THE UNITED STATES BANKRUPTCY COURT FOR THE EASTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION

Transcription

1 THE UNITED STATES BANKRUPTCY COURT FOR THE EASTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION In re: Chapter 11 GROEB FARMS, INC. Case No Debtor. Honorable Walter Shapero MOTION FOR ENTRY OF AN ORDER PURSUANT TO 11 U.S.C. 105(A AND 507(A(8 AUTHORIZING THE DEBTOR TO PAY PREPETITION FUEL AND TRANSPORTATION TAXES, CORPORATE ACTIVITY TAXES AND OTHER TAXES, FEES, AND OTHER SIMILAR CHARGES AND RELATED OBLIGATIONS Groeb Farms, Inc. (the Debtor, by and through its counsel, Foley & Lardner LLP, hereby moves (the Motion this Court for entry of an order, substantially in the form attached hereto as Exhibit 1, pursuant to sections 105(a and 507(A(8 of the United States Code (as amended, the Bankruptcy Code, authorizing the Debtor to pay prepetition fuel and transportation taxes, corporate activity taxes, and other similar taxes along with various fees, license and other similar charges and assessments or related obligations. In further support of this Motion, the Debtor respectfully states as follows: Jurisdiction 1. This Court has jurisdiction to hear the Motion pursuant to 28 U.S.C. 157 and This matter is a core proceeding within the meaning of 28 U.S.C. 157(b(2. Venue of this proceeding and the Motion is proper in this District pursuant to 28 U.S.C and The bases for the relief requested herein are Sections 105(a and 507(a(8 of the Bankruptcy Code wsd Doc 130 Filed 10/25/13 Entered 10/25/13 15:22:09 Page 1 of 10

2 Factual Background 2. On October 1, 2013 (the Petition Date, the Debtor filed a petition for relief under chapter 11 of the United States Bankruptcy Code, 11 U.S.C , as amended (the Bankruptcy Code, commencing this chapter 11 case. The Debtor intends to continue in possession of its property and to manage its business as debtor-in-possession pursuant to Sections 1107(a and 1108 of the Bankruptcy Code. On October 9, 2013, the Office of the United States Trustee (the U.S. Trustee appointed a committee of unsecured creditors in the case. No trustee or examiner has been appointed. 3. The Debtor was formed in 1981 and is the country s leading processor and packager of honey for food manufacturers and food service companies. 4. The Debtor is headquartered in Onsted, Michigan. The Debtor also operates a honey processing facility in San Bernardino, California, and maintains a testing lab in Belleview, Florida. 5. Additional factual background relating to the Debtor, including its corporate structure, business operations, and the circumstances leading to the filing of the chapter 11 case is set forth in detail in the Declaration of Jack Irvin, Jr. in Support of Chapter 11 Petitions and First Day Motions, filed at Dkt No. 15, and fully incorporated herein by reference. Relief Requested 6. By this Motion, the Debtor requests entry of an order pursuant to sections 105(a and 507(a(8 of the Bankruptcy Code authorizing it to pay, in its sole discretion, prepetition fuel and transportation taxes, corporate activity taxes, and other similar taxes along with various fees, license and other similar charges and assessments or related obligations detailed herein to the respective authorities in the ordinary course of the Debtor s business. The Debtor further requests that nothing herein, however, shall preclude the Debtor from contesting, in its sole wsd Doc 130 Filed 10/25/13 Entered 10/25/13 15:22:09 Page 2 of 10

