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TITLE IV — GENERAL AND SMALL BUSINESS BANKRUPTCY PROVISIONS
Subtitle A — General Business Bankruptcy Provisions

SEC. 401. ADEQUATE PROTECTION FOR INVESTORS.

    (a) DEFINITION.—Section 101 of title 11, United States Code, is amended by inserting after paragraph (48) the following:
      "(48A) 'securities self regulatory organization' means either a securities association registered with the Securities and Exchange Commission under section 15A of the Securities Exchange Act of 1934 or a national securities exchange registered with the Securities and Exchange Commission under section 6 of the Securities Exchange Act of 1934;".

    (b) AUTOMATIC STAY.—Section 362(b) of title 11, United States Code, as amended by sections 224, 303, and 311, is amended by inserting after paragraph (24) the following:
      "(25) under subsection (a), of—
        "(A) the commencement or continuation of an investigation or action by a securities self regulatory organization to enforce such organization's regulatory power;
        "(B) the enforcement of an order or decision, other than for monetary sanctions, obtained in an action by such securities self regulatory organization to enforce such organization's regulatory power; or
        "(C) any act taken by such securities self regulatory organization to delist, delete, or refuse to permit quotation of any stock that does not meet applicable regulatory requirements;".

 

 

 

 


SEC. 402. MEETINGS OF CREDITORS AND EQUITY SECURITY HOLDERS.

    Section 341 of title 11, United States Code, is amended by adding at the end the following:
    "(e) Notwithstanding subsections (a) and (b), the court, on the request of a party in interest and after notice and a hearing, for cause may order that the United States trustee not convene a meeting of creditors or equity security holders if the debtor has filed a plan as to which the debtor solicited acceptances prior to the commencement of the case.".


SEC. 403. PROTECTION OF REFINANCE OF SECURITY INTEREST.

    Subparagraphs (A), (B), and (C) of section 547(e)(2) of title 11, United States Code, are each amended by striking "10" each place it appears and inserting "30".


SEC. 404. EXECUTORY CONTRACTS AND UNEXPIRED LEASES.

    (a) IN GENERAL.—Section 365(d)(4) of title 11, United States Code, is amended to read as follows:

    "(4)(A) Subject to subparagraph (B), an unexpired lease of nonresidential real property under which the debtor is the lessee shall be deemed rejected, and the trustee shall immediately surrender that nonresidential real property to the lessor, if the trustee does not assume or reject the unexpired lease by the earlier of—

      "(i) the date that is 120 days after the date of the order for relief; or

      "(ii) the date of the entry of an order confirming a plan.

    "(B)(i) The court may extend the period determined under subparagraph (A), prior to the expiration of the 120-day period, for 90 days on the motion of the trustee or lessor for cause.

    "(ii) If the court grants an extension under clause (i), the court may grant a subsequent extension only upon prior written consent of the lessor in each instance.".

    (b) EXCEPTION.—Section 365(f)(1) of title 11, United States Code, is amended by striking "subsection" the first place it appears and inserting "subsections (b) and".

 

 

 

 


SEC. 405. CREDITORS AND EQUITY SECURITY HOLDERS COMMITTEES.

    (a) APPOINTMENT.—Section 1102(a) of title 11, United States Code, is amended by adding at the end the following:
    "(4) On request of a party in interest and after notice and a hearing, the court may order the United States trustee to change the membership of a committee appointed under this subsection, if the court determines that the change is necessary to ensure adequate representation of creditors or equity security holders. The court may order the United States trustee to increase the number of members of a committee to include a creditor that is a small business concern (as described in section 3(a)(1) of the Small Business Act), if the court determines that the creditor holds claims (of the kind represented by the committee) the aggregate amount of which, in comparison to the annual gross revenue of that creditor, is disproportionately large.".

    (b) INFORMATION.—Section 1102(b) of title 11, United States Code, is amended by adding at the end the following:
    "(3) A committee appointed under subsection (a) shall—
      "(A) provide access to information for creditors who—
        "(i) hold claims of the kind represented by that committee; and
        "(ii) are not appointed to the committee;
      "(B) solicit and receive comments from the creditors described in subparagraph (A); and
      "(C) be subject to a court order that compels any additional report or disclosure to be made to the creditors described in subparagraph (A).".

 

 

 

 


SEC. 406. AMENDMENT TO SECTION 546 OF TITLE 11, UNITED STATES CODE.

    Section 546 of title 11, United States Code, is amended—

      (1) by redesignating the second subsection (g) (as added by section 222(a) of Public Law 103-394) as subsection (h);

      (2) in subsection (h), as so redesignated, by inserting "and subject to the prior rights of holders of security interests in such goods or the proceeds of such goods" after "consent of a creditor"; and

      (3) by adding at the end the following:

    "(i)(1) Notwithstanding paragraphs (2) and (3) of section 545, the trustee may not avoid a warehouseman's lien for storage, transportation, or other costs incidental to the storage and handling of goods.

    "(2) The prohibition under paragraph (1) shall be applied in a manner consistent with any State statute applicable to such lien that is similar to section 7-209 of the Uniform Commercial Code, as in effect on the date of enactment of the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005, or any successor to such section 7-209.".

 

 

 

 


SEC. 407. AMENDMENTS TO SECTION 330(a) OF TITLE 11, UNITED STATES CODE.

    Section 330(a) of title 11, United States Code, is amended—

      (1) in paragraph (3)

        (A) by striking "(A) In" and inserting "In"; and

        (B) by inserting "to an examiner, trustee under chapter 11, or professional person" after "awarded"; and

      (2) by adding at the end the following:
    "(7) In determining the amount of reasonable compensation to be awarded to a trustee, the court shall treat such compensation as a commission, based on section 326.".


SEC. 408. POSTPETITION DISCLOSURE AND SOLICITATION.

    Section 1125 of title 11, United States Code, is amended by adding at the end the following:
    "(g) Notwithstanding subsection (b), an acceptance or rejection of the plan may be solicited from a holder of a claim or interest if such solicitation complies with applicable nonbankruptcy law and if such holder was solicited before the commencement of the case in a manner complying with applicable nonbankruptcy law.".


SEC. 409. PREFERENCES.

    Section 547(c) of title 11, United States Code, is amended—

      (1) by striking paragraph (2) and inserting the following:
      "(2) to the extent that such transfer was in payment of a debt incurred by the debtor in the ordinary course of business or financial affairs of the debtor and the transferee, and such transfer was—
        "(A) made in the ordinary course of business or financial affairs of the debtor and the transferee; or
        "(B) made according to ordinary business terms;";

      (2) in paragraph (8), by striking the period at the end and inserting "; or"; and

      (3) by adding at the end the following:
      "(9) if, in a case filed by a debtor whose debts are not primarily consumer debts, the aggregate value of all property that constitutes or is affected by such transfer is less than $5,000.".

 

 

 

 


SEC. 410. VENUE OF CERTAIN PROCEEDINGS.

    Section 1409(b) of title 28, United States Code, is amended by inserting ", or a debt (excluding a consumer debt) against a noninsider of less than $10,000," after "$5,000". Section 1409(b) of title 28, United States Code, is further amended by striking "$5,000" and inserting "$15,000".


SEC. 411. PERIOD FOR FILING PLAN UNDER CHAPTER 11.

    Section 1121(d) of title 11, United States Code, is amended—

      (1) by striking "On" and inserting "(1) Subject to paragraph (2), on"; and

      (2) by adding at the end the following:

    "(2)(A) The 120-day period specified in paragraph (1) may not be extended beyond a date that is 18 months after the date of the order for relief under this chapter.

    "(B) The 180-day period specified in paragraph (1) may not be extended beyond a date that is 20 months after the date of the order for relief under this chapter.".


SEC. 412. FEES ARISING FROM CERTAIN OWNERSHIP INTERESTS.

    Section 523(a)(16) of title 11, United States Code, is amended—

      (1) by striking "dwelling" the first place it appears;

      (2) by striking "ownership or" and inserting "ownership,";

      (3) by striking "housing" the first place it appears; and

      (4) by striking "but only" and all that follows through "such period," and inserting "or a lot in a homeowners association, for as long as the debtor or the trustee has a legal, equitable, or possessory ownership interest in such unit, such corporation, or such lot,".


SEC. 413. CREDITOR REPRESENTATION AT FIRST MEETING OF CREDITORS.

    Section 341(c) of title 11, United States Code, is amended by inserting at the end the following: "Notwithstanding any local court rule, provision of a State constitution, any otherwise applicable nonbankruptcy law, or any other requirement that representation at the meeting of creditors under subsection (a) be by an attorney, a creditor holding a consumer debt or any representative of the creditor (which may include an entity or an employee of an entity and may be a representative for more than 1 creditor) shall be permitted to appear at and participate in the meeting of creditors in a case under chapter 7 or 13, either alone or in conjunction with an attorney for the creditor. Nothing in this subsection shall be construed to require any creditor to be represented by an attorney at any meeting of creditors.".


SEC. 414. DEFINITION OF DISINTERESTED PERSON.

