Opinion
Case No. 03-18150-WCH, Adversary Proceeding No. 08-1204.
July 19, 2010.
Joseph G. Foley, Cambridge, MA, for Debtor.
MEMORANDUM OF DECISION
I. INTRODUCTION
The matters before the Court are the Defendant's, Massachusetts Department of Revenue (the "MDOR"), Motion for Summary Judgment ("MDOR's Motion for Summary Judgment"), the Plaintiff's, Barbara Drake ("Drake"), opposition thereto, Drake's Motion for Summary Judgment ("Drake's Motion for Summary Judgment"), and the MDOR's opposition. Generally, the parties seek to determine whether the MDOR maintains a valid tax lien against Drake that attached to Drake's right to her retirement pension prior to her filing her bankruptcy petition, and whether the MDOR violated the discharge injunction. For the reasons set forth below, I will enter judgment granting in part and denying in part both of the motions for summary judgment.
II. BACKGROUND
Drake was born on May 30, 1939. For more than thirty years she has been employed as a public elementary school teacher in Massachusetts and has been a member of the Massachusetts teachers' contributory retirement system. At all times relevant hereto, Drake has been married to and resided with Gregory Drake ("Gregory," collectively, with Drake, the "Drakes").
MDOR's Motion for Summary Judgment, Exhibit A — Statement of Material Facts Not in Dispute ("SMF") ¶ 1, Docket No. 62, Adversary Proceeding No. 08-01204 (the "Adversary Proceeding"). All references to docket numbers hereinafter refer to the Adversary Proceeding, unless otherwise stated.
Id. at ¶ 2.
Id. at ¶ 4.
The Drakes filed late joint income tax returns for the years 1993 through 1996 (the "1993-1996 Taxes"). The assessment date (the date the late return was filed) and assessment amount are summarized in the matrix below:
Id. at ¶¶ 5-6 8-9.
Id. at ¶ 11.
On August 19, 1997, before the Drakes filed the late tax returns for 1995-1996, they filed a joint Chapter 13 bankruptcy petition in the United States Bankruptcy Court for the District of Massachusetts (the "Joint Case"). Almost two years later, on July 20, 1999, the Joint Case was dismissed without a Chapter 13 plan having been confirmed.
Id. at ¶ 7.
Id. at ¶ 10.
On May 9, 2000, the MDOR filed a Notice of Massachusetts Tax Lien for the delinquent 1993-1996 Taxes (the "Notice") in the Barnstable County Registry of Deeds and in the Office of the Secretary of State. Approximately one month after the Notice was filed, on June 3, 2000, the Drakes entered into a payment agreement with the MDOR for the 1993-1996 Taxes that required that they make monthly payments in the amount of $600 to the MDOR and that they continue to file their tax returns (the "Payment Agreement").
Id. at ¶ 11.
Id. at ¶ 12.
Later that same year, Gregory entered into a payment agreement with the MDOR for certain trust fund taxes incurred by one of his businesses for which he had been held personally liable (the "Business Payment Agreement"). The Business Payment Agreement required that Gregory make monthly payments of $150 to the MDOR and continue to file appropriate tax returns.
Id. at ¶ 13.
Id.
On September 30, 2003 (the "Petition Date"), Drake, this time on her own, filed a voluntary Chapter 13 petition (the "Bankruptcy Case"). On her Schedule B-Personal Property, Drake listed her right to a pension from the Massachusetts Teachers' Contributory Retirement system (the "Pension"), which had vested by the Petition Date though she had not retired yet. The next month, the MDOR filed a secured proof of claim for unpaid taxes as follows:
Id. at ¶ 14.
Id. at ¶ 17.
SMF at ¶ 18. Drake disputes that the MDOR's claim is "secured" but does not dispute the amount of the claim.
