payable” after the petition, that claim could be a postpetition claim under § 1305, and Bankruptcy Rule 3002(c)(1) as amended could define “timely” for the filing of that claim.

[7]

These possibilities demonstrate that Bankruptcy Rule 3002 was not drafted with postpetition claims in mind. The “creditor” referred to in Bankruptcy Rule 3002(a) is an “entity that has a claim against the debtor that arose at the time of or before the order for relief concerning the debtor.”13 Postpetition claim holders described in § 1305 are not creditors with prepetition claims who “must file a proof of claim” under Bankruptcy Rule 3002(a). But § 1305(b) instructs that the usual rules for claims allowance are applied to postpetition claims, and Bankruptcy Rule 3002 is certainly part of that process.

[8]

The 90-day and 180-day (plus possible additions) timeliness definitions in Bankruptcy Rule 3002(c) work only with respect to postpetition claims incurred early in a Chapter 13 case. Bankruptcy Rule 3002(c)(3) creates a 30-day window after a judgment becomes final for the filing of proofs of unsecured claims that “arise in favor of an entity or become allowable as a result of a judgment.” This rule is not much help because postpetition claims rarely arise or become allowable as a result of a judgment; rather, postpetition claims arise because the debtor fails to pay taxes or incurs a consumer debt for property or services necessary for the debtor’s performance under the plan.14

[9]

If applied to the filing of postpetition claims, Bankruptcy Rule 3002(c) would preclude the timely filing of proof of any (unsecured?)15 postpetition claim that arises after 90 days after the first date set for the meeting of creditors (180 days plus possible additions after the petition for governmental units). Section 1305 contemplates that a postpetition claim may arise in a Chapter 13 case at any time while the case is pending. It would be inconsistent with § 1305 to apply Bankruptcy Rule 3002(c) in a way that precludes the allowance of many postpetition claims. The rule makers should step in and define timely for the filing of postpetition claims in Chapter 13 cases.

[10]

There are no reported decisions fixing a deadline for the timely filing of a postpetition claim. An argument can be made that proof of a postpetition claim would be timely if filed at any time before completion of payments under the plan. Modification of the plan is possible until completion of payments;16 no discharge will have been entered;17 and management of the postpetition claim may still be possible through the plan. Many courts hold that the holder of a postpetition claim is under no obligation to file proof of its claim and can control discharge of the claim by refusing to file a proof of claim.18 If the holder of a postpetition claim can decline altogether to file, it is logical that the claim holder can choose to file a proof of claim at any time while the case is pending and before completion of payments under the plan.

[11]

The absence of useful rules for the filing of proof of a postpetition claim is not benign. The characterization and timeliness of filing of postpetition claims affects the rights of creditors in Chapter 13 cases filed before and after the 1994 Act.

[12]

As detailed elsewhere,19 in Chapter 13 cases filed before October 22, 1994, taxes might have been ordinary prepetition priority claims under (former) § 507(a)(7),20 taxes might have been administrative expenses under (former) § 503(b)(1)(B)21 and taxes might have been postpetition claims under § 1305(a)(1). The proper characterization would determine whether the tax debt was subject to the 90-day limit for filing proofs of claim in (former) Bankruptcy Rule 3002(c), whether the claim holder must file a request for payment of an administrative expense under (former) § 503(a) or whether the claimant could file proof of a postpetition claim consistent with § 1305(a) and (b). If the tax claimant picked the wrong procedure and filed at the wrong time, the right to payment was impaired or defeated.

[13]

In Chapter 13 cases filed after October 22, 1994, taxes may be ordinary prepetition priority claims under § 507(a)(8),22 taxes incurred by the estate may be administrative expenses under § 503(b)(1)(B) and taxes may be postpetition claims under § 1305(a)(1). Because most tax claims are held by governmental units, in cases filed after October 22, 1994, § 502(b)(9) defines timely filing for proofs of claim as “before 180 days after the date of the order for relief or such later time as the Federal Rules of Bankruptcy Procedure may provide.” In cases filed on or after October 17, 2005, a claim of a governmental unit for a tax with respect to a required return filed under new § 1308 can be timely filed on or before 60 days after the date on which that return is filed.23 The 180-day filing deadline (with potential additions) arguably applies if the governmental unit’s tax claim is characterized as a priority claim under § 507(a)(8). As discussed above, § 502(b)(9) doesn’t work very well to define timely filing for a tax claim characterized as a postpetition claim under § 1305(a). If the tax claim is an administrative expense, § 503(a) provides “an entity may timely file a request for payment of an administrative expense, or may tardily file such request if permitted by the court for cause.”24 Timeliness for the filing of a request for payment of an administrative expense is defined by the Bankruptcy Rules only at conversion from Chapter 13 to Chapter 7.25 Section 503(b)(1)(D), added by BAPCPA in 2005, excuses a governmental unit from any obligation to file a request for an administrative expense related to a postpetition tax incurred by the estate—rendering timeliness irrelevant for that even narrower subclass of postpetition taxes.26 There is no good purpose served by this convoluted treatment of the time for filing tax claims and administrative expense requests in Chapter 13 cases.

