TAXING BANKRUPTCY LIQUIDATION SALES. By Bruce A. Emard 1

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1 TAXING BANKRUPTCY LIQUIDATION SALES I. Introduction By Bruce A. Emard 1 California taxes liquidation sales of tangible personal property (TPP) under its Sales and Use Tax Law (the Sales and Use Tax Law ), 2 unless an exemption or exclusion from tax applies. California fought to tax bankruptcy liquidation sales of TPP for years, but the federal courts within the Ninth Circuit prohibited it from doing so. Then, in 1989 California claimed its ultimate victory before the United States Supreme Court in California State Board of Equalization v. Sierra Summit, Inc.. 3 The Supreme Court ruled that California can tax bankruptcy liquidation sales of TPP like it taxes liquidation sales outside bankruptcy. With this epic victory in hand, California proceeded to do... relatively nothing! With few exceptions, it did not require bankruptcy trustees to report and pay sales tax on liquidation sales of TPP. It did not audit bankruptcy trustees or the estates they administer for unpaid sales tax. And it did not issue audit determinations to bankruptcy trustees for unpaid sales tax and file requests for payment of administrative expenses. California s inactivity can be traced to the policies adopted after Sierra Summit by the State Board of Equalization (the Board ), California s tax agency charged with responsibility for administering the Sales and Use Tax Law. Recently, the Board revised its policy manual provisions regarding bankruptcy liquidation sales. The revisions suggest that the Board may be changing its policies regarding taxation of bankruptcy liquidation sales of TPP. II. California Tax Law Relevant To Liquidation Sales California imposes sales tax on a retailer measured by the retailer s gross receipts from all retail sales of TPP in California. 4 Retailer includes a person that holds a retail seller s permit and a person that is required to 1 Mr. Emard is an of counsel attorney with the Sacramento law firm Kronick Moskovitz Tiedemann & Girard. He is a former chapter 7 panel trustee and a former Tax Counsel with the California State Board of Equalization. The opinions expressed in this article are those of Mr. Emard only and do not necessarily reflect the opinions of the California State Board of Equalization or Kronick Moskovitz Tiedemann & Girard. 2 California Revenue and Taxation Code 6001 et seq U.S. 844, 109 S. Ct. 2228, 104 L.Ed.2d 910 (1989). 4 See 6051 of the Sales and Use Tax Law.

2 hold a retail seller s permit. 5 A retail sale is any sale of TPP, other than a sale for resale. 6 In Bigsby v. Johnson, 7 the California Supreme Court ruled that a printer who held a retail seller s permit must pay sales tax on his sale of used printing equipment. The printer argued that he was not engaged in the business of selling equipment and that his sale of used equipment was incidental to his retail printing business. The California Supreme Court found that the printer was a retailer because he held a retail seller s permit. The California Supreme Court also found that he sold the used equipment at retail as part of his business operations. Finally, the California Supreme Court found that the plain language of the sales tax statute required the printer to include his gross receipts from the equipment sale in the measure of the sales tax. California law provides an exemption from sales tax for an occasional sale of TPP. 8 An occasional sale involves a sale of TPP by a seller other than a retailer. A retailer can never qualify for the occasional sale exemption. If a seller who does not hold a retail seller s permit conducts three or more sales of TPP during any twelve month period, the seller is required to hold a retail seller s permit upon the third sale and the third sale does not qualify for the occasional sale exemption. 9 In its practical application, a person who is not a retailer, such as a service provider, can sell TPP, such as used office equipment, and qualify for the occasional sale exemption. However, if that person makes three or more sales of TPP during any twelve month period, the person is required to hold a retail seller s permit upon the third sale and must report and pay sales tax measured by the gross receipts from the third sale of TPP and every subsequent sale. California law provides that when sales tax is imposed on a retailer, the retailer may add sales tax reimbursement to the sales price of TPP. 10 It is presumed under the California Civil Code that the parties agreed to the addition of sales tax reimbursement if, among other things, the agreement of 5 See 6005, 6014, 6015, and 6019 of the Sales and Use Tax Law and Sales and Use Tax Regulation 1595(a). 6 See 6007 of the Sales and Use Tax Law Cal.2d 860 (1941). 8 See 6367 of the Sales and Use Tax Law. 9 See and 6367 of the Sales and Use Tax Law and Sales and Use Tax Regulation See California Civil Code and Sales and Use Tax Regulation 1700.