    Section 101(14) of title 11, United States Code, is amended to read as follows:
      "(14) 'disinterested person' means a person that—
        "(A) is not a creditor, an equity security holder, or an insider;
        "(B) is not and was not, within 2 years before the date of the filing of the petition, a director, officer, or employee of the debtor; and
        "(C) does not have an interest materially adverse to the interest of the estate or of any class of creditors or equity security holders, by reason of any direct or indirect relationship to, connection with, or interest in, the debtor, or for any other reason;".


SEC. 415. FACTORS FOR COMPENSATION OF PROFESSIONAL PERSONS.

    Section 330(a)(3) of title 11, United States Code, is amended—

      (1) in subparagraph (D), by striking "and" at the end;

      (2) by redesignating subparagraph (E) as subparagraph (F); and

      (3) by inserting after subparagraph (D) the following:
      "(E) with respect to a professional person, whether the person is board certified or otherwise has demonstrated skill and experience in the bankruptcy field; and".


SEC. 416. APPOINTMENT OF ELECTED TRUSTEE.

    Section 1104(b) of title 11, United States Code, is amended—

      (1) by inserting "(1)" after "(b)"; and

      (2) by adding at the end the following:

    "(2)(A) If an eligible, disinterested trustee is elected at a meeting of creditors under paragraph (1), the United States trustee shall file a report certifying that election.

    "(B) Upon the filing of a report under subparagraph (A)—

      "(i) the trustee elected under paragraph (1) shall be considered to have been selected and appointed for purposes of this section; and

      "(ii) the service of any trustee appointed under subsection (d) shall terminate.

    "(C) The court shall resolve any dispute arising out of an election described in subparagraph (A).".

 

 

 

 


SEC. 417. UTILITY SERVICE.

    Section 366 of title 11, United States Code, is amended—

      (1) in subsection (a), by striking "subsection (b)" and inserting "subsections (b) and (c)"; and

      (2) by adding at the end the following:

    "(c)(1)(A) For purposes of this subsection, the term "assurance of payment" means—

      "(i) a cash deposit;

      "(ii) a letter of credit;

      "(iii) a certificate of deposit;

      "(iv) a surety bond;

      "(v) a prepayment of utility consumption; or

      "(vi) another form of security that is mutually agreed on between the utility and the debtor or the trustee.

    "(B) For purposes of this subsection an administrative expense priority shall not constitute an assurance of payment.

    "(2) Subject to paragraphs (3) and (4), with respect to a case filed under chapter 11, a utility referred to in subsection (a) may alter, refuse, or discontinue utility service, if during the 30-day period beginning on the date of the filing of the petition, the utility does not receive from the debtor or the trustee adequate assurance of payment for utility service that is satisfactory to the utility.

    "(3)(A) On request of a party in interest and after notice and a hearing, the court may order modification of the amount of an assurance of payment under paragraph (2).

    "(B) In making a determination under this paragraph whether an assurance of payment is adequate, the court may not consider—

      "(i) the absence of security before the date of the filing of the petition;

      "(ii) the payment by the debtor of charges for utility service in a timely manner before the date of the filing of the petition; or

      "(iii) the availability of an administrative expense priority.

    "(4) Notwithstanding any other provision of law, with respect to a case subject to this subsection, a utility may recover or set off against a security deposit provided to the utility by the debtor before the date of the filing of the petition without notice or order of the court.".

 

 

 

 

 

 


SEC. 418. BANKRUPTCY FEES.

    Section 1930 of title 28, United States Code, is amended—

      (1) in subsection (a), by striking "Notwithstanding section 1915 of this title, the" and inserting "The"; and

      (2) by adding at the end the following:

    "(f)(1) Under the procedures prescribed by the Judicial Conference of the United States, the district court or the bankruptcy court may waive the filing fee in a case under chapter 7 of title 11 for an individual if the court determines that such individual has income less than 150 percent of the income official poverty line (as defined by the Office of Management and Budget, and revised annually in accordance with section 673(2) of the Omnibus Budget Reconciliation Act of 1981) applicable to a family of the size involved and is unable to pay that fee in installments. For purposes of this paragraph, the term "filing fee" means the filing fee required by subsection (a), or any other fee prescribed by the Judicial Conference under subsections (b) and (c) that is payable to the clerk upon the commencement of a case under chapter 7.

    "(2) The district court or the bankruptcy court may waive for such debtors other fees prescribed under subsections (b) and (c).

    "(3) This subsection does not restrict the district court or the bankruptcy court from waiving, in accordance with Judicial Conference policy, fees prescribed under this section for other debtors and creditors.".

 

 

 

 


SEC. 419. MORE COMPLETE INFORMATION REGARDING ASSETS OF THE ESTATE.

    (a) IN GENERAL.—

      (1) DISCLOSURE.—The Judicial Conference of the United States, in accordance with section 2075 of title 28 of the United States Code and after consideration of the views of the Director of the Executive Office for United States Trustees, shall propose amended Federal Rules of Bankruptcy Procedure and in accordance with rule 9009 of the Federal Rules of Bankruptcy Procedure shall prescribe official bankruptcy forms directing debtors under chapter 11 of title 11 of United States Code, to disclose the information described in paragraph (2) by filing and serving periodic financial and other reports designed to provide such information.

      (2) INFORMATION.—The information referred to in paragraph (1) is the value, operations, and profitability of any closely held corporation, partnership, or of any other entity in which the debtor holds a substantial or controlling interest.

    (b) PURPOSE.—The purpose of the rules and reports under subsection (a) shall be to assist parties in interest taking steps to ensure that the debtor's interest in any entity referred to in subsection (a)(2) is used for the payment of allowed claims against debtor.

 

 

 

 


Subtitle B—Small Business Bankruptcy Provisions
 

SEC. 431. FLEXIBLE RULES FOR DISCLOSURE STATEMENT AND PLAN.

    Section 1125 of title 11, United States Code, is amended—

      (1) in subsection (a)(1), by inserting before the semicolon "and in determining whether a disclosure statement provides adequate information, the court shall consider the complexity of the case, the benefit of additional information to creditors and other parties in interest, and the cost of providing additional information"; and

      (2) by striking subsection (f), and inserting the following:
    "(f) Notwithstanding subsection (b), in a small business case—
      "(1) the court may determine that the plan itself provides adequate information and that a separate disclosure statement is not necessary;
      "(2) the court may approve a disclosure statement submitted on standard forms approved by the court or adopted under section 2075 of title 28; and

      "(3)(A) the court may conditionally approve a disclosure statement subject to final approval after notice and a hearing;

      "(B) acceptances and rejections of a plan may be solicited based on a conditionally approved disclosure statement if the debtor provides adequate information to each holder of a claim or interest that is solicited, but a conditionally approved disclosure statement shall be mailed not later than 25 days before the date of the hearing on confirmation of the plan; and

      "(C) the hearing on the disclosure statement may be combined with the hearing on confirmation of a plan.".

 

 

 

 


 

SEC. 432. DEFINITIONS.

    (a) DEFINITIONS.—Section 101 of title 11, United States Code, is amended by striking paragraph (51C) and inserting the following:
      "(51C) 'small business case' means a case filed under chapter 11 of this title in which the debtor is a small business debtor;
      "(51D) 'small business debtor'—
        "(A) subject to subparagraph (B), means a person engaged in commercial or business activities (including any affiliate of such person that is also a debtor under this title and excluding a person whose primary activity is the business of owning or operating real property or activities incidental thereto) that has aggregate noncontingent liquidated secured and unsecured debts as of the date of the petition or the date of the order for relief in an amount not more than $2,000,000 (excluding debts owed to 1 or more affiliates or insiders) for a case in which the United States trustee has not appointed under section 1102(a)(1) a committee of unsecured creditors or where the court has determined that the committee of unsecured creditors is not sufficiently active and representative to provide effective oversight of the debtor; and
        "(B) does not include any member of a group of affiliated debtors that has aggregate noncontingent liquidated secured and unsecured debts in an amount greater than $2,000,000 (excluding debt owed to 1 or more affiliates or insiders);".

    (b) CONFORMING AMENDMENT.—Section 1102(a)(3) of title 11, United States Code, is amended by inserting "debtor" after "small business".

    (c) ADJUSTMENT OF DOLLAR AMOUNTS.—Section 104(b) of title 11, United States Code, as amended by section 226, is amended by inserting "101(51D)," after "101(3)," each place it appears.

 

 

 

 


SEC. 433. STANDARD FORM DISCLOSURE STATEMENT AND PLAN.

    Within a reasonable period of time after the date of enactment of this Act, the Judicial Conference of the United States shall prescribe in accordance with rule 9009 of the Federal Rules of Bankruptcy Procedure official standard form disclosure statements and plans of reorganization for small business debtors (as defined in section 101 of title 11, United States Code, as amended by this Act), designed to achieve a practical balance between—

      (1) the reasonable needs of the courts, the United States trustee, creditors, and other parties in interest for reasonably complete information; and

      (2) economy and simplicity for debtors.


SEC. 434. UNIFORM NATIONAL REPORTING REQUIREMENTS.

