§ 43.7     Holding Open the Meeting of Creditors
Cite as:    Keith M. Lundin, Lundin On Chapter 13, § 43.7, at ¶ ____, LundinOnChapter13.com (last visited __________).
[1]

BAPCPA imposes on Chapter 13 debtors many new duties to file and provide tax returns.1 One entirely new section, § 1308, mandates—by not later than the day before the first date set for the meeting of creditors—that all Chapter 13 debtors must file with the appropriate taxing authorities all tax returns for all taxable periods ending during the four years before the petition.2 If all tax returns required by new § 1308(a) are not filed by the day before the first date scheduled for the meeting of creditors, new § 1308(b)(1) contains an unusual provision empowering the trustee to “hold open that meeting” for a reasonable time to allow the debtor to file the unfiled returns.3

[2]

The concept of holding open a meeting of creditors is new to the Bankruptcy Code, and empowering the Chapter 13 trustee to do it is also unique. Under § 341(a) and (b) and Bankruptcy Rule 2003, the U.S. trustee convenes and presides at the meeting of creditors in a Chapter 13 case.4 Bankruptcy Rule 2003(e) contemplates that the U.S. trustee may “adjourn” the meeting of creditors from time-to-time by announcement at the meeting and without further written notice.5 Section 1308(b)(1) empowers “the trustee” to hold open the meeting of creditors. There is no reference to the U.S. trustee or to the Bankruptcy Administrator in § 1308.

[3]

Holding open has attributes different from adjournment discussed in Bankruptcy Rule 2003(e). Detailed elsewhere,6 there are serious consequences when a Chapter 13 debtor fails to file tax returns required by § 1308(a) by the close of a meeting of creditors that has been held open by the trustee under § 1308(b)(1). It is important that the hold open period is clearly defined and that debtors and other parties in interest can determine the hold open period from a public record. Something more than an announcement at the § 341 meeting is indicated. At this writing, there is no Interim Rule defining how a Chapter 13 trustee will hold open a meeting of creditors or what filings or other documentation will be required.

[4]

When a Chapter 13 meeting of creditors is held open by the trustee under § 1308(b), there may be problems counting other time periods that start or end with the § 341 meeting.7 For example, after BAPCPA, the confirmation hearing in a Chapter 13 case is scheduled by § 1324(b) not earlier than 20 days nor later than 45 days after “the date of the meeting of creditors under section 341(a).”8 What is the “date of the meeting of creditors under section 341(a)” when the meeting is convened, then held open by the trustee for the filing of tax returns under § 1308(b)? To get to the other side of the hold open period the date of “the meeting” might be broadly interpreted to include the date to which the meeting is held open.


 

1  See § 42.4  Tax Return Duties—In General§ 42.5  Tax Return Duties Seven Days before First Scheduled Meeting of Creditors§ 42.6  Tax Return Duties One Day before First Scheduled Meeting of Creditors§ 42.7  Tax Return Duties—On Request and § 42.8  Consequences of Failure to File or Provide Tax Returns.

 

2  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.

 

3  See 11 U.S.C. § 1308(b)(1), 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.

 

4  See 11 U.S.C. § 341(a) and (b), discussed in § 42.1 [ Timing and Procedure ] § 43.1  Timing and Procedure.

 

5  Fed. R. Bankr. P. 2003(e).

 

6  See § 393.1 [ Consequences of Failure to File or Provide Tax Returns ] § 42.8  Consequences of Failure to File or Provide Tax Returns.

 

7  Similar problems arise when no § 341 meeting is convened. See 11 U.S.C. § 341(e), discussed in § 397.1 [ Option Not to Convene Meeting of Creditors? ] § 43.6  Option Not to Convene Meeting of Creditors?.

 

8  11 U.S.C. § 1324(b), discussed in § 502.1 [ Timing of Hearing on Confirmation ] § 115.2  Timing of Hearing on Confirmation after BAPCPA.