Period Assessment Date Tax Interest Penalty
1993 3/27/1995 $0.00 $46.26 $22.72 1994 2/2/1996 $0.00 $507.85 $118.92 1995 9/25/1997 $25,241.00 $50,767.19 $19,307.35 1996 9/26/1997 $0.00 $218.80 $75.45 On September 2, 2004, upon Drake's motion, the Bankruptcy Case was converted to one under Chapter 7. That December, Drake was granted a discharge (the "Discharge") under section 707 of the Bankruptcy Code (the "Code").On January 3, 2006, Drake's attorney sent a letter to an attorney at the MDOR allegedly confirming a conversation that they had in which the MDOR's attorney stated that "the liens which had been filed against Mrs. Drake have expired as a matter of law and that the [MDOR] can no longer collect from Mrs. Drake for [the 1993-1996 Taxes]" (the "Lien Expiration Letter). There is no response to this letter in the record nor is there any other evidence substantiating the claim made therein.
Affidavit of Timothy Burke, Exhibit 3, Docket Number 68.
By 2008, the only outstanding liability was for the 1995 and 1996 taxes (the "1995-1996 Taxes"). Gregory continued to make payments on the Payment Agreement through February of 2008. Two months later, after Gregory had stopped making payments on the Payment Agreement, the MDOR sent Gregory a "Notice of Intent to Terminate Payment Agreement" for failure to comply with the terms of the Payment Agreement. In April of 2008, Gregory's counsel, Timothy Burke ("Burke") applied for hardship relief (the "Hardship Application") for the remaining balances of the 1995-1996 Taxes and his business trust fund taxes in light of a medical condition that purportedly left Gregory unable to continue to make payments pursuant to the Payment Agreement. In response to the Hardship Application, the MDOR reviewed Gregory's application to determine what additional documents were needed to make a decision.
Memorandum of Law in Support of the Defendants' Motion for Summary Judgment, Docket Number 71
SMF at ¶ 21.
Docket Number 63, Affidavit of Anne M. Breton (the "Breton Affidavit"), Exhibit B.
SMF at ¶ 22.
Breton Affidavit at ¶¶ 19-20.
On May 14, 2008, a tax representative from the MDOR, Anne Breton ("Breton"), and Burke discussed Gregory's Hardship Application. During the course of the conversation, they discussed the continued validity of the Tax Liens. Burke insisted that the Tax Liens expired during Drake's bankruptcy and that she no longer had any liability for outstanding taxes. That same day, Breton called Burke and told him that the MDOR's position was that the Tax Liens had not expired, and that because some of the liabilities might be collectable from her, the MDOR needed certain information. Burke reiterated that Drake received a discharge in bankruptcy, and in response, Breton instructed him to forward Drake's bankruptcy information to her along with Gregory's financials and hardship information. Later that same day, Burke sent a copy of the Discharge to the MDOR but did not send any information related to the Hardship Application.
Id. at ¶ 22.
Id.
Id.
Id. at ¶ 23.
Id. at ¶ 24.
On June 25, 2008, the MDOR, in a notice addressed solely to "Gregory Drake," denied the Hardship Application for lack of substantiation due to his failure to file missing income tax returns and other financial documents. The notice denying the Hardship Application contained the pre-printed statement "collection activity on your account will continue."
SMF at ¶ 23. See also Exhibit B to the Breton Affidavit.
Barbara Drake's Statement of Material Facts Not in Dispute ("DSMF"), Docket Number 69, Exhibit 6.
After receiving the notice denying the Hardship Application, on July 3, 2008, Burke sent a letter to the MDOR advising Breton that any collection actions taken against Drake would be in violation of the Code. That same month, Breton had a telephone conversation with Burke, during which she indicated that the MDOR believed that the outstanding taxes remained collectable and that if he wanted to pursue Gregory's Hardship Application further, she would need "joint financials, joint bank accounts[,] . . . Gregory's missing returns, and proof of significant hardship."
Id. at ¶ 26.
Breton Affidavit ¶ 28. In her affidavit, Breton stated that "I told him I was being told that it was not discharged," but it is unclear precisely to what "it" was meant to refer.
On August 6, 2008, shortly after the MDOR denied Gregory's Hardship Application, Drake instituted the current adversary proceeding (the "Adversary Proceeding"). On September 18, 2008, Burke followed up with the MDOR regarding the denial of the Hardship Application. During the next few months the MDOR informed him that to complete the Hardship Application Gregory had to file: a statement of Drake's financial condition, copies of Drake's pay stubs, a copy of Drake's annuity savings account statement and a copy of Drake's bank account statement (the "Requests"). Burke provided the MDOR with the requested documents soon thereafter. Over the course of several months, the MDOR followed-up the Requests with further questions and requests to clarify any deficiencies in the documents that Gregory had provided.