    (a) REPORTING REQUIRED.—

      (1) IN GENERAL.—Chapter 3 of title 11, United States Code, is amended by inserting after section 307 the following:

"Sec. 308. Debtor reporting requirements

    "(a) For purposes of this section, the term "profitability" means, with respect to a debtor, the amount of money that the debtor has earned or lost during current and recent fiscal periods.
    "(b) A small business debtor shall file periodic financial and other reports containing information including—
      "(1) the debtor's profitability;
      "(2) reasonable approximations of the debtor's projected cash receipts and cash disbursements over a reasonable period;
      "(3) comparisons of actual cash receipts and disbursements with projections in prior reports;

      "(4)(A) whether the debtor is—

        "(i) in compliance in all material respects with postpetition requirements imposed by this title and the Federal Rules of Bankruptcy Procedure; and

        "(ii) timely filing tax returns and other required government filings and paying taxes and other administrative expenses when due;

      "(B) if the debtor is not in compliance with the requirements referred to in subparagraph (A)(i) or filing tax returns and other required government filings and making the payments referred to in subparagraph (A)(ii), what the failures are and how, at what cost, and when the debtor intends to remedy such failures; and

      "(C) such other matters as are in the best interests of the debtor and creditors, and in the public interest in fair and efficient procedures under chapter 11 of this title.".

      (2) CLERICAL AMENDMENT.—The table of sections for chapter 3 of title 11, United States Code, is amended by inserting after the item relating to section 307 the following:
      "308. Debtor reporting requirements.".

    (b) EFFECTIVE DATE.—The amendments made by subsection (a) shall take effect 60 days after the date on which rules are prescribed under section 2075 of title 28, United States Code, to establish forms to be used to comply with section 308 of title 11, United States Code, as added by subsection (a).

 

 

 

 

 

 


 

SEC. 435. UNIFORM REPORTING RULES AND FORMS FOR SMALL BUSINESS CASES.

    (a) PROPOSAL OF RULES AND FORMS.—The Judicial Conference of the United States shall propose in accordance with section 2073 of title 28 of the United States Code amended Federal Rules of Bankruptcy Procedure, and shall prescribe in accordance with rule 9009 of the Federal Rules of Bankruptcy Procedure official bankruptcy forms, directing small business debtors to file periodic financial and other reports containing information, including information relating to—

      (1) the debtor's profitability;

      (2) the debtor's cash receipts and disbursements; and

      (3) whether the debtor is timely filing tax returns and paying taxes and other administrative expenses when due.

    (b) PURPOSE.—The rules and forms proposed under subsection (a) shall be designed to achieve a practical balance among—

      (1) the reasonable needs of the bankruptcy court, the United States trustee, creditors, and other parties in interest for reasonably complete information;

      (2) a small business debtor's interest that required reports be easy and inexpensive to complete; and

      (3) the interest of all parties that the required reports help such debtor to understand such debtor's financial condition and plan the such debtor's future.

 

 

 

 


SEC. 436. DUTIES IN SMALL BUSINESS CASES.

    (a) DUTIES IN CHAPTER 11 CASES.—Subchapter I of chapter 11 of title 11, United States Code, as amended by section 321, is amended by adding at the end the following:

"Sec. 1116. Duties of trustee or debtor in possession in small business cases

    "In a small business case, a trustee or the debtor in possession, in addition to the duties provided in this title and as otherwise required by law, shall—
      "(1) append to the voluntary petition or, in an involuntary case, file not later than 7 days after the date of the order for relief—
        "(A) its most recent balance sheet, statement of operations, cash-flow statement, and Federal income tax return; or
        "(B) a statement made under penalty of perjury that no balance sheet, statement of operations, or cash-flow statement has been prepared and no Federal tax return has been filed;
      "(2) attend, through its senior management personnel and counsel, meetings scheduled by the court or the United States trustee, including initial debtor interviews, scheduling conferences, and meetings of creditors convened under section 341 unless the court, after notice and a hearing, waives that requirement upon a finding of extraordinary and compelling circumstances;
      "(3) timely file all schedules and statements of financial affairs, unless the court, after notice and a hearing, grants an extension, which shall not extend such time period to a date later than 30 days after the date of the order for relief, absent extraordinary and compelling circumstances;
      "(4) file all postpetition financial and other reports required by the Federal Rules of Bankruptcy Procedure or by local rule of the district court;
      "(5) subject to section 363(c)(2), maintain insurance customary and appropriate to the industry;

      "(6)(A) timely file tax returns and other required government filings; and

      "(B) subject to section 363(c)(2), timely pay all taxes entitled to administrative expense priority except those being contested by appropriate proceedings being diligently prosecuted; and

      "(7) allow the United States trustee, or a designated representative of the United States trustee, to inspect the debtor's business premises, books, and records at reasonable times, after reasonable prior written notice, unless notice is waived by the debtor.".

    (b) CLERICAL AMENDMENT.—The table of sections for chapter 11 of title 11, United States Code, as amended by section 321, is amended by inserting after the item relating to section 1115 the following:
      "1116. Duties of trustee or debtor in possession in small business cases.".

 

 

 

 

 

 


 

SEC. 437. PLAN FILING AND CONFIRMATION DEADLINES.

    Section 1121 of title 11, United States Code, is amended by striking subsection (e) and inserting the following:
    "(e) In a small business case—
      "(1) only the debtor may file a plan until after 180 days after the date of the order for relief, unless that period is—
        "(A) extended as provided by this subsection, after notice and a hearing; or
        "(B) the court, for cause, orders otherwise;
      "(2) the plan and a disclosure statement (if any) shall be filed not later than 300 days after the date of the order for relief; and
      "(3) the time periods specified in paragraphs (1) and (2), and the time fixed in section 1129(e) within which the plan shall be confirmed, may be extended only if—
        "(A) the debtor, after providing notice to parties in interest (including the United States trustee), demonstrates by a preponderance of the evidence that it is more likely than not that the court will confirm a plan within a reasonable period of time;
        "(B) a new deadline is imposed at the time the extension is granted; and
        "(C) the order extending time is signed before the existing deadline has expired.".

 

 

 

 


SEC. 438. PLAN CONFIRMATION DEADLINE.

    Section 1129 of title 11, United States Code, is amended by adding at the end the following:
    "(e) In a small business case, the court shall confirm a plan that complies with the applicable provisions of this title and that is filed in accordance with section 1121(e) not later than 45 days after the plan is filed unless the time for confirmation is extended in accordance with section 1121(e)(3).".


SEC. 439. DUTIES OF THE UNITED STATES TRUSTEE.

    Section 586(a) of title 28, United States Code, is amended—

      (1) in paragraph (3)

        (A) in subparagraph (G), by striking "and" at the end;

        (B) by redesignating subparagraph (H) as subparagraph (I); and

        (C) by inserting after subparagraph (G) the following:
        "(H) in small business cases (as defined in section 101 of title 11), performing the additional duties specified in title 11 pertaining to such cases; and";

      (2) in paragraph (5), by striking "and" at the end;

      (3) in paragraph (6), by striking the period at the end and inserting a semicolon; and

      (4) by adding at the end the following:
      "(7) in each of such small business cases—
        "(A) conduct an initial debtor interview as soon as practicable after the date of the order for relief but before the first meeting scheduled under section 341(a) of title 11, at which time the United States trustee shall—
          "(i) begin to investigate the debtor's viability;
          "(ii) inquire about the debtor's business plan;
          "(iii) explain the debtor's obligations to file monthly operating reports and other required reports;
          "(iv) attempt to develop an agreed scheduling order; and
          "(v) inform the debtor of other obligations;
        "(B) if determined to be appropriate and advisable, visit the appropriate business premises of the debtor, ascertain the state of the debtor's books and records, and verify that the debtor has filed its tax returns; and
        "(C) review and monitor diligently the debtor's activities, to identify as promptly as possible whether the debtor will be unable to confirm a plan; and
      "(8) in any case in which the United States trustee finds material grounds for any relief under section 1112 of title 11, the United States trustee shall apply promptly after making that finding to the court for relief.".

 

 

 

 

 

 

 

 

 

 


SEC. 440. SCHEDULING CONFERENCES.

    Section 105(d) of title 11, United States Code, is amended—

      (1) in the matter preceding paragraph (1), by striking ", may"; and

      (2) by striking paragraph (1) and inserting the following:
      "(1) shall hold such status conferences as are necessary to further the expeditious and economical resolution of the case; and".


SEC. 441. SERIAL FILER PROVISIONS.

    Section 362 of title 11, United States Code, as amended by sections 106, 305, and 311, is amended—

      (1) in subsection (k), as so redesignated by section 305

        (A) by striking "An" and inserting "(1) Except as provided in paragraph (2), an"; and

        (B) by adding at the end the following:
    "(2) If such violation is based on an action taken by an entity in the good faith belief that subsection (h) applies to the debtor, the recovery under paragraph (1) of this subsection against such entity shall be limited to actual damages."; and

      (2) by adding at the end the following:

    "(n)(1) Except as provided in paragraph (2), subsection (a) does not apply in a case in which the debtor—

      "(A) is a debtor in a small business case pending at the time the petition is filed;

      "(B) was a debtor in a small business case that was dismissed for any reason by an order that became final in the 2-year period ending on the date of the order for relief entered with respect to the petition;

      "(C) was a debtor in a small business case in which a plan was confirmed in the 2-year period ending on the date of the order for relief entered with respect to the petition; or

      "(D) is an entity that has acquired substantially all of the assets or business of a small business debtor described in subparagraph (A), (B), or (C), unless such entity establishes by a preponderance of the evidence that such entity acquired substantially all of the assets or business of such small business debtor in good faith and not for the purpose of evading this paragraph.

