Case bjh11 Doc 662 Filed 03/12/19 Entered 03/12/19 15:10:15 Page 1 of 5

Transcription

1 Case bjh11 Doc 662 Filed 03/12/19 Entered 03/12/19 15:10:15 Page 1 of 5 Laurie A. Spindler Linebarger Goggan Blair & Sampson, LLP 2777 N. Stemmons Fwy, Suite 1000 Dallas, Texas (214) Telephone (469) Facsimile Attorneys for Bexar County, City of El Paso, Gainesville ISD, Harris County, Jefferson County, Navarro County, Nueces County, Orange County and Tom Green CAD IN THE UNITED STATES BANKRUPTCY COURT FOR THE NORTHERN DISTRICT OF TEXAS DALLAS DIVISION In re: Chapter 11 SENIOR CARE CENTERS, LLC, et al., Case No (Jointly Administered) Debtors. TAX AUTHORITIES AMENDED LIMITED OBJECTION TO MOTION OF THE DEBTORS FOR ENTRY OF AN ORDER (I) APPROVING FORM OF OPERATIONS TRANSFER AGREEMENT, (II) AUTHORIZING TRANSFER OF THE OPERATIONS AND RELATED ASSETS OF THE TRANSFER PORTFOLIO FREE AND CLEAR OF ALL LIENS, CLAIMS, ENCUMBRANCES, AND INTERESTS, AND (III) GRANTING RELATED RELIEF [DOC. NO. 580] TO THE HONORABLE UNITED STATES BANKRUPTCY JUDGE: Come now Bexar County, City of El Paso, Gainesville ISD, Harris County, Jefferson County, Navarro County, Nueces County, Orange County and Tom Green CAD (collectively, the Tax Authorities ), creditors and parties-in-interest, and file this, their Amended Limited Objection to Motion of Debtors for Entry of an Order (I) Approving Form of Operations Transfer Agreement, (II) Authorizing Transfer of the Operations and Related Assets of the Response to Motion Page 1

2 Case bjh11 Doc 662 Filed 03/12/19 Entered 03/12/19 15:10:15 Page 2 of 5 Transfer Portfolio Free and Clear of all Liens, Claims, Encumbrances, and Interests, and (III) Granting Related Relief (the Motion ) 1 and in support thereof would show the Court as follows: 1. The Tax Authorities are the holders of prepetition claims against the Debtors for year 2018 ad valorem business personal property taxes. This amount does not include post petition interest at the state statutory rate of 1% per month to which the Tax Authorities are entitled pursuant to 11 U.S.C. Sections 506(b) and The Tax Authorities are also the holders of administrative expense claims for year 2019 ad valorem business personal property taxes. 3. The Tax Authorities hold unavoidable, perfected, pre-eminent liens against all of the Debtors owned or claimed business personal property to secure their claims for prepetition and post petition ad valorem business personal property taxes pursuant to Texas Property Tax Code Sections and and 11 U.S.C. Section 362(b)(18). 3 Pursuant to Sections The Tax Authorities amend their limited objection to include the City of El Paso. 2 Texas Property Tax Code Section provides: (a) (b) (d) On January 1 of each year, a tax lien attaches to property to secure the payment of all taxes, penalties, and interest ultimately imposed for the year on the property, whether or not the taxes are imposed in the year the lien attaches. The lien exists in favor of each taxing unit having power to tax the property. A tax lien on inventory, furniture, equipment, or other personal property is a lien in solido and attaches to all inventory, furniture, equipment, and other personal property that the property owner owns on January 1 of the year the lien attaches or that the property owner subsequently acquires. The lien under this section is perfected on attachment and perfection requires no further action by the taxing unit. Texas Property Tax Code Section 32.05(b) provides: Response to Motion Page 2