Docket Number 1.
Id. at ¶ 32.
Id. at ¶¶ 32-41.
DSMF at ¶ 31.
Breton Affidavit at ¶¶ 32-41.
On October 8, 2009, the MDOR re-filed the Notice in the appropriate offices so that it could extend its duration (the "Re-Filing"). The tax years, the date of the assessment, and the initial date of filing the Tax Liens were filed as follows:
SMF at ¶ 34.
DSMF at ¶ 38. Note that by this time the parties had agreed that the Drakes were no longer liable for the 1993 and 1994 taxes.
Subsequently, on December 15, 2009, the MDOR filed a motion for summary judgment in the Adversary Proceeding in which they agreed that the Drakes' in personam liability on the 1995-1996 Taxes was "discharged," but that they still "hold[] a lien which was not discharged." Later, Drake amended the complaint (the "Complaint") such that, she sought a finding that the MDOR was attempting to collect on the Tax Liens in violation of the discharge injunction. The MDOR timely filed an answer (the "Answer"). The Answer included counterclaims seeking findings that the MDOR timely re-filed the Notice for the 1995-1996 Taxes and that the Tax Liens are still effective.
Docket Number 25.
Id., Exhibit 7 at 3.
Docket Number 39.
See Docket Number 61.
Subsequently, the MDOR filed a motion for summary judgment asserting that it did not violate Drake's discharge injunction (the "Discharge Injunction"), that the Tax Liens were timely extended and remain in full force and that Drake's property acquired both before and after both the filing of the Notice and the filing of her bankruptcy petition are subject to the Tax Liens. Drake filed her opposition thereto and her own cross-motion for summary judgment. The MDOR similarly opposed Drake's motion for summary judgment.
Docket Numbers 62 and 71.
Docket Numbers 67, 70, and 86.
Docket Number 83.
On April 16, 2010 I held a hearing on the motions for summary judgment. At its conclusion, I took both matters under advisement.
III. POSITION OF THE PARTIES
The MDOR
In seeking summary judgment and opposing Drake's Motion for Summary Judgment, the MDOR argues that the Tax Liens are valid and were not discharged in Drake's bankruptcy. Furthermore, it argues that the Notice was properly filed prior to the Petition Date, that the statute of limitations to re-file the Notice was stayed during the pendency of the Bankruptcy Case, and that it was automatically extended by amendments to Massachusetts law. Next, the MDOR argues that the Tax Liens attached to property that Drake had at the time that it filed the Notice as well as after-acquired property, including the Pension. Finally, the MDOR argues that because the Tax Liens remained valid post-discharge, it could not have violated the discharge injunction. Alternatively, even if it was no longer permitted to collect on account of the Tax Liens, the MDOR asserts its actions did not rise to the level of a violation of the discharge injunction.
Drake
In her motion for summary judgment and opposition to the MDOR's Motion for Summary Judgment, Drake asserts that the tax debt was discharged in bankruptcy. Furthermore, she argues that the Tax Liens expired before the Re-Filing because the MDOR failed to re-file the Notice within the proscribed time-period outlined in the statute, which she asserts was not tolled by the Bankruptcy Case. Additionally, Drake contends that and that the amendments that increased the statute of limitations for refiling do not apply to the Tax Liens. Moreover, Drake asserts that even if the Tax Liens are valid, the Pension is exempt from attachment. Finally, Drake argues that the MDOR's attempt to collect on the Tax Liens, in conjunction with the Re-Filing, violated the discharge injunction.
IV. DISCUSSION
A. The Summary Judgment Standard
Summary judgment should be granted "if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." The burden of proof is on the moving party in the first instance. To defeat the motion, the opposing party must produce substantial evidence of a genuine dispute as to a material fact. A material fact is one that has the "potential to affect the outcome of the suit under applicable law."
Fed.R.Civ.P. 56(c), made applicable to adversary proceedings by Fed.R.Bankr.P. 7056.
Steel Hector Davis v. Wang Labs., Inc. (In re Wang Labs., Inc.), 155 B.R. 289, 290 (Bankr. D. Mass. 1993).