    "(2) Paragraph (1) does not apply—

      "(A) to an involuntary case involving no collusion by the debtor with creditors; or

      "(B) to the filing of a petition if—

        "(i) the debtor proves by a preponderance of the evidence that the filing of the petition resulted from circumstances beyond the control of the debtor not foreseeable at the time the case then pending was filed; and

        "(ii) it is more likely than not that the court will confirm a feasible plan, but not a liquidating plan, within a reasonable period of time.".

 

 

 

 

 

 


SEC. 442. EXPANDED GROUNDS FOR DISMISSAL OR CONVERSION AND APPOINTMENT OF TRUSTEE.

    (a) EXPANDED GROUNDS FOR DISMISSAL OR CONVERSION.—Section 1112 of title 11, United States Code, is amended by striking subsection (b) and inserting the following:

    "(b)(1) Except as provided in paragraph (2) of this subsection, subsection (c) of this section, and section 1104(a)(3), on request of a party in interest, and after notice and a hearing, absent unusual circumstances specifically identified by the court that establish that the requested conversion or dismissal is not in the best interests of creditors and the estate, the court shall convert a case under this chapter to a case under chapter 7 or dismiss a case under this chapter, whichever is in the best interests of creditors and the estate, if the movant establishes cause.

    "(2) The relief provided in paragraph (1) shall not be granted absent unusual circumstances specifically identified by the court that establish that such relief is not in the best interests of creditors and the estate, if the debtor or another party in interest objects and establishes that—

      "(A) there is a reasonable likelihood that a plan will be confirmed within the timeframes established in sections 1121(e) and 1129(e) of this title, or if such sections do not apply, within a reasonable period of time; and

      "(B) the grounds for granting such relief include an act or omission of the debtor other than under paragraph (4)(A)—

        "(i) for which there exists a reasonable justification for the act or omission; and

        "(ii) that will be cured within a reasonable period of time fixed by the court.

    "(3) The court shall commence the hearing on a motion under this subsection not later than 30 days after filing of the motion, and shall decide the motion not later than 15 days after commencement of such hearing, unless the movant expressly consents to a continuance for a specific period of time or compelling circumstances prevent the court from meeting the time limits established by this paragraph.

    "(4) For purposes of this subsection, the term "cause" includes—

      "(A) substantial or continuing loss to or diminution of the estate and the absence of a reasonable likelihood of rehabilitation;

      "(B) gross mismanagement of the estate;

      "(C) failure to maintain appropriate insurance that poses a risk to the estate or to the public;

      "(D) unauthorized use of cash collateral substantially harmful to 1 or more creditors;

      "(E) failure to comply with an order of the court;

      "(F) unexcused failure to satisfy timely any filing or reporting requirement established by this title or by any rule applicable to a case under this chapter;

      "(G) failure to attend the meeting of creditors convened under section 341(a) or an examination ordered under rule 2004 of the Federal Rules of Bankruptcy Procedure without good cause shown by the debtor;

      "(H) failure timely to provide information or attend meetings reasonably requested by the United States trustee (or the bankruptcy administrator, if any);

      "(I) failure timely to pay taxes owed after the date of the order for relief or to file tax returns due after the date of the order for relief;

      "(J) failure to file a disclosure statement, or to file or confirm a plan, within the time fixed by this title or by order of the court;

      "(K) failure to pay any fees or charges required under chapter 123 of title 28;

      "(L) revocation of an order of confirmation under section 1144;

      "(M) inability to effectuate substantial consummation of a confirmed plan;

      "(N) material default by the debtor with respect to a confirmed plan;

      "(O) termination of a confirmed plan by reason of the occurrence of a condition specified in the plan; and

      "(P) failure of the debtor to pay any domestic support obligation that first becomes payable after the date of the filing of the petition.".

    (b) ADDITIONAL GROUNDS FOR APPOINTMENT OF TRUSTEE.—Section 1104(a) of title 11, United States Code, is amended—

      (1) in paragraph (1), by striking "or" at the end;

      (2) in paragraph (2), by striking the period at the end and inserting "; or"; and

      (3) by adding at the end the following:
      "(3) if grounds exist to convert or dismiss the case under section 1112, but the court determines that the appointment of a trustee or an examiner is in the best interests of creditors and the estate.".

 

 

 

 

 

 

 

 

 

 

 

 


SEC. 443. STUDY OF OPERATION OF TITLE 11, UNITED STATES CODE, WITH RESPECT TO SMALL BUSINESSES.

    Not later than 2 years after the date of enactment of this Act, the Administrator of the Small Business Administration, in consultation with the Attorney General, the Director of the Executive Office for United States Trustees, and the Director of the Administrative Office of the United States Courts, shall—

      (1) conduct a study to determine—

        (A) the internal and external factors that cause small businesses, especially sole proprietorships, to become debtors in cases under title 11, United States Code, and that cause certain small businesses to successfully complete cases under chapter 11 of such title; and

        (B) how Federal laws relating to bankruptcy may be made more effective and efficient in assisting small businesses to remain viable; and

      (2) submit to the President pro tempore of the Senate and the Speaker of the House of Representatives a report summarizing that study.


SEC. 444. PAYMENT OF INTEREST.

    Section 362(d)(3) of title 11, United States Code, is amended—

      (1) by inserting "or 30 days after the court determines that the debtor is subject to this paragraph, whichever is later" after "90-day period)"; and

      (2) by striking subparagraph (B) and inserting the following:
        "(B) the debtor has commenced monthly payments that—
          "(i) may, in the debtor's sole discretion, notwithstanding section 363(c)(2), be made from rents or other income generated before, on, or after the date of the commencement of the case by or from the property to each creditor whose claim is secured by such real estate (other than a claim secured by a judgment lien or by an unmatured statutory lien); and
          "(ii) are in an amount equal to interest at the then applicable nondefault contract rate of interest on the value of the creditor's interest in the real estate; or".

 

 

 

 


SEC. 445. PRIORITY FOR ADMINISTRATIVE EXPENSES.

    Section 503(b) of title 11, United States Code, is amended—

      (1) in paragraph (5), by striking "and" at the end;

      (2) in paragraph (6), by striking the period at the end and inserting a semicolon; and

      (3) by adding at the end the following:
      "(7) with respect to a nonresidential real property lease previously assumed under section 365, and subsequently rejected, a sum equal to all monetary obligations due, excluding those arising from or relating to a failure to operate or a penalty provision, for the period of 2 years following the later of the rejection date or the date of actual turnover of the premises, without reduction or setoff for any reason whatsoever except for sums actually received or to be received from an entity other than the debtor, and the claim for remaining sums due for the balance of the term of the lease shall be a claim under section 502(b)(6);".

 

 

 

 


SEC. 446. DUTIES WITH RESPECT TO A DEBTOR WHO IS A PLAN ADMINISTRATOR OF AN EMPLOYEE BENEFIT PLAN.

    (a) IN GENERAL.—Section 521(a) of title 11, United States Code, as amended by sections 106 and 304, is amended—

      (1) in paragraph (5), by striking "and" at the end;

      (2) in paragraph (6), by striking the period at the end and inserting "; and"; and

      (3) by adding after paragraph (6) the following:
      "(7) unless a trustee is serving in the case, continue to perform the obligations required of the administrator (as defined in section 3 of the Employee Retirement Income Security Act of 1974) of an employee benefit plan if at the time of the commencement of the case the debtor (or any entity designated by the debtor) served as such administrator.".

    (b) DUTIES OF TRUSTEES.—Section 704(a) of title 11, United States Code, as amended by sections 102 and 219, is amended—

      (1) in paragraph (10), by striking "and" at the end; and

      (2) by adding at the end the following:
      "(11) if, at the time of the commencement of the case, the debtor (or any entity designated by the debtor) served as the administrator (as defined in section 3 of the Employee Retirement Income Security Act of 1974) of an employee benefit plan, continue to perform the obligations required of the administrator; and".

    (c) CONFORMING AMENDMENT.—Section 1106(a)(1) of title 11, United States Code, is amended to read as follows:
      "(1) perform the duties of the trustee, as specified in paragraphs (2), (5), (7), (8), (9), (10), and (11) of section 704;".

 

 

 

 


SEC. 447. APPOINTMENT OF COMMITTEE OF RETIRED EMPLOYEES.

    Section 1114(d) of title 11, United States Code, is amended—

      (1) by striking "appoint" and inserting "order the appointment of", and

      (2) by adding at the end the following: "The United States trustee shall appoint any such committee.".


TITLE V—MUNICIPAL BANKRUPTCY PROVISIONS

SEC. 501. PETITION AND PROCEEDINGS RELATED TO PETITION.

    (a) TECHNICAL AMENDMENT RELATING TO MUNICIPALITIES.—Section 921(d) of title 11, United States Code, is amended by inserting "notwithstanding section 301(b)" before the period at the end.