[14]

Perhaps the Chapter 13 plan itself could define “timely” for the filing of postpetition claims under § 1305(a). Or the debtor faced with a postpetition debt might move the bankruptcy court to fix a deadline for the filing of postpetition claims. A provision modeled on Bankruptcy Rule 3002—90 days from the date the postpetition debt was incurred (180 days plus possible additions for a governmental unit)—might be appropriate.

[15]

Debtors typically want to manage postpetition claims through the plan. If the debtor incurs a debt that would be allowable as a postpetition claim, moving the bankruptcy court for an order fixing a deadline for the filing of proofs of claim under § 1305 tells the debtor whether the claim will be paid through the plan or whether the claim will have to be dealt with in some other way. Even if the court fixes a deadline for the filing of § 1305 claims, the debtor cannot force the postpetition claim holder to file a proof of claim,27 and the claim may escape discharge.28 However, an order fixing the deadline will at least force the postpetition claim holder to decide whether to file a proof of claim and will give the debtor as much flexibility as is possible in planning for payment of the claim. With perhaps one narrow exception,29 no provision of the Rules or Code permits the debtor to file a proof of claim on behalf of a postpetition claim holder.30


 

1  See §§ 302.1 [ Postpetition Claims ] § 137.1  Postpetition Claims before BAPCPA and 524.1 [ Postpetition Claims ] § 137.2  Postpetition Claims after BAPCPA for discussion of postpetition claims.

 

2  11 U.S.C. § 1305(a). Contrast this language with, for example, the language of § 503, which permits the filing of “a request for payment of an administrative expense.” 11 U.S.C. § 503(a) (emphasis added).

 

3  See §§ 272.1 [ Official Bankruptcy Form 10 and Variations ] § 131.1  Official Bankruptcy Form 410 and Variations and 507.1 [ New Official Form 10 ] § 131.2  Official Form 410 after BAPCPA.

 

4  11 U.S.C. § 1305(b). See § 302.1 [ Postpetition Claims ] § 137.1  Postpetition Claims before BAPCPA.

 

5  See §§ 276.1 [ Governmental Units ] § 132.3  Governmental Units, 279.1 [ Priority Claims, Including Requests for Payment of Administrative Expenses ] § 132.6  Priority Claims, Including Requests for Payment of Administrative Expenses, 508.1 [ New Timing Issues ] § 133.5  Tax Claim Exception after BAPCPA and 513.1 [ Taxes ] § 136.3  Taxes after BAPCPA.

 

6  Pub. L. No. 109-8, 119 Stat. 23 (2005).

 

7  11 U.S.C. § 502(b)(9), as amended by Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 (BAPCPA), Pub. L. No. 109-8, 119 Stat. 23 (2005), discussed in §§ 508.1 [ New Timing Issues ] § 133.5  Tax Claim Exception after BAPCPA and 513.1 [ Taxes ] § 136.3  Taxes after BAPCPA.

 

8  11 U.S.C. § 1308(a), discussed in §§ 391.1 [ Tax Return Duties One Day before First Scheduled Meeting of Creditors ] § 42.6  Tax Return Duties One Day before First Scheduled Meeting of Creditors and 524.1 [ Postpetition Claims ] § 137.2  Postpetition Claims after BAPCPA.

 

9  11 U.S.C. § 1305(a)(1) (emphasis added), discussed in §§ 302.1 [ Postpetition Claims ] § 137.1  Postpetition Claims before BAPCPA and 524.1 [ Postpetition Claims ] § 137.2  Postpetition Claims after BAPCPA.

 

10  See §§ 302.1 [ Postpetition Claims ] § 137.1  Postpetition Claims before BAPCPA and 524.1 [ Postpetition Claims ] § 137.2  Postpetition Claims after BAPCPA. See, e.g., Joye v. Franchise Tax Bd. (In re Joye), 578 F.3d 1070 (9th Cir. 2009) (Wallace, Thomas, Graber) (Following Dixon v. IRS (In re Dixon), 218 B.R. 150 (B.A.P. 10th Cir. 1998), and rejecting United States v. Ripley (In re Ripley), 926 F.2d 440 (5th Cir. 1991), state income taxes for 2000 are “payable” prepetition for purposes of § 1305(a)(1) in a Chapter 13 case filed on March 7, 2001.).