Desmond v. Varrasso (In re Varrasso), 37 F.3d 760, 763 n. 1 (1st Cir. 1994).
Nereida-Gonzalez v. Tirado-Delgado, 990 F.2d 701, 703 (1st Cir. 1993).
In responding to a motion for summary judgment, the opposing party "may not rely merely on allegations or denials in its own pleading; rather, its response must-by affidavits or as otherwise provided in this rule-set out specific facts showing a genuine issue for trial." Further, "if the opposing party does not so respond, summary judgment should, if appropriate, be entered against that party." The United States Court of Appeals for the First Circuit has explained this provision to mean that the absence of a material factual dispute is a "condition necessary," but not a "condition sufficient" to summary judgment. The moving party, therefore, must show that it is entitled to judgment as a matter of law.
Id. (emphasis added).
In re Varrasso, 37 F.3d at 764.
Id.
B. The Tax Liens
In Massachusetts, if a person fails to pay income tax, a lien arises at the time of the assessment of the tax in favor of the Commonwealth "upon all property and rights to property, whether real or personal, belonging to such person" for payment of the tax, inclusive of interest and statutory additions, including penalties. Once a notice of the tax lien is filed in the appropriate county registry of deeds and with the office of the Secretary of State, the lien has priority against any mortgagee, pledge, purchaser or judgment creditor who follows.
The Drakes failed to file timely their joint income tax returns for their 1993-1996 income taxes. Upon the filing of their returns, the MDOR assessed the Drakes as follows:
Period Assessment Date Assessment Amount 1993 3/27/1995 $2.200.00 1994 2/26/1998 $550.00 1995 9/25/1997 $47,082.00 1996 9/26/1997 $2,598.00On these dates, the Tax Liens arose due to the Drakes' failure to pay timely the 1993-1996 Taxes, secured by all property and rights to property, whether real or personal, belonging to the Drakes.
C. Effects of Drake's Discharge on the Tax Liens
As I have previously noted, a secured claim is comprised of "two components: the debtor's in personam liability on the obligation secured by the lien and the creditor's in rem rights to proceed against the collateral." This distinction is relevant in bankruptcy cases because a Chapter 7 "discharge extinguishes only 'the personal liability' of the debtor" and a secured creditor's in rem right to pursue the collateral attached to the claim "survives or passes through bankruptcy." "Indeed, the Supreme Court of the United States has expressly stated that '[o]rdinarily, liens and other secured interests survive bankruptcy.'" Accordingly, even if Drake's in personam liability for the 1995-1996 Taxes was discharged, the MDOR's ability to enforce the Tax Liens in rem was unaffected by Drake's discharge.
Anderson v. Richards (In re Anderson), No. 07-1328, 2009 WL 4840871, *7 (Bankr. D. Mass. December 10, 2009) (citing Johnson v. Home State Bank, 501 U.S. 78, 81 (1991)).
Id. (citing Johnson v. Home State Bank, 501 U.S. at 82-83 (1991) (quoting 11 U.S.C. § 524(a)(1)) (emphasis in original)).
Id. (citing Farrey v. Sanderfoot, 500 U.S. 291, 297 (1991)).
D. Continuation of the Tax Liens
i. Tolling of the Statute of Limitations
Prior to January 1, 2005, a Massachusetts tax lien had a lifespan limited to six years from the date of the assessment of the tax. If the lien holder failed to satisfy the lien within that six year period, the lien would lapse and become unenforceable unless the notice of lien was appropriately re-filed. The law then, as it remains, provided that the running of the period of limitations on collections is suspended for the period during which, and for six months after, the MDOR is prohibited from collecting from the debtor by reason of the debtor (1) being a debtor in a bankruptcy proceeding; and (2) complying with a plan for payment of the tax promulgated in the bankruptcy proceeding. Similarly, the Code provides for the tolling of statutes of limitations for claims against a debtor the pendency of the bankruptcy case.
See Mass. Gen. Laws ch. 62C, § 65 Historical Notes.
See Mass. Gen. Laws ch. 62C, § 50 Historical Notes.
Mass. Gen. Laws ch. 62C, § 65.
See 11 U.S.C. § 108(c).