    (b) CONFORMING AMENDMENT.—Section 301 of title 11, United States Code, is amended—

      (1) by inserting "(a)" before "A voluntary"; and

      (2) by striking the last sentence and inserting the following:
    "(b) The commencement of a voluntary case under a chapter of this title constitutes an order for relief under such chapter.".


SEC. 502. APPLICABILITY OF OTHER SECTIONS TO CHAPTER 9.

    Section 901(a) of title 11, United States Code, is amended—

      (1) by inserting "555, 556," after "553,"; and

      (2) by inserting "559, 560, 561, 562," after "557,".


TITLE VI—BANKRUPTCY DATA

SEC. 601. IMPROVED BANKRUPTCY STATISTICS.

    (a) IN GENERAL.—Chapter 6 of title 28, United States Code, is amended by adding at the end the following:

"Sec. 159. Bankruptcy statistics

    "(a) The clerk of the district court, or the clerk of the bankruptcy court if one is certified pursuant to section 156(b) of this title, shall collect statistics regarding debtors who are individuals with primarily consumer debts seeking relief under chapters 7, 11, and 13 of title 11. Those statistics shall be in a standardized format prescribed by the Director of the Administrative Office of the United States Courts (referred to in this section as the "Director").
    "(b) The Director shall—
      "(1) compile the statistics referred to in subsection (a);
      "(2) make the statistics available to the public; and
      "(3) not later than July 1, 2008, and annually thereafter, prepare, and submit to Congress a report concerning the information collected under subsection (a) that contains an analysis of the information.
    "(c) The compilation required under subsection (b) shall—
      "(1) be itemized, by chapter, with respect to title 11;
      "(2) be presented in the aggregate and for each district; and
      "(3) include information concerning—
        "(A) the total assets and total liabilities of the debtors described in subsection (a), and in each category of assets and liabilities, as reported in the schedules prescribed pursuant to section 2075 of this title and filed by debtors;
        "(B) the current monthly income, average income, and average expenses of debtors as reported on the schedules and statements that each such debtor files under sections 521 and 1322 of title 11;
        "(C) the aggregate amount of debt discharged in cases filed during the reporting period, determined as the difference between the total amount of debt and obligations of a debtor reported on the schedules and the amount of such debt reported in categories which are predominantly nondischargeable;
        "(D) the average period of time between the date of the filing of the petition and the closing of the case for cases closed during the reporting period;
        "(E) for cases closed during the reporting period—
          "(i) the number of cases in which a reaffirmation agreement was filed; and

          "(ii)(I) the total number of reaffirmation agreements filed;

          "(II) of those cases in which a reaffirmation agreement was filed, the number of cases in which the debtor was not represented by an attorney; and

          "(III) of those cases in which a reaffirmation agreement was filed, the number of cases in which the reaffirmation agreement was approved by the court;

        "(F) with respect to cases filed under chapter 13 of title 11, for the reporting period—

          "(i)(I) the number of cases in which a final order was entered determining the value of property securing a claim in an amount less than the amount of the claim; and

          "(II) the number of final orders entered determining the value of property securing a claim;

          "(ii) the number of cases dismissed, the number of cases dismissed for failure to make payments under the plan, the number of cases refiled after dismissal, and the number of cases in which the plan was completed, separately itemized with respect to the number of modifications made before completion of the plan, if any; and
          "(iii) the number of cases in which the debtor filed another case during the 6-year period preceding the filing;
        "(G) the number of cases in which creditors were fined for misconduct and any amount of punitive damages awarded by the court for creditor misconduct; and
        "(H) the number of cases in which sanctions under rule 9011 of the Federal Rules of Bankruptcy Procedure were imposed against debtor's attorney or damages awarded under such Rule.".

    (b) CLERICAL AMENDMENT.—The table of sections for chapter 6 of title 28, United States Code, is amended by adding at the end the following:
      "159. Bankruptcy statistics.".

    (c) EFFECTIVE DATE.—The amendments made by this section shall take effect 18 months after the date of enactment of this Act.

 

 

 

 

 

 

 

 

 

 

 

 

 

 


SEC. 602. UNIFORM RULES FOR THE COLLECTION OF BANKRUPTCY DATA.

    (a) AMENDMENT.—Chapter 39 of title 28, United States Code, is amended by adding at the end the following:

"Sec. 589b. Bankruptcy data

    "(a) RULES.—The Attorney General shall, within a reasonable time after the effective date of this section, issue rules requiring uniform forms for (and from time to time thereafter to appropriately modify and approve)—
      "(1) final reports by trustees in cases under chapters 7, 12, and 13 of title 11; and
      "(2) periodic reports by debtors in possession or trustees in cases under chapter 11 of title 11.
    "(b) REPORTS.—Each report referred to in subsection (a) shall be designed (and the requirements as to place and manner of filing shall be established) so as to facilitate compilation of data and maximum possible access of the public, both by physical inspection at one or more central filing locations, and by electronic access through the Internet or other appropriate media.
    "(c) REQUIRED INFORMATION.—The information required to be filed in the reports referred to in subsection (b) shall be that which is in the best interests of debtors and creditors, and in the public interest in reasonable and adequate information to evaluate the efficiency and practicality of the Federal bankruptcy system. In issuing rules proposing the forms referred to in subsection (a), the Attorney General shall strike the best achievable practical balance between—
      "(1) the reasonable needs of the public for information about the operational results of the Federal bankruptcy system;
      "(2) economy, simplicity, and lack of undue burden on persons with a duty to file reports; and
      "(3) appropriate privacy concerns and safeguards.
    "(d) FINAL REPORTS.—The uniform forms for final reports required under subsection (a) for use by trustees under chapters 7, 12, and 13 of title 11 shall, in addition to such other matters as are required by law or as the Attorney General in the discretion of the Attorney General shall propose, include with respect to a case under such title—
      "(1) information about the length of time the case was pending;
      "(2) assets abandoned;
      "(3) assets exempted;
      "(4) receipts and disbursements of the estate;
      "(5) expenses of administration, including for use under section 707(b), actual costs of administering cases under chapter 13 of title 11;
      "(6) claims asserted;
      "(7) claims allowed; and
      "(8) distributions to claimants and claims discharged without payment,
    in each case by appropriate category and, in cases under chapters 12 and 13 of title 11, date of confirmation of the plan, each modification thereto, and defaults by the debtor in performance under the plan.
    "(e) PERIODIC REPORTS.—The uniform forms for periodic reports required under subsection (a) for use by trustees or debtors in possession under chapter 11 of title 11 shall, in addition to such other matters as are required by law or as the Attorney General in the discretion of the Attorney General shall propose, include—
      "(1) information about the industry classification, published by the Department of Commerce, for the businesses conducted by the debtor;
      "(2) length of time the case has been pending;
      "(3) number of full-time employees as of the date of the order for relief and at the end of each reporting period since the case was filed;
      "(4) cash receipts, cash disbursements and profitability of the debtor for the most recent period and cumulatively since the date of the order for relief;
      "(5) compliance with title 11, whether or not tax returns and tax payments since the date of the order for relief have been timely filed and made;
      "(6) all professional fees approved by the court in the case for the most recent period and cumulatively since the date of the order for relief (separately reported, for the professional fees incurred by or on behalf of the debtor, between those that would have been incurred absent a bankruptcy case and those not); and
      "(7) plans of reorganization filed and confirmed and, with respect thereto, by class, the recoveries of the holders, expressed in aggregate dollar values and, in the case of claims, as a percentage of total claims of the class allowed.".

    (b) CLERICAL AMENDMENT.—The table of sections for chapter 39 of title 28, United States Code, is amended by adding at the end the following:
      "589b. Bankruptcy data.".

 

 

 

 

 

 

 

 

 

 

 

 

 

 


SEC. 603. AUDIT PROCEDURES.

    (a) IN GENERAL.—

      (1) ESTABLISHMENT OF PROCEDURES.—The Attorney General (in judicial districts served by United States trustees) and the Judicial Conference of the United States (in judicial districts served by bankruptcy administrators) shall establish procedures to determine the accuracy, veracity, and completeness of petitions, schedules, and other information that the debtor is required to provide under sections 521 and 1322 of title 11, United States Code, and, if applicable, section 111 of such title, in cases filed under chapter 7 or 13 of such title in which the debtor is an individual. Such audits shall be in accordance with generally accepted auditing standards and performed by independent certified public accountants or independent licensed public accountants, provided that the Attorney General and the Judicial Conference, as appropriate, may develop alternative auditing standards not later than 2 years after the date of enactment of this Act.

      (2) PROCEDURES.—Those procedures required by paragraph (1) shall—

        (A) establish a method of selecting appropriate qualified persons to contract to perform those audits;

        (B) establish a method of randomly selecting cases to be audited, except that not less than 1 out of every 250 cases in each Federal judicial district shall be selected for audit;

        (C) require audits of schedules of income and expenses that reflect greater than average variances from the statistical norm of the district in which the schedules were filed if those variances occur by reason of higher income or higher expenses than the statistical norm of the district in which the schedules were filed; and

        (D) establish procedures for providing, not less frequently than annually, public information concerning the aggregate results of such audits including the percentage of cases, by district, in which a material misstatement of income or expenditures is reported.

