Case KRH Doc 2789 Filed 06/27/16 Entered 06/27/16 15:38:23 Desc Main Document Page 1 of 6

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1 Document Page 1 of 6 UNITED STATES BANKRUPTCY COURT EASTERN DISTRICT OF VIRGINIA Richmond Division In Re: ALPHA NATURAL RESOURCES, INC., et al, Debtors. Chapter 11 Case No (KRH) (Jointly Administered) WISE COUNTY TREASURER S OBJECTION TO CONFIRMATION COMES NOW, the Wise County Treasurer, ( Wise ) by and through counsel, and objects to confirmation of the Debtors proposed joint plan on the following grounds: BACKGROUND 1. Alpha Natural Resources, Inc. and numerous of its direct and indirect subsidiaries ( the debtors ) filed for relief under Chapter 11 of the United States Bankruptcy Code on August 3, The debtors conduct mining, mineral processing and other business activities in a number of Virginia localities, including Wise County, Virginia, where they are subject to local taxation for real estate, mineral, and business personal property including machinery and tools tax. 3. Wise has timely filed with the Bankruptcy Court and through KCC, the designated claims agent, the following claims: Mark K. Ames, VSB #27409 Taxing Authority Consulting Services, P.C. P.O. Box Henrico, VA (804) FAX (804) mark@taxva.com

2 Document Page 2 of 6 a. Claim No was filed for Debtor Alpha Natural Resources, LLC, as a secured claim in the amount of $440, for machinery and tools and b. Claim No was filed for Debtor Alpha Coal Sales Co., LLC, as a secured claim in the amount of $ for machinery and tools and personal property for the year c. Claim No was filed for Debtor Pigeon Creek Processing Corporation, as a secured claim in the amount of $51, for machinery and tools and d. Claim No was filed for Debtor Paramont Coal Company, LLC, as a secured claim in the amount of $351, for real estate/mineral taxes for the year e. Claim No was filed for Debtor North Fork Coal Corporation, as a secured claim in the amount of $96, for machinery and tools and f. Claim No was filed for Debtor Mill Branch Coal Corporation, as a secured claim in the amount of $135, for machinery and tools and g. Claim No was filed for Debtor Maxxim Shared Services, LLC, as a secured claim in the amount of $51, for real estate/mineral taxes, machinery and tools and 2

3 Document Page 3 of 6 h. Claim No was filed for Debtor Maxxim Rebuild Co., LLC, as a secured claim in the amount of $327, for real estate/mineral taxes, machinery and tools and i. Claim No was filed for Debtor Knox Creek Coal Corporation, as a secured claim in the amount of $ for machinery and tools and personal property for the year j. Claim No was filed for Debtor Dickenson-Russell Coal Company, LLC, as a secured claim in the amount of $ for machinery and tools and k. Claim No was filed for Debtor Cumberland Coal Resources, LP, as a secured claim in the amount of $1, for machinery and tools and l. Claim No was filed for Debtor Black Mountain Cumberland Resources, Inc., as a secured claim in the amount of $ for machinery and tools and personal property for the year 2015 m. Claim No was filed for Debtor Alpha Natural Resources, LLC, as a secured claim in the amount of $ for machinery and tools and personal property for the year Prior to the filing of their bankruptcy petitions and thereafter, the debtors had filed personal property tax returns and other reports with the assessing officer of Wise County. Taxes were duly assessed on real estate and per item on the personal property scheduled in the filed returns and were due to be paid by October 31, These taxes remain unpaid as of the date of this objection. 3