In 2004, with an effective date of January 1, 2005, Mass. Gen. Laws ch. 62C, § 50(a) was amended such that the duration of tax liens were extended to a period of ten years from the date of assessment and for subsequent ten year period(s) if a notice is re field. In enacting these statutory changes, the legislature also adopted a transition rule (the "Transition Rule") which provided that:
The amendments to chapter 62C, section 50(a), and section 65 are effective as of January 1, 2005, and will be applicable to any tax liability . . . which remains due and unpaid as of January 1, 2005, or which is assessed on or after January 1, 2005. Any notice of tax lien in favor of the Commonwealth recorded on a date making it less than 6 years old as of January 1, 2005 shall, if not sooner discharged as a result of payment of the tax, continue in full force and effect for a period of ten years from the date of assessment of the tax without the need for any notice or re-filing by the commissioner. Thereafter, any further extension of the lien and any lien re-filing requirements shall be governed by section 50 of chapter 62C as amended by this act.
St. 2004, c. 262, § 70 (emphasis added).
Drake mistakenly contends that no taxes were due and unpaid on January 1, 2005 and that the Transition Rule does not apply to her. Though Drake's in personam liability on the 1995-1996 Taxes was discharged in bankruptcy, the debt remained outstanding and the MDOR's in rem right to proceed against collateral attached by the Tax Liens survived discharge. Furthermore, I note that Gregory's personal liability for the 1995-1996 Taxes was never discharged. Hence, a tax liability remained due and unpaid as of January 1, 2005 and the Transition Rule applies.
Section 502(i) of the Code allows certain post-petition claims, such as the 1995-1996 Taxes, to be treated as if they had arise pre-petition. In the Joint Case the MDOR elected to treat the 1995-1996 taxes under § 502(i). Drake argues that this prevents the MDOR from asserting that it was prohibited from collecting on account of that debt within the meaning of the tolling provision of Mass. Gen. Laws ch. 62C, § 65. Even if that were true, the statute of limitations remained tolled pursuant to the Code during the pendency of the Joint Case.
See 11 U.S.C. § 108(c).
The Drakes filed the Joint Case on August 19, 1997. They filed their 1995-1996 returns on September 26, 1997 and September 27, 1997, respectively. At this juncture, only the 1995-1996 Taxes are relevant because the parties stipulated that the others have been paid. The assessment dates for those years were September 25, 1997 and September 26, 1997 respectively. Without any tolling of the six year limitation period (the "Limitation Period"), the Tax Liens would have expired on September 25, 2003 and September 26, 2003 respectively. Although the 1995-1996 Taxes were pre-petition tax periods, the automatic stay prevented the MDOR from attempting to collect on account of those taxes during the pendency of the Joint Case. The automatic stay in the Joint Case ceased upon the dismissal of that case on July 20, 1999. Assuming, arguendo, that only 11 U.S.C. § 108(c) applied to toll the Limitation Period and not the Massachusetts statute, the clock on the statutory tax lien, which at the time was six years, was tolled for the period between the filing of the tax returns and dismissal of the Joint Case, namely, to July 20, 1999. Had no further events occurred to toll the Limitation Period, it would have expired on July 20, 2005, six years from July 20, 1999.
See 11 U.S.C. 108(c).
Nonetheless, the Limitation Period was further tolled, as to Drake, during the pendency of the Bankruptcy Case from September, 2003 to December 15, 2004, a period of a year and three months. While the Bankruptcy Case tolled the Limitation Period, the Transition Rule automatically added four years to the validity of the Tax Liens because under no circumstances would they have expired prior to January 1, 2005. Accordingly, the limitation period for the 1995-1996 Taxes was extended to at least January of 2009, without respect to tolling caused by the Bankruptcy Case. With the tolling caused by the bankruptcy Case factored in, the Tax Liens would not have expired until October, 2010. Therefore, when the MDOR re-filed the notices of the Tax Liens on October 8, 2009, it did so before the expiration of the Notice resulting in the continued validity of the Tax Liens for another ten years.
ii. MDOR's Statements that the Tax Liens had Expired and was Discharged
Drake asserts that the statement Burke made to the MDOR in the Lien Expiration Letter that the Tax Liens "expired as a matter of law and that the [MDOR] can no longer collect from Mrs. Drake for those taxes at issue in her bankruptcy" proves that the Tax Liens had expired. Nonetheless, evidentiary hurdles and the special treatment that governmental entities receive in preventing the use of estoppel against them prohibit reliance on the Lien Expiration Letter as dispositive evidence that the Tax Liens ineffective.