    (b) AMENDMENTS.—Section 586 of title 28, United States Code, is amended—

      (1) in subsection (a), by striking paragraph (6) and inserting the following:
      "(6) make such reports as the Attorney General directs, including the results of audits performed under section 603(a) of the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005;"; and

      (2) by adding at the end the following:

    "(f)(1) The United States trustee for each district is authorized to contract with auditors to perform audits in cases designated by the United States trustee, in accordance with the procedures established under section 603(a) of the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005.

    "(2)(A) The report of each audit referred to in paragraph (1) shall be filed with the court and transmitted to the United States trustee. Each report shall clearly and conspicuously specify any material misstatement of income or expenditures or of assets identified by the person performing the audit. In any case in which a material misstatement of income or expenditures or of assets has been reported, the clerk of the district court (or the clerk of the bankruptcy court if one is certified under section 156(b) of this title) shall give notice of the misstatement to the creditors in the case.

    "(B) If a material misstatement of income or expenditures or of assets is reported, the United States trustee shall—

      "(i) report the material misstatement, if appropriate, to the United States Attorney pursuant to section 3057 of title 18; and

      "(ii) if advisable, take appropriate action, including but not limited to commencing an adversary proceeding to revoke the debtor's discharge pursuant to section 727(d) of title 11.".

    (c) AMENDMENTS TO SECTION 521 OF TITLE 11, U.S.C.—Section 521(a) of title 11, United States Code, as so designated by section 106, is amended in each of paragraphs (3) and (4) by inserting "or an auditor serving under section 586(f) of title 28" after "serving in the case".

    (d) AMENDMENTS TO SECTION 727 OF TITLE 11, U.S.C.—Section 727(d) of title 11, United States Code, is amended—

      (1) in paragraph (2), by striking "or" at the end;

      (2) in paragraph (3), by striking the period at the end and inserting "; or"; and

      (3) by adding at the end the following:
      "(4) the debtor has failed to explain satisfactorily—
        "(A) a material misstatement in an audit referred to in section 586(f) of title 28; or
        "(B) a failure to make available for inspection all necessary accounts, papers, documents, financial records, files, and all other papers, things, or property belonging to the debtor that are requested for an audit referred to in section 586(f) of title 28.".

    (e) EFFECTIVE DATE.—The amendments made by this section shall take effect 18 months after the date of enactment of this Act.

 

 

 

 

 

 

 

 

 

 

 

 

 

 


SEC. 604. SENSE OF CONGRESS REGARDING AVAILABILITY OF BANKRUPTCY DATA.

    It is the sense of Congress that—

      (1) the national policy of the United States should be that all data held by bankruptcy clerks in electronic form, to the extent such data reflects only public records (as defined in section 107 of title 11, United States Code), should be released in a usable electronic form in bulk to the public, subject to such appropriate privacy concerns and safeguards as Congress and the Judicial Conference of the United States may determine; and

      (2) there should be established a bankruptcy data system in which—

        (A) a single set of data definitions and forms are used to collect data nationwide; and

        (B) data for any particular bankruptcy case are aggregated in the same electronic record.

 

 

 

 


TITLE VII—BANKRUPTCY TAX PROVISIONS

SEC. 701. TREATMENT OF CERTAIN LIENS.

    (a) TREATMENT OF CERTAIN LIENS.—Section 724 of title 11, United States Code, is amended—

      (1) in subsection (b), in the matter preceding paragraph (1), by inserting "(other than to the extent that there is a properly perfected unavoidable tax lien arising in connection with an ad valorem tax on real or personal property of the estate)" after "under this title";

      (2) in subsection (b)(2), by inserting "(except that such expenses, other than claims for wages, salaries, or commissions that arise after the date of the filing of the petition, shall be limited to expenses incurred under chapter 7 of this title and shall not include expenses incurred under chapter 11 of this title)" after "507(a)(1)"; and

      (3) by adding at the end the following:
    "(e) Before subordinating a tax lien on real or personal property of the estate, the trustee shall—
      "(1) exhaust the unencumbered assets of the estate; and
      "(2) in a manner consistent with section 506(c), recover from property securing an allowed secured claim the reasonable, necessary costs and expenses of preserving or disposing of such property.
    "(f) Notwithstanding the exclusion of ad valorem tax liens under this section and subject to the requirements of subsection (e), the following may be paid from property of the estate which secures a tax lien, or the proceeds of such property:
      "(1) Claims for wages, salaries, and commissions that are entitled to priority under section 507(a)(4).
      "(2) Claims for contributions to an employee benefit plan entitled to priority under section 507(a)(5).".

    (b) DETERMINATION OF TAX LIABILITY.—Section 505(a)(2) of title 11, United States Code, is amended—

      (1) in subparagraph (A), by striking "or" at the end;

      (2) in subparagraph (B), by striking the period at the end and inserting "; or"; and

      (3) by adding at the end the following:
      "(C) the amount or legality of any amount arising in connection with an ad valorem tax on real or personal property of the estate, if the applicable period for contesting or redetermining that amount under any law (other than a bankruptcy law) has expired.".

 

 

 

 

 

 


SEC. 702. TREATMENT OF FUEL TAX CLAIMS.

    Section 501 of title 11, United States Code, is amended by adding at the end the following:
    "(e) A claim arising from the liability of a debtor for fuel use tax assessed consistent with the requirements of section 31705 of title 49 may be filed by the base jurisdiction designated pursuant to the International Fuel Tax Agreement (as defined in section 31701 of title 49) and, if so filed, shall be allowed as a single claim.".


SEC. 703. NOTICE OF REQUEST FOR A DETERMINATION OF TAXES.

    Section 505(b) of title 11, United States Code, is amended—

      (1) in the first sentence, by inserting "at the address and in the manner designated in paragraph (1)" after "determination of such tax";

      (2) by striking "(1) upon payment" and inserting "(A) upon payment";

      (3) by striking "(A) such governmental unit" and inserting "(i) such governmental unit";

      (4) by striking "(B) such governmental unit" and inserting "(ii) such governmental unit";

      (5) by striking "(2) upon payment" and inserting "(B) upon payment";

      (6) by striking "(3) upon payment" and inserting "(C) upon payment";

      (7) by striking "(b)" and inserting "(2)"; and

      (8) by inserting before paragraph (2), as so designated, the following:
    "(b)(1)(A) The clerk shall maintain a list under which a Federal, State, or local governmental unit responsible for the collection of taxes within the district may—
      "(i) designate an address for service of requests under this subsection; and
      "(ii) describe where further information concerning additional requirements for filing such requests may be found.
    "(B) If such governmental unit does not designate an address and provide such address to the clerk under subparagraph (A), any request made under this subsection may be served at the address for the filing of a tax return or protest with the appropriate taxing authority of such governmental unit.".

 

 

 

 

 

 


SEC. 704. RATE OF INTEREST ON TAX CLAIMS.

    (a) IN GENERAL.—Subchapter I of chapter 5 of title 11, United States Code, is amended by adding at the end the following:

"Sec. 511. Rate of interest on tax claims

    "(a) If any provision of this title requires the payment of interest on a tax claim or on an administrative expense tax, or the payment of interest to enable a creditor to receive the present value of the allowed amount of a tax claim, the rate of interest shall be the rate determined under applicable nonbankruptcy law.
    "(b) In the case of taxes paid under a confirmed plan under this title, the rate of interest shall be determined as of the calendar month in which the plan is confirmed.".

    (b) CLERICAL AMENDMENT.—The table of sections for subchapter I of chapter 5 of title 11, United States Code, is amended by adding at the end the following:
      "511. Rate of interest on tax claims.".

 

 

 

 


SEC. 705. PRIORITY OF TAX CLAIMS.

    Section 507(a)(8) of title 11, United States Code, is amended—

      (1) in subparagraph (A)

        (A) in the matter preceding clause (i), by inserting "for a taxable year ending on or before the date of the filing of the petition" after "gross receipts";

        (B) in clause (i), by striking "for a taxable year ending on or before the date of the filing of the petition"; and

        (C) by striking clause (ii) and inserting the following:
          "(ii) assessed within 240 days before the date of the filing of the petition, exclusive of—
            "(I) any time during which an offer in compromise with respect to that tax was pending or in effect during that 240-day period, plus 30 days; and
            "(II) any time during which a stay of proceedings against collections was in effect in a prior case under this title during that 240-day period, plus 90 days."; and

      (2) by adding at the end the following:
      "An otherwise applicable time period specified in this paragraph shall be suspended for any period during which a governmental unit is prohibited under applicable nonbankruptcy law from collecting a tax as a result of a request by the debtor for a hearing and an appeal of any collection action taken or proposed against the debtor, plus 90 days; plus any time during which the stay of proceedings was in effect in a prior case under this title or during which collection was precluded by the existence of 1 or more confirmed plans under this title, plus 90 days.".

 

 

 

 

 

 


SEC. 706. PRIORITY PROPERTY TAXES INCURRED.

    Section 507(a)(8)(B) of title 11, United States Code, is amended by striking "assessed" and inserting "incurred".


SEC. 707. NO DISCHARGE OF FRAUDULENT TAXES IN CHAPTER 13.