 

11  See §§ 302.1 [ Postpetition Claims ] § 137.1  Postpetition Claims before BAPCPA and 524.1 [ Postpetition Claims ] § 137.2  Postpetition Claims after BAPCPA.

 

12  Fed. R. Bankr. P. 3002(c)(1), as amended effective December 1, 2008.

 

13  11 U.S.C. § 101(10)(A) (emphasis added).

 

14  See §§ 302.1 [ Postpetition Claims ] § 137.1  Postpetition Claims before BAPCPA and 524.1 [ Postpetition Claims ] § 137.2  Postpetition Claims after BAPCPA.

 

15  See § 280.1 [ Secured Claim Holders ] § 132.7  Secured Claim Holders.

 

16  See § 253.1 [ Standing, Timing and Procedure ] § 126.1  Standing, Timing and Procedure.

 

17  This will be true unless the debtor is entitled to a hardship discharge before completion of payments under the plan. See §§ 343.1 [ Timing and Procedure for Discharge and Objecting to Discharge ] § 156.1  Timing and Procedure for Discharge and Objecting to Discharge and 352.1 [ In General ] § 160.1  In General354.1 [ Exceptions to Hardship Discharge ] § 160.6  Exceptions to Hardship Discharge before BAPCPA.

 

18  See §§ 302.1 [ Postpetition Claims ] § 137.1  Postpetition Claims before BAPCPA, 350.1 [ Postpetition Claims ] § 158.6  Postpetition Claims and 524.1 [ Postpetition Claims ] § 137.2  Postpetition Claims after BAPCPA. See, e.g., Centurytel of Nw. Ark., LLC v. Laymon (In re Laymon), 360 B.R. 902 (Bankr. E.D. Ark. 2007) (Postpetition claim could not be involuntarily included in amended plan and discharged since only postpetition creditor may file proof of claim.); In re Grant, No. 02-50320-BKC-RBR, 2005 WL 3190348, at *2 (Bankr. S.D. Fla. Apr. 25, 2005) (unpublished) (Ray) (To include postpetition creditors in plan, claim holder must file proof of claim or debtor may obtain written consent to add creditor to modified plan. “The written consent or filed proof of claim is necessary as it is among other things the creditor’s consent to the reimposition of the automatic stay.”); In re Seyden, 294 B.R. 418, 419–20 (Bankr. S.D. Ga. 2002) (Chapter 13 debtor has no standing to file a claim for 2001 taxes in a Chapter 13 case filed in December 2001. “Debtor has no standing to file a post-petition claim for her 2001 tax shortfall . . . . Because Section 1305 grants the right to file post-petition claims only to claimholders, not to Chapter 13 debtors, Debtor has no standing to file her post-petition tax claim over the IRS objection. . . . Because subsection (b) of § 1305 expressly states that § 502 applies to claims filed in accordance with subsection (a) of § 1305 . . . there is no indication that the drafters intended debtors to have the option of filing such claims.”); In re Sims, 288 B.R. 264, 268 (Bankr. M.D. Ala. 2003) (Medical services are postpetition claims allowable under § 1305(a)(2) if the claim holder elects to file a postpetition claim; postpetition claim holder can elect not to file a claim, waive participation in the plan and collect from the debtor after the Chapter 13 case is completed. “[T]he post-petition creditor, and not the debtor, controls whether to file a proof of claim for the post-petition debt. . . . Having determined that section 1305(a) gives the post-petition creditor the election of whether to participate in a previously confirmed Chapter 13 plan, the debtors cannot attempt to force these creditors into the confirmed plan by seeking an order adding the debts to the plan and requiring the creditors to file a claim within a specified period of time.”); In re Wilkoff, No. 98-34354DWS, 2001 WL 91624, at *7 (Bankr. E.D. Pa. Jan. 24, 2001) (unpublished) (“Under § 1305(a)(1), any entity that holds a claim for ‘taxes that become payable to a governmental unit while the case is pending’ has the option of filing a proof of claim in the debtor’s bankruptcy case. . . . The option belongs exclusively to the holder of such a claim; the debtor may not force the holder to file a proof of claim and may not file a proof of claim on the holder’s behalf.”); United States v. Beane (In re Beane), No. 1-96-03487, 2000 WL 33180213 (Bankr. M.D. Pa. Nov. 29, 2000) (unpublished) (Tax creditor holding a § 1305 claim has option to file a claim or proceed directly against the debtor; debtor cannot file a claim on the postpetition tax creditor’s behalf.).