3 discretion, the validity and amount of any claim for payment of the fees, taxes and charges detailed herein. 7. The Debtor further requests that all depositories on which checks were drawn in payment of prepetition amounts paid to the authorities be ordered to clear such checks as and when presented for payment; provided however, that (a funds are available in the Debtor s accounts to cover such checks, and (b all such depositories are authorized to rely on the Debtor s designation of any particular check as approved by the attached proposed order approving this Motion. The Debtor further requests that they be authorized to reissue any check which was drawn in payment of prepetition amounts approved herein that is not cleared by a depository. Basis For Relief 8. In connection with the normal operation of its business, the Debtor (a pays to various taxing authorities various fuel and transportation taxes (collectively, Transportation Taxes, (b is charged and pays corporate activity taxes ( CAT Taxes in order to continue to conduct business in certain states, and (c is charged fees, license and other similar charges and assessments (collectively, the Fees by various taxing and licensing authorities. The Transportation Taxes, CAT Taxes, and Fees are paid to various taxing and licensing authorities (collectively, the Authorities on a periodic basis (monthly, quarterly or yearly, depending on the particular Transportation Taxes, CAT Taxes, or Fees. 9. At this time, the Debtor estimates that the outstanding prepetition Transportation Taxes and CAT Taxes include, but are not limited to, the following: i. IFTA Quarterly Fuel Use Taxes in the amount of $1,065.00, which are owed to the Michigan Department of Treasury, and which relate to the second quarter of 2013 ending on June 30, 2013; wsd Doc 130 Filed 10/25/13 Entered 10/25/13 15:22:09 Page 3 of 10

4 ii. IFTA Quarterly Fuel Use Taxes in the amount of $1,344.24, which are owed to the Michigan Department of Treasury, and which relate to the third quarter of 2013 ending on September 30, 2013; iii. Quarterly CAT Taxes owed to the State of Ohio in the amount of $113.00, for the third quarter of 2013 ending on September 30, 2013; iv. Highway use taxes owed to the New York State Department of Taxation and Finance for third quarter of 2013 ending on September 30, 2013, in the amount of $139.99; and v. Transportation taxes owed to the Commonwealth of Kentucky in the amount of $ for the quarter ending September 30, Applicable Authority 10. Section 105(a of the Bankruptcy Code provides as follows: The court may issue any order, process, or judgment that is necessary or appropriate to carry out the provisions of this title. No provision of this title providing for the raising of an issue by a party in interest shall be construed to preclude the court from, sua sponte, taking any action or making any determination necessary or appropriate to enforce or implement court orders or rules, or to prevent an abuse of process. 11 U.S.C. 105(a. This section allows bankruptcy courts broad authority and discretion to enforce the provisions of the Bankruptcy Code either under specific statutory ore equitable common law principles. 11. The purpose of section 105(a is to assure the Bankruptcy Court s power to take whatever action is appropriate or necessary in aid of the exercise of its jurisdiction. 2 Collier on Bankruptcy , at (15th ed Thus, section 105(a essentially codifies the bankruptcy court s inherent equitable powers; see United States v. Energy Resources Co., 495 U.S. 545, 549 (1990 (section 105 is consistent with the traditional understanding that bankruptcy courts are courts of equity and have broad authority; see also In re Global Precious Metals, Inc. 143 B.R. 204, 206 (Bankr. N.D. Ill (court s equitable power derived from section wsd Doc 130 Filed 10/25/13 Entered 10/25/13 15:22:09 Page 4 of 10

5 12. Numerous courts have used their section 105(a powers under the doctrine of necessity 1 to authorize payment of a debtor-in-possession s prepetition obligations where, as here, such payment is an essential element to prevent the debtor-in-possession from going into liquidation and preserve the debtor-in-possession s potential for rehabilitation. See In re Lehigh New England Ry.Co., 657 F.2d 570, 581 (3rd. Cir. 1981; see In re Patrick Cudahy, Inc., No (Bankr. E.D. Wis. Mar. 2, 1998; In re Mercury Fin. Co., 249 B.R. 490, 494 (Bankr. N.D. Ill (the court permitted to pay trade creditors and other prepetition accounts under doctrine of necessity; In re NVR L.P., 147 B.R. 126, 127 (Bankr. E.D. Va ( Under [section 105 of the Bankruptcy Code] the court can permit pre-plan payment of a pre-petition obligation when essential to the continued operation of the debtor. ; see also In re Just for Feet, Inc., 242 B.R. 821, 824 (D. Del ( courts have used their equitable power under section 105(a... to authorize the payment of pre-petition claims when such payment is deemed necessary to the survival of a debtor in a chapter 11 reorganization ; In re CoServ, L.L.C., 273 B.R. 487, 497 (Bankr. N.D. Tex (reasoning that because the debtor-in-possession has fiduciary duties it must meet, it is logical that the bankruptcy court may authorize satisfaction of [a] prepetition claim in aid of preservation or enhancement of the estate under 105(a.; In re Synteen Techs., Inc., No W, 200 WL , at *2 (Bankr. D.S.C. Apr. 14, 2000 (courts have permission to allow payment of a pre-petition claim when essential to the continued operation of the debtor (internal citation omitted; In re Gulf Air, Inc., 112 B.R. 152, 153 (Bankr. W.D. La. 1989; In re Ionosphere Clubs, Inc., 98 B.R. 174, (Bankr. S.D.N.Y (citing 1 The doctrine of necessity is an outgrowth of the necessity of payment rule, first articulated in Miltenberger v. Logansport, C. & S.W. Ry. Co., 106 U.S. 286, (1882 (payment of pre-receivership claim prior to completion of reorganization permitted to prevent stoppage of... [crucial] business relations.... The necessity of payment rule applies to railroad reorganizations; the doctrine of necessity serves a similar function in chapter 11 cases. Each, however, recognizes the existence of judicial power to authorize a debtor-in-possession to pay prepetition claims if vital to its continued operations wsd Doc 130 Filed 10/25/13 Entered 10/25/13 15:22:09 Page 5 of 10