See Lien Expiration Letter.
A non-response to a letter is generally insufficient to show that the recipient adopted its contents. The proponent of the admission has the burden of proving that the party's conduct manifested an intent to adopt the statement. The record does not reflect that the MDOR adopted the statements of the Lien Expiration Letter.
1-15 Weinstein's Evidence Manual § 15.02[3].
Id at [2].
Additionally, it is a well-settled principle that "equitable esto ppel will not lie against the Government as against private litigants." "When the Government is unable to enforce the law because the conduct of its agents has given rise to an estoppel, the interest of the citizenry as a whole in obedience to the rule of law is undermined." Massachusetts cases are consistent with this federal principle.
Office of Personnel Management v. Richmond, 496 U.S. 414, 419 (1990).
Heckler v.Community Health Services of Crawford County, Inc., 467 U.S. 51, 60 (1984).
Morton Street LLC v. Sheriff of Suffolk County, 453 Mass. 485, 491-492 (2009) ("We have been reluctant to apply principles of estoppel to public entities where to do so would negate requirements of law intended to protect the public interest.") (citation omitted).
Thus, because Drake has not shown that the MDOR adopted the statements in the Lien Expiration Letter and the doctrine of estoppel will not bind the MDOR to the statements contained therein, the Lien Expiration Letter does not prove that the Tax Liens expired as a matter of law.
E. Property Subject to Attachment by the Tax Liens
i. After-Acquired Property
As discussed, Drake's in personam liability for the 1995-1996 Taxes was extinguished by her discharge, but the MDOR's in rem right to proceed against the collateral attached by the Tax Liens survived the discharge. Both Federal and Massachusetts tax liens attach to property and rights to property that a debtor owned at the time the tax lien was filed and that she obtained after the tax lien was filed. However, as of yet, neither the Supreme Court of the United States nor the United States Court of Appeals for the First Circuit have determined whether a tax lien survives to attach to a debtor's property that she acquires post-petition. Nonetheless, courts in other jurisdictions have determined that post-petition property acquired by a Chapter 7 debtor is not subject to a pre-petition tax lien.
Luchini v. Commissioner of Revenue, 436 Mass. 403, 406 (2002). See also Glass City Bank of Jeanette, Pa. v. United States, 236 U.S. 265 (1945); Plymouth Sav. Bank v. United States Internal Revenue Serv., 187 F.3d 203, 206 (1st Cir. 1999); Markham v. Fay, 74 F.3d 1347, 1363-1364 (1st Cir. 1996) ("federal tax lien attaches to property and rights to property that the taxpayer acquires at any time after assessment).
Dishong v. Dep't of Treasury (In re Dishong), 188 B.R. 51, 55 (M.D. Fla. 1995) (citing United States v. Sanabria (In re Sanabria), 424 F.2d 1121, 1122 (7th Cir. 1970) (affirming district court ruling limiting federal tax lien to assets attached at date of petition); In re Braund, 423 F.2d 718, 718-719 (9th Cir. 1970) (per curiam), cert. denied United States v. McGugin, 400 U.S. 823 (1970) (holding the proper interpretation is not to extend prepetition tax liens to assets acquired postbankruptcy); Wessel v. United States (In re Wessel), 161 B.R. 155, 159 (Bankr. D.S.C. 1993) (holding tax liens attached to prepetition right to annuity payments, but "as the taxes were discharged in this action, it is true that these liens will not attach to property, or rights to property, the plaintiff acquires post-petition"); Olson v. United States (In re Olson), 154 B.R. 276, 282 (Bankr. D.N.D. 1993) (differentiating liens on nondischargeable taxes from liens on dischargeable taxes because the latter "survive bankruptcy only as to the debtor's prepetition property"); Leavell v. United States, et al (In re Leavell), 124 B.R. 535, 540 (Bankr. S.D. Ill. 1991) ("Tax liens securing dischargeable debts, however, do not attach to the debtor's post-petition after-acquired property."); Frengel v. Internal Revenue Service (In re Frengel), 115 B.R. 569, 572 (Bankr. N.D. Ohio 1989) ("Post-petition appreciations in the value of property, as well as after acquired property, inure to the benefit of a debtor under the fresh start principle.").
