Were from the Government, and Were Here to Help Really! United States Attorneys Office Civil Chief Daniel Hu Southern District of Texas AUSA Rick Kincheloe Disclaimer Some of this information is subject to change Assignments Addresses Policies
Double check that this information is current before relying on it Presentation is geared exclusively to bankruptcy matters Who we are How we can help
How you can help Common problems USAO/SDTX Represent the United States in most bankruptcy matters Other components of the U.S. Department of Justice may represent the United States in certain cases
E.g., Tax Division, Civil Division Tax Division USAM 6-5.610 Exceptions: Substantive tax issues Prominent individuals or corporations Dischargeability actions involving attempt to evade a tax or a fraudulent return Bankruptcy matters normally handled by USAO if Tax Division is already involved Appeals involving the tax matters
Sometimes Tax Division will refer matters to the USAO even if they would normally handle them Judge Assignments Houston: Judge Jones: Rick Kincheloe Judge Rodriguez: Rick Kincheloe Judge Isgur: Liz Karpati
Judge Bohm: Jose Vela Judge Norman: Chad Cowan Complex Cases: Rick Kincheloe Judge Assignments Corpus Christi: Lance Duke
Brownsville: Nancy Masso McAllen: David Guerra Laredo: Hector Ramirez
Hector Ramirez [email protected] (956) 721-4963 Addresses U.S. Attorneys Office: 1000 Louisiana St., Ste. 2300 Houston, TX 77002 Case intake and assignment is handled by the Houston office. Please do not send service to branch addresses.
Addresses U.S. Attorney General: 950 Pennsylvania Avenue, NW Washington, DC 20530-0001 Addresses IRS: (31 C.F.R. 10.63(c)) 1111 Constitution Avenue, NW
Washington, DC 20224 Courtesy Copies: Houston cases: 1919 Smith Street M/S 5022HOU Houston, TX 77002 South Texas cases: 300 E 8th Street M/S 5026 AUS Austin, TX 78701
Addresses Education: EPA: 400 Maryland Avenue, SW 1200 Pennsylvania Ave., NW Washington, DC 20202 Washington, DC 20460
Labor: 200 Constitution Ave. NW Customs and Border Protection: Washington, DC 20210 1300 Pennsylvania Ave., NW Washington, DC 20229
SBA: 409 3rd St., SW Washington, DC 20416 How can/cant we help? How can/cant we help? Service of Process AUSAs cannot waive service requirements Proper service on the United States is a jurisdictional requirement
AUSAs do not accept service on behalf of the United States But courtesy copies by e-mail are still appreciated and will usually generate a quicker response Civil Process Clerk is in Houston How can/cant we help? Deadlines
Can extend deadlines in litigation Cannot extend regulatory and deadlines Example: Suspensions of production administrative How can/cant we help? Payment Period for Priority Tax Claims 11 U.S.C. 1129(a)(9)(C)(ii)
60 months from the petition date No, but May be possible in an exceptional case Not enough to propose more recovery than a liquidation Balloon payments problematic
How can/cant we help? Bar Date 11 U.S.C. 502(b)(9) 180 days after the date of the order for relief . . . How can/cant we help? Compromises Traditional offers in compromise within the meaning of the Internal Revenue Code are not entertained in bankruptcy Can compromise aspects of SBA loans
EPA language EPA concerned about preserving the ability of states to enforce environmental law How can you help? How can you help? Bankruptcy Specialists (IRS)
Assigned by case type, claim size, and debtor name Usually the person who signed the proof of claim First stop to resolve IRS proof of claim issues For Houston: unfiled tax returns should be filed with the bankruptcy specialist If cannot reach assigned specialist after several attempts, contact Annie Ray (346) 227-6540 How can you help? Unfiled Returns
Make an appointment with the bankruptcy specialist in advance to hand deliver a return If the bankruptcy specialist will accept the return by mail, mail it to the specialist Do not send returns to the service center
Typically takes longer Harder to find out about the status of the return Give the IRS time to process late-filed returns How can you help? Other disputes
Try to work with the bankruptcy specialist Tell them what your client disputes and why Figure out what information they need to correct any mistakes Service Fed. R. Bankr. P. 9014(b) The motion shall be served in the manner provided . . . By Rule 7004 . . . Fed. R. Bankr. P. 3007(a)(2)(A)(i)
If the Objection is to a claim of the United States . . . in the manner provided . . . by Rule 7004(b)(4) or (5) Service Fed. R. Bankr. P. 7004(b)(4) and (5) Mail claim objection, motion, or complaint and summons to: 1. U.S. Attorneys Office for the Southern District of Texas
ATTN: Civil Process Clerk 2. U.S. Attorney General 3. Agency (i.e., IRS, Dept. of Education, etc.) How can you help? Initial communication
Case name and number Court What are you trying to accomplish Who have you been dealing with We deal with a large number of agencies What has happened
Common Issues Common Issues Late-Filed Individual Tax Returns 11 U.S.C. 523(a)(*) In re McCoy, 666 F.3d 924, 927 (5th Cir. 2012) Late-filed returns are not returns
Tax liabilities for years with late filed returns are not dischargeable No return filed 11 U.S.C. 523(a)(1)(B) Common Issues Interest Rate on Tax Claims 26 U.S.C. 6621
IR-2018-43 Federal short-term rate plus 3%
The Secretary shall determine the Federal short-term rate for the first month in each calendar quarter. 26 U.S.C. 1274(d) Interest rate is currently 5% for most underpayments Check at the beginning of a new quarter https://www.irs.gov/newsroom/interest-rates-increase-for-thesecond-quarter-of-2018 Priority claims in chapter 13 cases Common Issues Cash Collateral
Tax liens attach to all assets 26 U.S.C. 6321 . . . all property and rights to property . . . . Secured tax claim means cash collateral issues in chapter 11 and 13 cases
Priority of tax lien 26 U.S.C. 6323 First in time Common Issues Environmental Concerns
Midlantic National Bank v. New Jersey Department of Environmental Protection, 474 U.S. 494 (1986) United States often relies on states to enforce environmental laws Common Issues Anything else? Conclusion
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