3 sale expressly provides for the addition of sales tax reimbursement. When a person collects sales tax reimbursement from a buyer improperly because the sale was not taxable or because the amount of the sales tax was miscalculated, the Board affords the person an opportunity to refund the excess sales tax reimbursement to the buyer. In the event that there is a failure or refusal to refund the excess sales tax reimbursement to the buyer and the amount is not paid to California, the Board will make a determination against the person for the amount of the excess tax reimbursement plus applicable interest and penalty. 11 California s use tax complements its sales tax. It was added to the Sales and Use Tax Law in 1935 when California realized that California consumers were going outside California to purchase TPP for use, storage or consumption in California and to avoid paying sales tax. 12 Use tax operates to tax sales of TPP much like sales tax. A fundamental difference is that use tax is imposed on the buyer, not on the retailer. 13 Also, California imposes use tax on buyers when they purchase vehicles, vessels and aircraft, whether new or used, for use or storage in California. California requires California dealers and brokers to collect use tax from their customers and to report and pay use tax to the Board. 14 III. California s Fight To Tax Bankruptcy Liquidation Sales Of TPP Shortly after California enacted its Sales and Use Tax Law in 1933, California began efforts to tax bankruptcy liquidation sales of TPP and it immediately met resistance in the federal courts. In In re California Pea Products, Inc., 15 the District Court affirmed the bankruptcy referee s permanent injunction restraining the Board from enforcing the Sales and Use Tax Law against the bankruptcy trustee, finding that a bankruptcy trustee was not mentioned in the Sales and Use Tax Law and therefore the trustee was not required to comply with its provisions. In In re Davis Standard Bread Company, 16 the District Court found that there was no provision in the Sales and Use Tax Law for payment of sales tax by trustees in bankruptcy. On appeal to the Ninth Circuit Court of Appeals in In re Davis Standard 11 Sales and Use Tax Regulation 1700(b)(2). 12 See 6201 of the Sales and Use Tax Law. 13 See 6202 of the Sales and Use Tax Law. 14 See 6203 of the Sales and Use Tax Law F. Supp. 658 (C.D. Cal. 1941) F. Supp. 841 (C.D. Cal. 1941).

4 Bread Company, 17 the Circuit Court found that the bankruptcy trustee was not a retailer under the Sales and Use Tax Law and affirmed the order of the bankruptcy referee enjoining the Board from attempting to collect the sales tax. In In re West Coast Cabinet Works, Inc., 18 the District Court found that the Sales and Use Tax law interfered with the administration of the bankruptcy case and held that a trustee selling in liquidation was not subject to the sales tax provisions of the Sales and Use Tax Law. On appeal to the Ninth Circuit Court of Appeals in Goggin v. State Board of Equalization (In re West Coast Cabinet Works, Inc.), 19 the Circuit Court held that in making a sale of assets of the bankruptcy estate for the purpose of liquidation, a trustee was not subject to the Sales and Use Tax Law. In 1951, California amended the Sales and Use Tax Law to add trustee in bankruptcy to its definition of person. 20 Also, California further defined retailer in the Sales and Use Tax Law to include a trustee in bankruptcy making three or more sales of TPP during any twelve month period. 21 California s amendments to the Sales and Use Tax Law were an obvious reaction to the adverse decisions it received from the federal courts and the federal courts interpretation of the scope of retailer under the Sales and Use Tax Law. In California State Board of Equalization v. Goggin (In re Columbia Stamping and Manufacturing Corporation), 22 shifting its focus away from an interpretation of the Sales and Use Tax Law, the Ninth Circuit Court of Appeals found that the intergovernmental tax immunity doctrine applied to prohibit use tax on bankruptcy liquidation sales of TPP and it held that essential sales in liquidation were free from the imposition of use tax. In Debtor Reorganizers, Inc. v. State Board of Equalization, 23 the California Second District Court of Appeal disagreed with Columbia Stamping and Manufacturing and held that even a direct sales tax on a bankruptcy trustee s liquidation sale of TPP or a use tax on a purchaser s use of TPP purchased from a bankruptcy trustee through a liquidation sale would not constitute an unlawful tax on the process of the bankruptcy court. Then, in 1989, the Supreme Court decided Sierra Summit and overturned the long line of Ninth Circuit case law that prohibited the F.2d 386 (9 th Cir. 1942) F. Supp. 636 (C.D. Cal. 1950) F.2d 726 (9 th Cir. 1951). 20 See 6005 of the Sales and Use Tax Law. 21 See 6019 of the Sales and Use Tax Law F.2d 44 (9 th Cir. 1957) Cal. App.3d 691 (1976).