In In re Sanabria, the United States Court of Appeals for the Seventh Circuit reasoned that allowing a pre-bankruptcy petition tax lien to attach to property acquired post-petition would frustrate the purpose of the bankruptcy code and that it logically cannot be supposed that the Bankruptcy Code "intended to keep [pre-petition] debts alive for the purpose of permitting the creation of an enforceable lien upon a subject not existent when the bankruptcy became effective or even arising from, or connected with, pre-existing property but brought into being solely as the fruit of the subsequent labor of the bankrupt." This reasoning is uncontroverted. Although this case discusses attachment of prepetition federal tax liens, there is no reason why an analogous principle should not apply to prepetition state tax liens. Accordingly, I am persuaded that the rule setout in In re Sanabria and adhered to by other courts around the country is the most sensible, namely, that a tax lien based on dischargeable taxes can attach to property that the debtor owned, or had rights to, at the time of the filing of the bankruptcy petition but does not survive to attach the debtor's property that is acquired after filing the bankruptcy petition. Accordingly, I find that the Tax Liens could only attach to property that Drake possessed or had rights to on the Petition Date.
In re Sanabria, 424 F.2d at 1123.
Id. (citing Local Loan Co. v. Hunt, 292 U.S. 234 (1934)).
In re Dishong, 188 B.R. at 55.
ii. Pension Benefits
Unless property is specifically exempt, a tax lien attaches to "all property and rights to property, whether real or personal, belonging to such person" for payment of the tax, inclusive of interest and statutory additions, including penalties. Certain types of property and are exempt from a levy. Only property explicitly exempted in Mass. Gen. Laws ch. 62C, § 55A is exempt from levy. Courts in Massachusetts have consistently held that exemptions are "a matter of special favor or grace. . . . to be strictly construed" and to be "recognized only where the property falls clearly and unmistakably within the express words of a legislative command." Rights to the Pension do not fall under any of the nine exemptions provided in Mass. Gen. Laws ch. 62C, § 55A and are therefore subject to attachment by the Tax Liens.
Macy's East, Inc. v. Commissioner of Revenue, 441 Mass. 797, 804 (2004) (quoting South Boston Sav. Bank v. Commissioner of Revenue, 418 Mass. 695, 698 (1994) (internal citation omitted)) . . .
State Tax Comm'n v. Blinder, 336 Mass. 698, 703 (1958).
Drake also argues that Mass. Gen. Laws ch. 32, § 19 exempts the Pension from attachment by a tax lien. That statute provides that a right to a pension, such as the Pension, "and all rights in the funds of [the Pension] shall be exempt from taxation, including income taxes levied under the provisions of chapter sixty-two, and from the operation of any law relating to bankruptcy or insolvency and shall not be attached or taken upon execution or other process." The MDOR notes that Mass. Gen. Laws ch. 62C, § 5A was enacted over forty years after Mass. Gen. Laws ch 32 § 19, and fails to include the Pension or income from the Pension as property exempt from attachment. Furthermore, Mass. Gen. Laws ch. 62C, § 55A was drafted with the explicit intent that it trump any other state exemption statutes as is clear by the words of the statute which state that "notwithstanding any other law, no property or rights to property shall be exempt from levy other than the property specifically made exempt by subsection (a)." The principle of leges posteriors, priores contrarias abrogant holds that later-enacted laws are given precedent over conflicting pre-existing laws. Accordingly, since Mass. Gen. Laws ch. 62C, § 55A(c) conflicts with and was enacted after ch. 32, § 19 and because the former statute explicitly trumps the latter, Mass. Gen. Laws ch. 32, § 19 does not exempt the Pension from attachment by the Tax Liens.
Mass. Gen. Laws ch. 32, § 19 (emphasis added).
Mass. Gen. Laws. ch 62C, § 55A. See also Mass. Gen. Laws ch 32, § 19.
