§ 116.3 — Time for Filing Objections after BAPCPA
Revised: March 28, 2006
Discussed immediately above,1 changes by BAPCPA to the timing of the hearing on confirmation will impact the deadlines and procedures for filing objections to confirmation. BAPCPA specifically addressed the filing of objections to confirmation in Chapter 13 cases by taxing authorities.
As amended by BAPCPA, § 1324(b) mandates that the hearing on confirmation in Chapter 13 cases be held not earlier than 20 days and not later than 45 days after the date of the § 341(a) meeting of creditors.2 Consistent with Bankruptcy Rule 3015(f), most bankruptcy courts fix a deadline by which parties in interest must file objections to confirmation in Chapter 13 cases.3 The new statutory window for the hearing on confirmation in § 1324(b) may change the existing deadlines and procedures for objecting to confirmation in a district. Creditors’ counsel should be forewarned to be on the lookout for notices or local rules that signal changes in timing and procedure for objecting to confirmation in Chapter 13 cases.
BAPCPA directly addressed the filing of objections to confirmation for governmental units. BAPCPA amended § 502(b)(9) to permit governmental units to file timely proofs of claim in Chapter 13 cases up to 60 days after a tax return is filed under new § 1308.4 Section 1308, as amended by BAPCPA, requires Chapter 13 debtors, not later than the day before the first scheduled meeting of creditors, to file all tax returns with appropriate taxing authorities for all taxable periods ending within four years before the petition.5 If all required tax returns have not been filed by the first scheduled date for the meeting of creditors, the Chapter 13 trustee may “hold open” that meeting for a reasonable period to allow the debtor additional time in which to file unfiled returns.6
Under § 502(b)(9), the claim of a governmental unit is timely if it is filed before 180 days after the petition in a Chapter 13 case. BAPCPA extended that time to 60 days after a return is filed under § 1308. Under § 1308, the Chapter 13 trustee can hold open the meeting of creditors for up to 120 days, and even longer extensions are possible.7 A long hold-open period could push the meeting of creditors to and through the 180-day period for the timely filing of proofs of claim by a governmental unit. The BAPCPA amendment to § 502(b)(9) solves that problem.
The same section of BAPCPA that amended § 502(b)(9) with respect to the timely filing of proofs of claim for taxes when a return is filed under § 1308 also contained an uncodified provision dealing with objections to confirmation by taxing authorities. Section 716(e) of BAPCPA provides:
(e) RULES FOR OBJECTIONS TO CLAIMS AND TO CONFIRMATION.—It is the sense of Congress that the Judicial Conference of the United States should, as soon as practicable after the date of enactment of this Act, propose amended Federal Rules of Bankruptcy Procedure that provide—
(1) notwithstanding the provisions of Rule 3015(f), in cases under chapter 13 of title 11, United States Code, that an objection to the confirmation of a plan filed by a governmental unit on or before the date that is 60 days after the date on which the debtor files all tax returns required under sections 1308 and 1325(a)(7) of title 11, United States Code, shall be treated for all purposes as if such objection had been timely filed before such confirmation.8
At this writing, the Judicial Conference has not yet acted to amend the Bankruptcy Rules consistent with the sense of Congress. It is at least interesting that Bankruptcy Rule 3015(f) was not amended by the Interim Rules in 2005. Section 716(e) of BAPCPA does not mandate that bankruptcy courts grant governmental units special deadlines for objecting to confirmation in Chapter 13 cases, but taxing authorities may press for such privileges in anticipation of action by the Judicial Conference.
In the sense of Congress quoted above, there is also a cross-reference to § 1325(a)(7).9 The cross-reference to § 1325(a)(7) captures the new condition for confirmation that “the action of the debtor in filing the petition was in good faith.”10 Perhaps some sense can be made of this cross-reference as written, but more likely, Congress intended to cross-reference § 1325(a)(9), which conditions confirmation in a Chapter 13 case that “the debtor has filed all applicable federal, state and local tax returns as required by section 1308.”11
1 See § 502.1 [ Timing of Hearing on Confirmation ] § 115.2 Timing of Hearing on Confirmation after BAPCPA.
2 See 11 U.S.C. § 1324(b), discussed in § 502.1 [ Timing of Hearing on Confirmation ] § 115.2 Timing of Hearing on Confirmation after BAPCPA.
3 See § 220.1 [ Time for Filing Objections ] § 116.2 Time for Filing Objections.
4 See 11 U.S.C. § 502(b)(9), discussed in § 508.1 [ New Timing Issues ] § 133.5 Tax Claim Exception after BAPCPA.
5 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.
6 11 U.S.C. § 1308(b), discussed in § 393.1 [ Consequences of Failure to File or Provide Tax Returns ] § 42.8 Consequences of Failure to File or Provide Tax Returns.
7 See 11 U.S.C. § 1307(b)(1), discussed in § 398.1 [ Holding Open the Meeting of Creditors ] § 43.7 Holding Open the Meeting of Creditors.
8 Pub. L. No. 109-8, 119 Stat. 23, at 130–31 (2005).
9 Pub. L. No. 109-8, 119 Stat. 23, at 130–31 (2005).
10 11 U.S.C. § 1325(a)(7), discussed in § 496.1 [ Good-Faith Filing Requirement ] § 110.1 Good-Faith Filing Requirement after BAPCPA.
11 11 U.S.C. § 1325(a)(9), discussed in § 499.1 [ All Tax Returns Must Be Filed ] § 113.4 All Tax Returns Must Be Filed.