6 NLRB v. Bildisco & Bildisco, 465 U.S. 513, 528 (1984; see generally Russell A. Eisenberg and Frances Gecker, The Doctrine of Necessity and its Parameters, 73 MARQ. L. REV. 1 (1989 (arguing that, although the doctrine of necessity should be used sparingly, it is a vital tool that can and should be used to further the purposes of Chapter In addition, it has been noted that the necessity of payment doctrine demonstrates the courts understanding that paying certain prepetition claims may be necessary to realize the goal of chapter 11 a successful reorganization. Just for Feet, 242 B.R. at ; see also In re Ionosphere Clubs, Inc., 98 B.R. at 175 (use of equitable powers to authorize the payment of pre-petition debt when such payment is needed to facilitate the rehabilitation of the debtor is not a novel concept ; Gulf Air, 112 B.R. at (authorization to pay certain prepetition employee-related expenses was in the best interest of creditors, the [d]ebtor, and its employees, and is necessary, in fact, indispensable at this time for any successful reorganization ; In re Michigan Interstate Ry. Co., 87 B.R. 921, 925 (Bankr. E.D. Mich. 1988; In re Columbia Gas System, Inc., 171 B.R. 189, (Bankr. D. Del. 1994; In re SIS Corp., 108 B.R. 608, (Bankr. N.D. Ohio 1989 (recognizing that courts may authorize payments of prepetition claims where overriding practical and policy reasons so dictate. 14. The doctrine of necessity is frequently invoked early in reorganization cases, during the so-called breathing spell, when it is vital to the reorganization of a Chapter 11 debtor. For example, in In re Structurlite Plastics Corp. 86 B.R. 922 (Bankr. S.D. Ohio 1988, the court embraced the principle that a bankruptcy court may exercise its equity powers under section 105(a to authorize payment of pre-petition claims where such payment is necessary to permit the greatest likelihood of survival of the debtor.... Id. at 931 (citing In re Chateaugay Corp., 80 B.R. 279, 287 (S.D.N.Y The Structurlite Court explained that a wsd Doc 130 Filed 10/25/13 Entered 10/25/13 15:22:09 Page 6 of 10