    Section 1328(a)(2) of title 11, United States Code, as amended by section 314, is amended by striking "paragraph" and inserting "section 507(a)(8)(C) or in paragraph (1)(B), (1)(C),".


SEC. 708. NO DISCHARGE OF FRAUDULENT TAXES IN CHAPTER 11.

    Section 1141(d) of title 11, United States Code, as amended by sections 321 and 330, is amended by adding at the end the following:
    "(6) Notwithstanding paragraph (1), the confirmation of a plan does not discharge a debtor that is a corporation from any debt—
      "(A) of a kind specified in paragraph (2)(A) or (2)(B) of section 523(a) that is owed to a domestic governmental unit, or owed to a person as the result of an action filed under subchapter III of chapter 37 of title 31 or any similar State statute; or
      "(B) for a tax or customs duty with respect to which the debtor—
        "(i) made a fraudulent return; or
        "(ii) willfully attempted in any manner to evade or to defeat such tax or such customs duty.".

 

 

 

 


SEC. 709. STAY OF TAX PROCEEDINGS LIMITED TO PREPETITION TAXES.

    Section 362(a)(8) of title 11, United States Code, is amended by striking "the debtor" and inserting "a corporate debtor's tax liability for a taxable period the bankruptcy court may determine or concerning the tax liability of a debtor who is an individual for a taxable period ending before the date of the order for relief under this title".


SEC. 710. PERIODIC PAYMENT OF TAXES IN CHAPTER 11 CASES.

    Section 1129(a)(9) of title 11, United States Code, is amended—

      (1) in subparagraph (B), by striking "and" at the end;

      (2) in subparagraph (C), by striking "deferred cash payments," and all that follows through the end of the subparagraph, and inserting "regular installment payments in cash—
          "(i) of a total value, as of the effective date of the plan, equal to the allowed amount of such claim;
          "(ii) over a period ending not later than 5 years after the date of the order for relief under section 301, 302, or 303; and
          "(iii) in a manner not less favorable than the most favored nonpriority unsecured claim provided for by the plan (other than cash payments made to a class of creditors under section 1122(b)); and"; and

      (3) by adding at the end the following:
        "(D) with respect to a secured claim which would otherwise meet the description of an unsecured claim of a governmental unit under section 507(a)(8), but for the secured status of that claim, the holder of that claim will receive on account of that claim, cash payments, in the same manner and over the same period, as prescribed in subparagraph (C).".

 

 

 

 


SEC. 711. AVOIDANCE OF STATUTORY TAX LIENS PROHIBITED.

    Section 545(2) of title 11, United States Code, is amended by inserting before the semicolon at the end the following: ", except in any case in which a purchaser is a purchaser described in section 6323 of the Internal Revenue Code of 1986, or in any other similar provision of State or local law".


SEC. 712. PAYMENT OF TAXES IN THE CONDUCT OF BUSINESS.

    (a) PAYMENT OF TAXES REQUIRED.—Section 960 of title 28, United States Code, is amended—

      (1) by inserting "(a)" before "Any"; and

      (2) by adding at the end the following:
    "(b) A tax under subsection (a) shall be paid on or before the due date of the tax under applicable nonbankruptcy law, unless—
      "(1) the tax is a property tax secured by a lien against property that is abandoned under section 554 of title 11, within a reasonable period of time after the lien attaches, by the trustee in a case under title 11; or
      "(2) payment of the tax is excused under a specific provision of title 11.
    "(c) In a case pending under chapter 7 of title 11, payment of a tax may be deferred until final distribution is made under section 726 of title 11, if—
      "(1) the tax was not incurred by a trustee duly appointed or elected under chapter 7 of title 11; or
      "(2) before the due date of the tax, an order of the court makes a finding of probable insufficiency of funds of the estate to pay in full the administrative expenses allowed under section 503(b) of title 11 that have the same priority in distribution under section 726(b) of title 11 as the priority of that tax.".

    (b) PAYMENT OF AD VALOREM TAXES REQUIRED.—Section 503(b)(1)(B)(i) of title 11, United States Code, is amended by inserting "whether secured or unsecured, including property taxes for which liability is in rem, in personam, or both," before "except".

    (c) REQUEST FOR PAYMENT OF ADMINISTRATIVE EXPENSE TAXES ELIMINATED.—Section 503(b)(1) of title 11, United States Code, is amended—

      (1) in subparagraph (B), by striking "and" at the end;

      (2) in subparagraph (C), by adding "and" at the end; and

      (3) by adding at the end the following:
      "(D) notwithstanding the requirements of subsection (a), a governmental unit shall not be required to file a request for the payment of an expense described in subparagraph (B) or (C), as a condition of its being an allowed administrative expense;".

    (d) PAYMENT OF TAXES AND FEES AS SECURED CLAIMS.—Section 506 of title 11, United States Code, is amended—

      (1) in subsection (b), by inserting "or State statute" after "agreement"; and

      (2) in subsection (c), by inserting ", including the payment of all ad valorem property taxes with respect to the property" before the period at the end.

 

 

 

 

 

 

 

 


SEC. 713. TARDILY FILED PRIORITY TAX CLAIMS.

    Section 726(a)(1) of title 11, United States Code, is amended by striking "before the date on which the trustee commences distribution under this section;" and inserting the following: "on or before the earlier of—
        "(A) the date that is 10 days after the mailing to creditors of the summary of the trustee's final report; or
        "(B) the date on which the trustee commences final distribution under this section;".


SEC. 714. INCOME TAX RETURNS PREPARED BY TAX AUTHORITIES.

    Section 523(a) of title 11, United States Code, as amended by sections 215 and 224, is amended—

        (A) in the matter preceding clause (i), by inserting "or equivalent report or notice," after "a return,";

        (B) in clause (i), by inserting "or given" after "filed"; and

        (C) in clause (ii)

          (i) by inserting "or given" after "filed"; and

          (ii) by inserting ", report, or notice" after "return"; and

      (2) by adding at the end the following:
    "For purposes of this subsection, the term "return" means a return that satisfies the requirements of applicable nonbankruptcy law (including applicable filing requirements). Such term includes a return prepared pursuant to section 6020(a) of the Internal Revenue Code of 1986, or similar State or local law, or a written stipulation to a judgment or a final order entered by a nonbankruptcy tribunal, but does not include a return made pursuant to section 6020(b) of the Internal Revenue Code of 1986, or a similar State or local law.".

 

 

 

 


SEC. 715. DISCHARGE OF THE ESTATE'S LIABILITY FOR UNPAID TAXES.

    Section 505(b)(2) of title 11, United States Code, as amended by section 703, is amended by inserting "the estate," after "misrepresentation,".


SEC. 716. REQUIREMENT TO FILE TAX RETURNS TO CONFIRM CHAPTER 13 PLANS.

    (a) FILING OF PREPETITION TAX RETURNS REQUIRED FOR PLAN CONFIRMATION.—Section 1325(a) of title 11, United States Code, as amended by sections 102, 213, and 306, is amended by inserting after paragraph (8) the following:
      "(9) the debtor has filed all applicable Federal, State, and local tax returns as required by section 1308.".

    (b) ADDITIONAL TIME PERMITTED FOR FILING TAX RETURNS.—

       IN GENERAL.—Subchapter I of chapter 13 of title 11, United States Code, is amended by adding at the end the following:

"Sec. 1308. Filing of prepetition tax returns

    "(a) Not later than the day before the date on which the meeting of the creditors is first scheduled to be held under section 341(a), if the debtor was required to file a tax return under applicable nonbankruptcy law, the debtor shall file with appropriate tax authorities all tax returns for all taxable periods ending during the 4-year period ending on the date of the filing of the petition.

    "(b)(1) Subject to paragraph (2), if the tax returns required by subsection (a) have not been filed by the date on which the meeting of creditors is first scheduled to be held under section 341(a), the trustee may hold open that meeting for a reasonable period of time to allow the debtor an additional period of time to file any unfiled returns, but such additional period of time shall not extend beyond—

      "(A) for any return that is past due as of the date of the filing of the petition, the date that is 120 days after the date of that meeting; or

      "(B) for any return that is not past due as of the date of the filing of the petition, the later of—

        "(i) the date that is 120 days after the date of that meeting; or

        "(ii) the date on which the return is due under the last automatic extension of time for filing that return to which the debtor is entitled, and for which request is timely made, in accordance with applicable nonbankruptcy law.

    "(2) After notice and a hearing, and order entered before the tolling of any applicable filing period determined under this subsection, if the debtor demonstrates by a preponderance of the evidence that the failure to file a return as required under this subsection is attributable to circumstances beyond the control of the debtor, the court may extend the filing period established by the trustee under this subsection for—

      "(A) a period of not more than 30 days for returns described in paragraph (1); and

      "(B) a period not to extend after the applicable extended due date for a return described in paragraph (2).

    "(c) For purposes of this section, the term "return" includes a return prepared pursuant to subsection (a) or (b) of section 6020 of the Internal Revenue Code of 1986, or a similar State or local law, or a written stipulation to a judgment or a final order entered by a nonbankruptcy tribunal.".