 

19  See §§ 279.1 [ Priority Claims, Including Requests for Payment of Administrative Expenses ] § 132.6  Priority Claims, Including Requests for Payment of Administrative Expenses, 292.1 [ Taxes ] § 136.2  Taxes before BAPCPA and 302.1 [ Postpetition Claims ] § 137.1  Postpetition Claims before BAPCPA.

 

20  11 U.S.C. § 507(a)(7), redesignated as 11 U.S.C. § 507(a)(8) by Bankruptcy Reform Act of 1994, Pub. L. No. 103-394, § 304, 108 Stat. 4106 (1994).

 

21  11 U.S.C. § 503(b)(1)(B) (prior to 1994 amendment).

 

22  11 U.S.C. § 507(a)(8), as redesignated by Bankruptcy Reform Act of 1994, Pub. L. No. 103-394, § 304, 108 Stat. 4106 (1994). See § 292.1 [ Taxes ] § 136.2  Taxes before BAPCPA.

 

23  11 U.S.C. § 502(b)(9), as amended by Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 (BAPCPA), Pub. L. No. 109-8, 119 Stat. 23 (2005), discussed in §§ 276.1 [ Governmental Units ] § 132.3  Governmental Units, 508.1 [ New Timing Issues ] § 133.5  Tax Claim Exception after BAPCPA and 513.1 [ Taxes ] § 136.3  Taxes after BAPCPA.

 

24  11 U.S.C. § 503(a).

 

25  See Fed. R. Bankr. P. 1019(6), discussed in §§ 279.1 [ Priority Claims, Including Requests for Payment of Administrative Expenses ] § 132.6  Priority Claims, Including Requests for Payment of Administrative Expenses and 314.1 [ On Postpetition Claims ] § 142.5  On Postpetition Claims.

 

26  11 U.S.C. § 503(b)(1)(D), as amended by Bankruptcy Abuse Prevention and Consumer Protection Act of 2005, Pub. L. No. 109-8, 119 Stat. 23 (2005), discussed in §§ 279.1 [ Priority Claims, Including Requests for Payment of Administrative Expenses ] § 132.6  Priority Claims, Including Requests for Payment of Administrative Expenses, 292.1 [ Taxes ] § 136.2  Taxes before BAPCPA and 513.1 [ Taxes ] § 136.3  Taxes after BAPCPA.

 

27  See § 302.1 [ Postpetition Claims ] § 137.1  Postpetition Claims before BAPCPA.

 

28  See § 350.1 [ Postpetition Claims ] § 158.6  Postpetition Claims.

 

29  See §§ 285.1 [ Timing, Form, Superseding and Amended Claims ] § 134.1  Timing, Form, Superseding and Amended Claims before 2005, 292.1 [ Taxes ] § 136.2  Taxes before BAPCPA and 302.1 [ Postpetition Claims ] § 137.1  Postpetition Claims before BAPCPA. See, e.g., In re Flores, 270 B.R. 203, 208 (Bankr. S.D. Tex. 2001) (Under § 502(i), a claim that arises after the Chapter 13 petition for a tax entitled to priority under § 507(a)(8) is filed and allowed as if it were a prepetition claim; §§ 501(c), 501(d) and 502(i) are reconciled with § 1305 by limiting the debtor’s power to file a proof of claim under § 501(c) for sales taxes that arise after the commencement of the case to taxes on prepetition activity with respect to which the taxing authority has not filed a proof of claim within the 180 days in § 502(b)(9). Chapter 13 petition was filed on August 31, 1999. Debtor owed sales taxes for third quarter 1999 and all postpetition quarters. Debtor filed proof of claim on behalf of the taxing authority and moved to modify plan to pay postpetition sales taxes through the plan. State objected. “Bankruptcy Code sections 501(c) & (d) and § 502(i) provide that a claim for sale taxes that arises postpetition ‘may be filed . . . the same as if such claim . . . had arisen before the date of the filing of the petition’ . . . . [W]ith respect to § 507(a)(8) sales tax liability in chapter 13 cases, . . . [t]he Debtor may file a proof of claim for the taxing authority if (i) the claim arises postpetition . . . (ii) the claim is related to prepetition activity, and (iii) the taxing authority has not filed a claim within the deadline for filing a governmental claim. However, the debtor may not file a claim on behalf of a taxing authority with respect to postpetition claims. A postpetition claim, with respect to § 507(a)(8) sales tax liability in chapter 13 cases, is a liability that arises postpetition and relates only to postpetition activity.”).

 

30  See §§ 285.1 [ Timing, Form, Superseding and Amended Claims ] § 134.1  Timing, Form, Superseding and Amended Claims before 2005 and 302.1 [ Postpetition Claims ] § 137.1  Postpetition Claims before BAPCPA.