7 per se rule proscribing the payment of pre-petition indebtedness may well be too inflexible to permit the effectuation of the rehabilitative purposes of the Code. Id. at 932. Flexibility of payment is particularly critical when the prepetition creditor provides vital goods or services to the debtor. See In re Patrick Cudahy, Inc., Case No (Bankr. E.D. Wis This doctrine also has been invoked if nonpayment of a prepetition obligation would trigger a withholding of goods or services essential to the debtor s business reorganization plan. See e.g., In re UNR Indus., Inc., 143 B.R. 506, 520 (Bankr. N.D. Ill. 1992, rev d and remanded on other grounds, 173 B.R. 149 (N.D. Ill ( [T]he Necessity Doctrine may be used to permit a debtor to pay pre-petition claims of suppliers or employees whose continued cooperation is essential to the debtor s successful reorganization. ; see also Ionosphere Clubs, 98 B.R. at (section 105 empowers bankruptcy courts to authorize payment of prepetition debt when such payment is needed to facilitate the rehabilitation of the debtor. 16. The timely payment of the Transportation Taxes, CAT Taxes and Fees is necessary and in the best interests of the Debtor s estate. The Debtor needs to be able to operate trucks in various states and use the roadways and highways in various states in order to operate its business. In other comparable Chapter 11 cases, courts have authorized the debtor-inpossession to pay a variety of prepetition claims of creditors, including claims similar to the Transportation Taxes, CAT Taxes and Fees at issue here, under Section 105(a of the Bankruptcy Code. See, e.g., In re UAL Corp., Case No. 02 B48191 (BJW (Bankr. N.D. Ill. Dec. 9, 2002 (order authorizing payment of taxes and fees, including sales and use and franchise taxes, and transportation taxes, and passenger facility charges; In re U.S. Airways Group, Inc., Case No (SSM (Bankr. E.D. Vir. Aug. 12, 2002 (same; In re National Steel Corp., Case No (AHS (Bankr. N.D. Ill. Mar. 6, 2002; In re K-Mart, Case No (SPS wsd Doc 130 Filed 10/25/13 Entered 10/25/13 15:22:09 Page 7 of 10

8 (Bankr. N.D. Ill. Jan. 25, 2002 (order authorizing payment of all sales and use taxes; Trans World Airlines, Inc., Case No (SLR (Bankr. D. Del. Jan. 10, The Debtor submits that the circumstances warrant similar relief in these chapter 11 cases. 17. The Debtor submits that in some states officers and directors of the collecting entity may be held personally liable for the payment of certain taxes and/or fees to the Authorities. To the extent any accrued Transportation Taxes, CAT Taxes, or Fees of the Debtor were unpaid as of the Petition Date in such jurisdictions, the Debtor s officers and directors may be subject to lawsuits in such jurisdictions during the pendency of these proceedings. Such potential lawsuits would distract (a the Debtor, (b the named officers and directors whose attention to the Debtor s reorganization process is required, and (c this Court, which might be asked to entertain various motions seeking injunctions with respect to the potential state court actions. In addition, the threat of personal liability in a lawsuit could cause the officers and directors to resign. Such resignations at this time would be disruptive to the Debtor s reorganization efforts and detrimental to the preservation of the estates. Therefore, it is in the best interests of the Debtor s estate and the Debtor s prospects for reorganization to eliminate the possibility of the foregoing distractions. 18. Most, if not all, of the Transportation Taxes, CAT Taxes, and Fees are entitled to priority status under Section 507(a(8 of the Bankruptcy Code and thus should be paid in full under any plan of reorganization. 11 U.S.C. 1129(a(9(c (plan must pay in full all unsecured claims of governmental units specified in Section 507(a(8 of the Bankruptcy Code. Thus, the Debtor s payment of the Transportation Taxes, CAT Taxes, and Fees at this time in all likelihood will only affect the timing of the payments and not the amounts to be received by such entities wsd Doc 130 Filed 10/25/13 Entered 10/25/13 15:22:09 Page 8 of 10

9 Other creditors and parties-in-interest therefore will not be prejudiced if the relief sought herein is granted by this Court. 19. The Debtor believes that some, if not all, of the Authorities will cause the Debtor to be audited if the Transportation Taxes, CAT Taxes, and Fees that Debtor owes, but have not yet paid, are not paid when due, and may even attempt to suspend the Debtor s business operations. Such audits will disrupt the Debtor s business activities and will materially affect the Debtor s reorganization prospects and unnecessarily divert the Debtor s attention away from the successful launch and prosecution of the chapter 11 cases. Without a question, the payment of the Transportation Taxes, CAT Taxes, and Fees is necessary here to avoid interruption of the Debtor s business activities. Notice 20. Notice of this Motion shall be provided in accordance with this Court s Order limiting notice and establishing notice procedures [Docket No. 0040]. The Debtor submits that in light of the nature of the relief requested, no further notice is required. A proposed Notice and Opportunity to Object is attached hereto as Exhibit 2. No Prior Request 21. No previous request for the relief sought herein has been made to this Court or any other court. WHEREFORE, the Debtor respectfully requests that the Court enter an order, substantially in the form attached hereto as Exhibit 1, authorizing the Debtor to (a pay prepetition fuel and transportation taxes, corporate activity taxes, and other similar taxes along with various fees, license and other similar charges and assessments or related obligations to the respective Authorities in the ordinary course of the Debtor s business; (b authorizing and wsd Doc 130 Filed 10/25/13 Entered 10/25/13 15:22:09 Page 9 of 10

