Opinion
Case No. 94-51403-JDW, Contested Matter.
November 20, 2000
Richard M. Katz, Macon, Georgia, for Movant.
Lillian H. Lockary, Assistant United States Attorney, Macon, Georgia, for Respondent.
MEMORANDUM OPINION
This matter comes before the Court on Motion to Displace the Priority Claim of the Internal Revenue Service ("Respondent") and on Motion to Modify Plan after Confirmation filed by Debtor Loren L. Driskell ("Debtor"). This is a core matter within the meaning of 28 U.S.C. § 157(b)(2)(L) and (O). After considering the pleadings, evidence and applicable authorities, the Court enters the following findings of fact and conclusions of law in conformance with Federal Rule of Bankruptcy Procedure 7052.
Findings of Fact
The Court confirmed Debtor's Chapter 13 plan on November 21, 1994. Respondent held a Section 507 priority tax claim for $74,318.56, of which Debtor's plan proposed to pay one hundred percent in accord with 11 U.S.C. § 1322(a)(2). Respondent's tax claim appears to have been assessed against Debtor in the context of Debtor's criminal activity from November 1, 1986 to December 31, 1988. Debtor pleaded guilty to one count of conspiracy to launder currency and two counts of subscribing to a false income tax return on October 16, 1991.
On January 13, 2000, the Chapter 13 Trustee moved to dismiss Debtor's case, alleging that the plan could not be completed within five years of confirmation. On of February 3, 2000, Debtor moved to displace Respondent's priority claim, of which $47,000.00 remains unpaid, and on April 20, 2000, he moved to modify his plan.
Debtor proposes to pay Respondent's priority claim outside the plan. If allowed to do so, he can pay the Chapter 13 Trustee $7,000.00. Such amount that will allow him to complete scheduled payments to his general unsecured creditors and pay anticipated administrative expenses. Respondent, which also holds a general unsecured claim for $23,294.00, objects to both motions.
Conclusions of Law
Debtor argues Respondent will suffer no injury if the Court grants his motions, and that Debtor will enjoy the broader discharge afforded under Chapter 13. Such may be the case, but there appears to be no provision circumventing the requirement, stated in 11 U.S.C. § 1322(a)(2), that
(a) The plan shall —
* * *
(2) provide for full payment, in deferred cash payments, of all claims entitled to priority under section 507 of [the Code], unless the holder of a particular claim agrees to a different treatment of such claim[.]
11 U.S.C. § 1322(a)(2) (emphasis added). As the emphasized language indicates, Section 507 priority claims may be paid other than as prescribed in Section 1322(a)(2) only if the claim holder agrees. See In re Jones, 231 B.R. 110, 112 (Bankr. N.D. Ga. 1999).
Debtor cites no authority pursuant to which the Court might grant his motions over Respondent's objection. In Matter of Ungar, 104 B.R. 517 (Bankr. N.D. Ga. 1989), though the court considered a Section 507 priority tax claim paid outside the plan, it addressed the dischargeability of such claims paid thus.See Matter of Ungar, 104 B.R. at 518-19. The court did not address the question that would have been raised if the Section 507 priority tax claim holder had refused to agree to having its claim paid outside the plan, and though it is not specifically stated, it is probably the case that the claim holder agreed to be paid outside the plan.
Debtor's motions must be denied. He may not displace Respondent's Section 507 priority tax claim, nor may he, without Respondent's agreement, modify his plan to provide for payment of such claim outside the plan.
An order in accordance with this opinion will be entered on this date.
ORDER
In accordance with the memorandum opinion entered on this date, it is hereby
ORDERED that Debtor Loren L. Driskell's Motion to Displace the Priority Claim of the Internal Revenue Service, is DENIED; and it is hereby further
ORDERED that Debtor Loren L. Driskell's Motion to Modify his Plan after Confirmation is DENIED.
SO ORDERED.