4 Document Page 4 of 6 OBJECTION 5. Pursuant to Code of Virginia and -3340, there shall be a lien prior to all other encumbrances and security interests for local taxes assessed per item or in bulk against tangible personal property and for real estate taxes. Under Code of Virginia and , local taxes are assessed as of January 1 st of each year. As of January 1, 2015, Wise held and continues to hold a first priority lien upon all real or personal property under assessment. 6. As an oversecured creditor, Wise is entitled to (i) post-petition, pre- Effective Date interest under 11 U.S.C. 506(b), and (ii) post-effective Date interest for any period during which its secured claim remains unpaid. The interest rate for unpaid taxes under Code of Virginia is 10%. Plan Art. V.G.2.excludes interest on claims unless specifically provided for and no contrary interest provision for taxes is readily discernable in the plan or related documents despite the fact that the plan treats Wise as an unimpaired Other Secured Claims Class 5 creditor without the right to vote on the plan. To the extent the plan does not provide for interest on these tax claims it cannot be confirmed under 11 U.S.C. 1129(a)(1) and (2) which required compliance with all applicable provisions of Title The plan does not include default provisions for the payment of Wise taxes. The confirmation order should provide the following default provisions: A. If the debtors fail to make any payment provided for in the plan, fail to pay any currently accruing tax liability, fail to make any payment or deposit of any tax to Wise within 15 days of the due date of such deposit or payment, or if the debtors fail to file any required returns by the due date of such return, then Wise may declare that the applicable debtor is in default of the plan. The debtor has 30 days after notice of a default to cure a default. 4

5 Document Page 5 of 6 B. If Wise declares any of the debtors in default of their obligations under the plan and the debtor has not cured the default, then the entire unpaid amount of debtor s tax liabilities claimed in this case, shall be accelerated and shall be due and payable immediately upon written demand to the debtor. C. If full payment is not made within 30 days of such demand, then Wise may collect the total amount of debtor's tax liabilities through the administrative collection provisions of the Code of Virginia. D. The discharge granted by 11 U.S.C. 1141(d) is modified as to the county tax debt provided for in this plan, and the discharge of any county tax debt under the Plan shall not be effective until all of the county tax debts provided for under the Plan have been paid in accordance with the Plan. WHEREFORE, Wise objects to the plan proposed in this case unless and until the Debtors address the objections as stated above, and for such other and further relief, which may be deemed appropriate. Respectfully submitted, Treasurer Wise County, Virginia BY: /s/ Mark K. Ames Mark K. Ames, VSB #27409 Jeffrey A. Scharf. VSB #30591 Taxing Authority Consulting Services, P.C. P.O. Box Henrico, VA (804) mark@taxva.com 5

6 Document Page 6 of 6 CERTIFICATE OF SERVICE I hereby certify that a true copy of this Objection was transmitted on this 27 th day of June 2016, via ECF to debtor s counsel, the office of the US Trustee and all parties requesting notice as well as through First Class mail to the following recipients: Jones Day Davis Polk & Wardell LLP Attn: Carl E. Black, Esq. Attn: Damian S. Schaible, Esq. 901 Lakeside Avenue Attn: Damon P. Meyer, Esq. Cleveland, Ohio Levington Avenue New York, New York Jones Day Attn: Jeffrey B. Ellman, Esq. McGuireWoods LLP North Point, 1420 Peachtreet St. NE Attn: Dion W. Hayes, Esq. Suite 800 Attn: Sarah B. Boehm, Esq. Atlanta, Georgia Attn: K. Elizabeth Sieg, Esq. Gateway Plaza Hunton & Williams LLP 800 East Canal Street Attn: Tyler Brown, Esq. Richmond, Virginia Riverfront Plaza, East Tower 951 East Byrd Street Kutak Rock LLP Richmond, Virginia Attn: Michael A Condyles, Esq East Main Street Milbank, Tweed, Hadley & McCloy LLP Richmond, Virginia Attn: Evan R. Fleck, Esq. Attn: Eric K. Stodola, Esq. Alpha Natural Resources 28 Liberty Street Attn: Richard H. Verheij, Esq. New York, New York Attn: Mark Manno, Esq. One Alpha Place, PO BOX Kirland & Ellis LLP Bristol, Virginia Attn: Paul M. Basta, Esq. Attn: Stephen E. Hessler, Esq. Sands Anderson PC Attn: Brian E. Schartz, Esq. Attn: William A. Gray, Esq. 601 Lexington Ave East Main Street New York, New York Richmond, Virginia /s/ Mark K. Ames Mark K. Ames 6