10 directing applicable banks and other financial institutions to receive, process, honor and pay all checks presented for payment, and (c granting such other and further relief as is just and proper. Dated: October 25, 2013 Detroit, Michigan FOLEY & LARDNER LLP /s/ John A. Simon Judy A. O Neill (P32142 John A. Simon (P61866 Tamar N. Dolcourt (P73425 One Detroit Center 500 Woodward Ave., Suite 2700 Detroit, MI ( (Telephone ( (Facsimile Counsel for the Debtor and Debtor in Possession wsd Doc 130 Filed 10/25/13 Entered 10/25/13 15:22:09 Page 10 of 10

11 EXHIBIT 1 Proposed Form of Order wsd Doc Filed 10/25/13 Entered 10/25/13 15:22:09 Page 1 of 3

12 THE UNITED STATES BANKRUPTCY COURT FOR THE EASTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION In re: Chapter 11 GROEB FARMS, INC. Case No Debtor. Honorable Walter Shapero ORDER PURSUANT TO 11 U.S.C. 105(A, AND 507(A(8 AUTHORIZING THE DEBTOR TO PAY PREPETITION FUEL AND TRANSPORTATION TAXES, CORPORATE ACTIVITY TAXES AND OTHER TAXES, FEES, AND OTHER SIMILAR CHARGES AND RELATED OBLIGATIONS Upon the Motion (the Motion of the debtor and debtor in possession in the abovecaptioned Chapter 11 case (the Debtor, for entry of an order pursuant to sections 105(a and 507(a(8 of Title 11 of the United States Code (as amended, the Bankruptcy Code, authorizing the Debtor to pay prepetition fuel, value added, transportation, corporate activity taxes, and other similar taxes along with various fees, license and other similar charges and assessments or related obligations; and it appearing that the relief requested is essential to the continued operation of the Debtor s business and is in the best interest of the Debtor s estate and creditors; and adequate notice of the Motion having been given; and it appearing that no other notice need be given; and after due deliberation and sufficient cause appearing therefor, it is hereby ORDERED that the Motion is GRANTED; and it is further ORDERED that, pursuant to sections 105(a and 507(a(8 of the Bankruptcy Code, the Debtor is authorized, but not required, to pay, in its sole discretion, prepetition fuel and transportation taxes, corporate activity taxes, and other similar taxes along with various fees, wsd Doc Filed 10/25/13 Entered 10/25/13 15:22:09 Page 2 of 3

13 license and other similar charges and assessments or related obligations to the respective authorities in the ordinary course of the Debtor s business; provided however, nothing in the Motion or this Order shall preclude the Debtor from contesting, in its sole discretion, the validity and amount of any claim for payment of the fees, taxes and charges; and it is further ORDERED that all depositories on which checks were drawn in payment of prepetition amounts paid to the authorities, be ordered to clear such checks as and when presented for payment; provided, however, that (a funds are available in the Debtor s accounts to cover such checks, and (b all such depositories are authorized to rely on the Debtor s designation of any particular check as approved by this Order; and it is further ORDERED that the Debtor is authorized to reissue any check which was drawn in payment of prepetition amounts approved herein that is not cleared by a depository; and it is further ORDERED that this Order and any payments authorized hereunder are subject to the Debtor s debtor-in-possession financing agreement and any order approving such agreement; and it is further ORDERED that this Court shall retain jurisdiction over any and all matters arising from or related to the interpretation of this Order; and it is further ORDERED that the Debtor is hereby authorized and empowered to take such steps and to perform such acts as may be necessary to implement and effectuate the terms of this Order wsd Doc Filed 10/25/13 Entered 10/25/13 15:22:09 Page 3 of 3