3 Case bjh11 Doc 662 Filed 03/12/19 Entered 03/12/19 15:10:15 Page 3 of 5 and of the Texas Property Tax Code, the Tax Authorities liens, which attach on January 1 of the relevant tax year, are superior to all other liens or interests, regardless of the date any other liens or interests were perfected. In re Winn s Stores, Inc., 177 B.R. 253 (Bankr. W.D. Tex. 1995); Central Appraisal District of Taylor County v. Dixie-Rose Jewels, Inc., 894 S.W.2d 841 (Tex. App.-Eastland 1995). Furthermore, the Tax Authorities liens are in solido liens that float and attach to all after-acquired property of the Debtors. In re Universal Seismic Associates, Inc., 288 F.3d 205 (5 th Cir. 2002); City of Dallas v. Cornerstone Bank, N.A., 879 S.W.2d 264 (Tex. App.-Dallas 1994). 4. The Tax Authorities do not object to the transfer of the operations and related assets. However, the Tax Authorities object to the transfer of the Debtors assets free and clear of liens without receiving payment in full of all amounts owed for tax years 2018 and Counsel for the Tax Authorities has reviewed the proposed order granting the Motion and notes that, while paragraph 8 of the proposed order provides that in the event any of the Assets 4 are subject to an interest that is senior to Sabra s, the New Operator will receive the assets subject to that interest, (See Ex. D to Motion 8 at 1426), the order further provides in paragraph 14 that neither the New Operators, Sabra nor their affiliates, successors or assigns shall be acquiring, assuming or liable for any claims, taxes, liabilities, debts, obligations or (b) a tax lien provided by this chapter takes priority over the claim of any creditor of a person whose property is encumbered by the lien and over the claim of any holder of a lien on property encumbered by the tax lien, whether or not the debt or lien existed before attachment of the tax lien U.S.C. Section 362(b)(18) allows the perfection of a statutory lien for an ad valorem property tax that comes due after the petition date. 4 All capitalized terms that are not defined herein shall have the same meaning as provided in the Motion and all exhibits that are attached to it. Response to Motion Page 3

4 Case bjh11 Doc 662 Filed 03/12/19 Entered 03/12/19 15:10:15 Page 4 of 5 encumbrances of the Debtors relating to or arising from the Assets prior to the Closing and all person and entities are enjoined from taking any action against them to recover any claim that entity had solely against any of the Debtors including pursuing encumbrances against the assets. (See Ex. D to Motion 14 at 1429.) The Tax Authorities object to what amounts to the avoidance of their liens and the disallowance of their claims without the benefit of an adversary proceeding or a claim objection. 6. The Tax Authorities request that any order approving the Motion provides that the Debtors must pay all amounts owed to them, for the locations that are the subject of the Motion, for tax years 2018 and 2019 with interest that has accrued pursuant to 11 U.S.C. Sections 506(b) and 511 prior to the transfer of the Assets to the New Operators. WHEREFORE, premises considered, the Tax Authorities respectfully request that the Court enter an order that provides the Debtors must pay all amounts owed to the Tax Authorities, for the locations that are the subject of the Motion, for tax years 2018 and 2019 with interest that has accrued pursuant to 11 U.S.C. Sections 506(b) and 511 prior to the transfer of the Assets to the New Operators and for such other and further relief to which they may be justly entitled. Dated: March 12, Response to Motion Page 4

5 Case bjh11 Doc 662 Filed 03/12/19 Entered 03/12/19 15:10:15 Page 5 of 5 Respectfully submitted, Linebarger Goggan Blair & Sampson, LLP 2777 N. Stemmons Fwy, Suite 1000 Dallas, TX Ph. No. (214) Direct (469) Fax No. (469) laurie.huffman@lgbs.com By: /s/laurie A. Spindler Laurie Spindler Huffman SBN ATTORNEYS FOR BEXAR COUNTY, CITY OF EL PASO, GAINESVILLE ISD, HARRIS COUNTY, JEFFERSON COUNTY, NAVARRO COUNTY, NUECES COUNTY, ORANGE COUNTY AND TOM GREEN CAD CERTIFICATE OF SERVICE The undersigned hereby certifies that a true and correct copy of the foregoing was served electronically through the Court s electronic case filing system or via electronic mail upon Trey Monsour, tmonsour@polsinelli.com on this 12 th day of March /s/ Laurie A. Spindler Laurie A. Spindler Response to Motion Page 5