See Watt v. Alaska, 451 U.S. 259, 285 (1981).
While Drake had not begun to collect on her right to the Pension at the time that the MDOR filed the notice of the Tax Liens, a teacher becomes eligible to collect her retirement benefits when she meets either one of two sets of criteria: (1) age 55 or older and with ten years of qualified service; or (2) with twenty years of qualified service regardless of age. On the Petition Date, Drake was over the age of 55 and had over ten years of qualified service in the system, so she had a vested right to the Pension. Therefore, though Drake may not have collected benefits from the Pension as of the Petition Date, she still had a right to that property.
Mass. Gen. Laws ch. 32, §§ 5, 10. See also, the Massachusetts Teachers' Retirement Board's publication Your MTRS Benefits: A Guide for Active Members, (April 2006) at p. 16.
The MDOR argues that the Tax Liens attach to the value of the Pension as of the Petition Date and any additional post-petition value of the Pension. The cases it cites from districts and circuits from around the country are all in agreement. Unfortunately for the MDOR, they all agree that a pre-petition tax lien is limited to the value of a debtor's present equitable interest in future income from an instrument, such as the Pension or a trust, and does not attach to post-petition property.
See Internal Revenue Service v. Orr (In re Orr), 239 B.R. 130 (S.D. Tex. 1998); Wessel v. United States (In re Wessel), 161 B.R. 155 (Bankr. D. S.C. 1993); and United States v. Rogers, 558 F. Supp. 2d 774 (N.D. Ohio 2008).
Because the Pension benefits are not explicitly exempted from attachment and Drake had rights to the Pension benefits as of the Petition Date, the Tax Liens attached to the Pension. Nonetheless, because property acquired after the Petition Date is not subject to attachment by the pre-petition Tax Liens, the Tax Liens attach to the Pension only to the extent of its value on the Petition Date.
F. The Discharge Injunction
Section 524(a)(2) of the Bankruptcy Code "operates as an injunction against . . . an act[] to collect, recover or offset any such debt as a personal liability of the debtor." The analysis for determining whether a creditor has violated the discharge injunction must begin by first identifying the act that is alleged to have occurred. "In assessing violations of. . . . the discharge injunction, the core issue is whether the creditor acted in such a way as to 'coerce' or 'harass' the debtor improperly." In determining whether a violation of the discharge injunction has occurred "the line between forceful negotiation and improper coercion is not always easy to delineate, and each case must therefore be assessed in the context of its particular facts."
Pratt v. General Motors Acceptance Corporation (In re Pratt), 462 F.3d 14, 19 (1st Cir. 2006).
Id.
In the current proceeding, Drake's in personam liability for the taxes were discharged but the MDOR's in rem right to proceed against the collateral attached by the Tax Liens survived. Because Gregory did not receive a bankruptcy discharge, he retained his in personam liability for the debt and the MDOR also had an in rem right to proceed against property attached by the Tax Liens.
The particular record facts material to my assessment of objective coercion are: (i) Breton's statement that it was the MDOR's position that Drake's liability on the Tax Liens had not expired; (ii) Breton asking Burke for information and documents from Drake regarding her liability on the Tax Liens; (iii) the letter addressed solely to Gregory Drake denying the Hardship Application and indicating that "collection activity on your account will continue"; (iv) Breton informing Burke that in order to consider Gregory's Hardship Application he needed to file a more complete set of documents which included some documents pertaining to Drake's financials jointly with Gregory and solely, including: (a) financial statements, (b) bank account statements, (c) a statement of Drake's financial condition, (d) copies of Drake's pay stubs, and (e) a copy of Drake's annuity savings account statement; (v) the Re-Filing on October 8, 2009; and (vi) Breton's deposition testimony that after the Drakes breached the Payment Agreement, the MDOR tried to collect from Drake like she was "any other taxpayer."
I find that the material facts fail to show that the MDOR improperly coerced Drake to pay it. The MDOR's only activities that could be considered "active" were document requests made to Drake's attorney that were necessary for it to consider Gregory's Hardship Application. Accordingly, I find that the MDOR did not violate the discharge injunction.
V. CONCLUSION
In light of the foregoing, I will enter an order granting in part and denying in part both motions for summary judgment consistent with my above findings.