14 EXHIBIT 2 Notice of Motion and Opportunity to Object wsd Doc Filed 10/25/13 Entered 10/25/13 15:22:09 Page 1 of 3

15 THE UNITED STATES BANKRUPTCY COURT FOR THE EASTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION In re: Chapter 11 GROEB FARMS, INC. Case No Debtor. Honorable Walter Shapero HEARING: NOVEMBER 21, 2013 (if objections are filed HEARING TIME: 1:30 p.m. NOTICE AND OPPORTUNITY TO OBJECT REGARDING DEBTOR S MOTION FOR ENTRY OF AN ORDER PURSUANT TO 11 U.S.C. 105(A AND 507(A(8 AUTHORIZING THE DEBTOR TO PAY PREPETITION FUEL AND TRANSPORTATION TAXES AND OTHER TAXES, FEES, AND OTHER SIMILAR CHARGES AND RELATED OBLIGATIONS Groeb Farms, Inc., as debtor and debtor-in-possession (the Debtor, by and through its counsel, Foley & Lardner LLP, has filed with this Court Debtor s Motion for Entry of an Order Pursuant to 11 U.S.C. 105(a and 507(a(8 Authorizing the Debtor to Pay Prepetition Fuel and Transportation Taxes and Other Taxes, Fees and Other Similar Charges and Related Obligations (the Motion. Your rights may be affected. You should read these papers carefully and discuss them with your attorney, if you have one in this bankruptcy case. (If you do not have an attorney, you may wish to consult one. If you do not want the Court to grant the relief sought in the Motion, or if you want the Court to consider your view on the Motion, within 14 days you or your attorney must: File with the Court a written response or objection, 2 explaining your position at: United States Bankruptcy Court 211 W. Fort Street, Suite 210 Detroit, MI If you mail your response to the Court for filing, you must mail it early enough so the Court will receive it on or before the date stated above. 2 Reponses or objection must comply with Fed. R. Civ. P. 8(b, (c and (e wsd Doc Filed 10/25/13 Entered 10/25/13 15:22:09 Page 2 of 3

16 You must also mail a copy to: Judy A. O Neill John A. Simon Tamar N. Dolcourt Foley & Lardner LLP 500 Woodward Ave., Suite 2700 Detroit, MI If a response or objection is timely filed and served, the Hearing will be on November 21, 2013 at 1:30 p.m., as set forth in this Court s October 15, 2013 Order Establishing Hearing Dates. If you or your attorney do not take these steps, the Court may decide that you do not oppose the relief sought in the Motion and may enter an order granting the relief. Dated: October 25, 2013 Respectfully Submitted, FOLEY & LARDNER LLP By: /s/ John A. Simon Judy A. O Neill (P32142 John A. Simon (P61866 Tamar N. Dolcourt (P Woodward Ave., Ste Detroit, MI joneill@foley.com jsimon@foley.com tdolcourt@foley.com Counsel for the Debtor and Debtor in Possession wsd Doc Filed 10/25/13 Entered 10/25/13 15:22:09 Page 3 of 3

17 EXHIBIT 3 Brief Not Applicable wsd Doc Filed 10/25/13 Entered 10/25/13 15:22:09 Page 1 of 1

18 EXHIBIT 4 Certificate of Service wsd Doc Filed 10/25/13 Entered 10/25/13 15:22:09 Page 1 of 2

19 THE UNITED STATES BANKRUPTCY COURT FOR THE EASTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION In re: Chapter 11 GROEB FARMS, INC. Case No Debtor. Honorable Walter Shapero CERTIFICATE OF SERVICE The Debtor has engaged a Noticing Agent, which will serve this Motion and file a subsequent Proof of Service after it has performed the service. Dated: October 25, 2013 Detroit, Michigan FOLEY & LARDNER LLP /s/ _John A. Simon Judy A. O Neill (P32142 John A. Simon (P61866 Tamar N. Dolcourt (P73425 One Detroit Center 500 Woodward Ave., Suite 2700 Detroit, MI ( (Telephone ( (Facsimile Counsel for the Debtor and Debtor in Possession wsd Doc Filed 10/25/13 Entered 10/25/13 15:22:09 Page 2 of 2

20 EXHIBIT 5 Affidavit Not Applicable wsd Doc Filed 10/25/13 Entered 10/25/13 15:22:09 Page 1 of 1

21 EXHIBIT 6 Documentary Exhibits Not Applicable wsd Doc Filed 10/25/13 Entered 10/25/13 15:22:09 Page 1 of 1