      (2) CONFORMING AMENDMENT.—The table of sections for subchapter I of chapter 13 of title 11, United States Code, is amended by adding at the end the following:
      "1308. Filing of prepetition tax returns.".

    (c) DISMISSAL OR CONVERSION ON FAILURE TO COMPLY.—Section 1307 of title 11, United States Code, is amended—

      (1) by redesignating subsections (e) and (f) as subsections (f) and (g), respectively; and

      (2) by inserting after subsection (d) the following:
    "(e) Upon the failure of the debtor to file a tax return under section 1308, on request of a party in interest or the United States trustee and after notice and a hearing, the court shall dismiss a case or convert a case under this chapter to a case under chapter 7 of this title, whichever is in the best interest of the creditors and the estate.".

    (d) TIMELY FILED CLAIMS.—Section 502(b)(9) of title 11, United States Code, is amended by inserting before the period at the end the following: ", and except that in a case under chapter 13, a claim of a governmental unit for a tax with respect to a return filed under section 1308 shall be timely if the claim is filed on or before the date that is 60 days after the date on which such return was filed as required".

    (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; and

      (2) in addition to the provisions of Rule 3007, in a case under chapter 13 of title 11, United States Code, that no objection to a claim for a tax with respect to which a return is required to be filed under section 1308 of title 11, United States Code, shall be filed until such return has been filed as required.

 

 

 

 

 

 

 

 

 

 

 

 

 

 


SEC. 717. STANDARDS FOR TAX DISCLOSURE.

    Section 1125(a)(1) of title 11, United States Code, is amended—

      (1) by inserting "including a discussion of the potential material Federal tax consequences of the plan to the debtor, any successor to the debtor, and a hypothetical investor typical of the holders of claims or interests in the case," after "records,"; and

      (2) by striking "a hypothetical reasonable investor typical of holders of claims or interests" and inserting "such a hypothetical investor".


SEC. 718. SETOFF OF TAX REFUNDS.

    Section 362(b) of title 11, United States Code, as amended by sections 224, 303, 311, and 401, is amended by inserting after paragraph (25) the following:
      "(26) under subsection (a), of the setoff under applicable nonbankruptcy law of an income tax refund, by a governmental unit, with respect to a taxable period that ended before the date of the order for relief against an income tax liability for a taxable period that also ended before the date of the order for relief, except that in any case in which the setoff of an income tax refund is not permitted under applicable nonbankruptcy law because of a pending action to determine the amount or legality of a tax liability, the governmental unit may hold the refund pending the resolution of the action, unless the court, on the motion of the trustee and after notice and a hearing, grants the taxing authority adequate protection (within the meaning of section 361) for the secured claim of such authority in the setoff under section 506(a);".


SEC. 719. SPECIAL PROVISIONS RELATED TO THE TREATMENT OF STATE AND LOCAL TAXES.

    (a) IN GENERAL.—

      (1) SPECIAL PROVISIONS.—Section 346 of title 11, United States Code, is amended to read as follows:

"Sec. 346. Special provisions related to the treatment of State and local taxes

    "(a) Whenever the Internal Revenue Code of 1986 provides that a separate taxable estate or entity is created in a case concerning a debtor under this title, and the income, gain, loss, deductions, and credits of such estate shall be taxed to or claimed by the estate, a separate taxable estate is also created for purposes of any State and local law imposing a tax on or measured by income and such income, gain, loss, deductions, and credits shall be taxed to or claimed by the estate and may not be taxed to or claimed by the debtor. The preceding sentence shall not apply if the case is dismissed. The trustee shall make tax returns of income required under any such State or local law.
    "(b) Whenever the Internal Revenue Code of 1986 provides that no separate taxable estate shall be created in a case concerning a debtor under this title, and the income, gain, loss, deductions, and credits of an estate shall be taxed to or claimed by the debtor, such income, gain, loss, deductions, and credits shall be taxed to or claimed by the debtor under a State or local law imposing a tax on or measured by income and may not be taxed to or claimed by the estate. The trustee shall make such tax returns of income of corporations and of partnerships as are required under any State or local law, but with respect to partnerships, shall make such returns only to the extent such returns are also required to be made under such Code. The estate shall be liable for any tax imposed on such corporation or partnership, but not for any tax imposed on partners or members.
    "(c) With respect to a partnership or any entity treated as a partnership under a State or local law imposing a tax on or measured by income that is a debtor in a case under this title, any gain or loss resulting from a distribution of property from such partnership, or any distributive share of any income, gain, loss, deduction, or credit of a partner or member that is distributed, or considered distributed, from such partnership, after the commencement of the case, is gain, loss, income, deduction, or credit, as the case may be, of the partner or member, and if such partner or member is a debtor in a case under this title, shall be subject to tax in accordance with subsection (a) or (b).
    "(d) For purposes of any State or local law imposing a tax on or measured by income, the taxable period of a debtor in a case under this title shall terminate only if and to the extent that the taxable period of such debtor terminates under the Internal Revenue Code of 1986.
    "(e) The estate in any case described in subsection (a) shall use the same accounting method as the debtor used immediately before the commencement of the case, if such method of accounting complies with applicable nonbankruptcy tax law.
    "(f) For purposes of any State or local law imposing a tax on or measured by income, a transfer of property from the debtor to the estate or from the estate to the debtor shall not be treated as a disposition for purposes of any provision assigning tax consequences to a disposition, except to the extent that such transfer is treated as a disposition under the Internal Revenue Code of 1986.
    "(g) Whenever a tax is imposed pursuant to a State or local law imposing a tax on or measured by income pursuant to subsection (a) or (b), such tax shall be imposed at rates generally applicable to the same types of entities under such State or local law.
    "(h) The trustee shall withhold from any payment of claims for wages, salaries, commissions, dividends, interest, or other payments, or collect, any amount required to be withheld or collected under applicable State or local tax law, and shall pay such withheld or collected amount to the appropriate governmental unit at the time and in the manner required by such tax law, and with the same priority as the claim from which such amount was withheld or collected was paid.

    "(i)(1) To the extent that any State or local law imposing a tax on or measured by income provides for the carryover of any tax attribute from one taxable period to a subsequent taxable period, the estate shall succeed to such tax attribute in any case in which such estate is subject to tax under subsection (a).

    "(2) After such a case is closed or dismissed, the debtor shall succeed to any tax attribute to which the estate succeeded under paragraph (1) to the extent consistent with the Internal Revenue Code of 1986.

    "(3) The estate may carry back any loss or tax attribute to a taxable period of the debtor that ended before the date of the order for relief under this title to the extent that—

      "(A) applicable State or local tax law provides for a carryback in the case of the debtor; and

      "(B) the same or a similar tax attribute may be carried back by the estate to such a taxable period of the debtor under the Internal Revenue Code of 1986.

    "(j)(1) For purposes of any State or local law imposing a tax on or measured by income, income is not realized by the estate, the debtor, or a successor to the debtor by reason of discharge of indebtedness in a case under this title, except to the extent, if any, that such income is subject to tax under the Internal Revenue Code of 1986.

    "(2) Whenever the Internal Revenue Code of 1986 provides that the amount excluded from gross income in respect of the discharge of indebtedness in a case under this title shall be applied to reduce the tax attributes of the debtor or the estate, a similar reduction shall be made under any State or local law imposing a tax on or measured by income to the extent such State or local law recognizes such attributes. Such State or local law may also provide for the reduction of other attributes to the extent that the full amount of income from the discharge of indebtedness has not been applied.

    "(k)(1) Except as provided in this section and section 505, the time and manner of filing tax returns and the items of income, gain, loss, deduction, and credit of any taxpayer shall be determined under applicable nonbankruptcy law.

    "(2) For Federal tax purposes, the provisions of this section are subject to the Internal Revenue Code of 1986 and other applicable Federal nonbankruptcy law.".

      (2) CLERICAL AMENDMENT.—The table of sections for chapter 3 of title 11, United States Code, is amended by striking the item relating to section 346 and inserting the following:
      "346. Special provisions related to the treatment of State and local taxes.".

    (b) CONFORMING AMENDMENTS.—Title 11 of the United States Code is amended—

      (1) by striking section 728;

      (2) in the table of sections for chapter 7 by striking the item relating to section 728;

      (3) in section 1146

        (A) by striking subsections (a) and (b); and

        (B) by redesignating subsections (c) and (d) as subsections (a) and (b), respectively; and

      (4) in section 1231

        (A) by striking subsections (a) and (b); and

        (B) by redesignating subsections (c) and (d) as subsections (a) and (b), respectively.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 


SEC. 720. DISMISSAL FOR FAILURE TO TIMELY FILE TAX RETURNS.

    Section 521 of title 11, United States Code, as amended by sections 106, 225, 305, 315, and 316, is amended by adding at the end the following:

    "(j)(1) Notwithstanding any other provision of this title, if the debtor fails to file a tax return that becomes due after the commencement of the case or to properly obtain an extension of the due date for filing such return, the taxing authority may request that the court enter an order converting or dismissing the case.

    "(2) If the debtor does not file the required return or obtain the extension referred to in paragraph (1) within 90 days after a request is filed by the taxing authority under that paragraph, the court shall convert or dismiss the case, whichever is in the best interests of creditors and the estate.".


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