See Commodity Futures Trading Comm'n v. Weintraub, 471 U.S. 343, 352-53 (1985); Wolf v. Weinstein, 372 U.S. 633, 651 (1963) ("[W]illingness to leave the debtor in possession is premised upon an assurance that the officers and managing employees can be depended upon to carry out the fiduciary responsibilities of a trustee."); Coastal Virginia Bank v. March, 995 F.2d 32, 34 (4th Cir. 1993) ("debtor-in-possession . . . is acting as a trustee for all his creditors"); Zilkha Energy Co. v. Leighton, 920 F.2d 1520, 1523 (10th Cir. 1990) (debtor in possession is "clothed with all powers of a trustee"); see also 4 Norton Bankr. L. Prac. 2d Section(s) 77A:5 (1997) ("When the debtor corporation remains in possession . . . its fiduciary obligations run to `the estate.'"). The trustee argues, however, that even if it is a "fiduciary," the Section(s) 1312.20(b)(iii) provision that adoption notices are required when "[a] fiduciary (receiver, trustee, etc.)
[4] We agree that Bellus is not liable for post-petition employment taxes. Section 1107 of the Bankruptcy Code provides that a debtor in possession shall generally have the rights and powers, and shall perform the functions and duties, of a trustee serving in a case under Chapter 11. See also In re March, 995 F.2d 32, 34 (9th Cir. 1993) (debtor in possession operates the estate in a fiduciary capacity). In United States v. Friendship College, Inc., 737 F.2d 430, 431-32 (4th Cir. 1984), the Fourth Circuit concluded that FICA taxes withheld by a bankrupt employer from its employees' wages, but never paid to the IRS, and the penalties and interests associated with them, were payable as an administrative expense and therefore were to be paid from the bankruptcy estate before all other unsecured claims.
Prior to the appointment of a trustee, the Debtors were fiduciaries of their own estate owing a duty of care and loyalty to the estate's creditors. In re March, 995 F.2d 32, 34 (4th Cir. 1993). In such cases, § 364 applies to them.
However, this does not mean that the debtor-in-possession has no duty to conserve and protect the assets, including accounts receivable, of the estate. See In re March, 995 F.2d 32 (4th Cir. 1993) (holding that a Chapter 11 debtor-in-possession acts as trustee for all of his creditors); Bennett v. Williams, 892 F.2d 822, 823 (9th Cir. 1989) (trustee must preserve assets of the estate). Given the duties of a Chapter 11 trustee or debtor-in-possession, a failure to bring an action to avoid a preferential or fraudulent transfer can be an abuse of discretion.
It would not automatically create a forfeiture of the security. The trustee's reliance on In re March, 995 F.2d 32 (4th Cir. 1993) is misplaced. In that case, a violation of Virginia law rendered a loan transaction void ab initio.