5 imposition of sales tax and use tax on bankruptcy liquidation sales of TPP. In doing so the Supreme Court stated, there is now no constitutional impediment to the imposition of a sales tax or use tax on a liquidation sale. IV. The Board s Policies Regarding Bankruptcy Liquidation Sales After Sierra Summit After Sierra Summit, the Board added titled APPLICATION OF TAX ON SALES ORDERED BY FEDERAL COURTS to its Compliance Policy and Procedures Manual (the CPPM ) 24 and disseminated its new polices to the Regional Offices of the United States Trustee in California to inform bankruptcy trustees of these policies. Section of the CPPM provided in part: All taxable bankruptcy liquidation sales, by trustees or their representatives, occurring on or after June 13, 1989, will be subject to the Sierra Summit, Inc. decision. The Board will follow the rule of three or more sales in any twelve-month period, in each bankruptcy estate, in deciding if a particular liquidation sale is taxable. If, in any single estate sale, the trustee sells the assets in less than three transactions, the sales are not taxable.... If the trustee in a Chapter 11 proceeding sells some of the assets of the business, in addition to making normal retail sales, the asset sales are taxable. If, however, the Chapter 11 case converts to a Chapter 7 case, a new estate is created and the retail sales made by the trustee in the Chapter 11 proceeding do not apply when determining taxable sales in the Chapter 7 case. The Board will also follow the rule of three or more sales in any twelve-month period, in each bankrupt estate, when determining if sales by auctioneers/liquidators, acting as representatives of the trustee in liquidating assets of the estate, are taxable sales.... Sales of vehicles, vessels, or aircraft are not counted when determining if there have been three or more sales in a given estate. However, sales of vehicles, vessels, or aircraft, made by the trustee, auctioneer, or liquidator, are subject to the use tax whether or not three or more sales have been made in a single estate. 24 The CPPM is a public document that can be found on the Board s web site at boe.ca.gov.

6 A few clear rules emerged from this policy statement. First, for purposes of a bankruptcy liquidation sale, the Board considered a bankruptcy trustee in a chapter 7 case to be a retailer and a liquidation sale to be taxable only if the trustee conducted three or more sales of TPP during any twelve-month period for any one bankruptcy estate. Second, in a chapter 11 case, the Board considered a chapter 11 trustee to be a retailer and a liquidation sale to be taxable if the trustee first made normal retail sales while operating a business. Third, if a chapter 11 case converted to one under chapter 7, the Board did not count the sales of TPP during the chapter 11 case for purposes of determining whether a chapter 7 trustee was a retailer and a liquidation sale was taxable. Fourth, the Board did not consider sales of vehicles, vessels and aircraft for purposes of determining whether a trustee was a retailer and a liquidation sale was taxable. Fifth, the same rules that applied to bankruptcy trustees also applied to auctioneers and liquidators working for trustees. And sixth, sales of vehicles, vessels, and aircraft were always subject to use tax. This policy statement raised a few issues. Did it matter to the Board whether the debtor in the bankruptcy case held a seller s permit or was required to hold a seller s permit and was a retailer? Apparently it did not. Even though a debtor would have been taxed on a liquidation sale outside bankruptcy as a retailer, a bankruptcy trustee was not taxed unless the trustee became a retailer under the Board s rule of three policy. In chapter 11 cases, did the Board s rule of three policy apply to debtors in possession? This was unclear because the Board s policy was silent. The analysis was complicated by the fact that the Sales and Use Tax Law included only a bankruptcy trustee in its definition of retailer, not a debtor in possession. Also, under the Bankruptcy Code a debtor in possession has most of the rights, powers and duties of a trustee. 25 In chapter 11 cases, did the Board s rule of three policy apply when there were no normal retail sales during the bankruptcy case, only a liquidation sale? This also was unclear, although the language of the CPPM could be read to apply the rule of three unless normal retail sales had occurred. V. Recent Revisions To The Board s CPPM Regarding Bankruptcy Liquidation Sales 25 See 11 U.S.C

7 In December 2009, the Board removed from the CPPM. In its place, the Board added titled, SALE OF ASSETS OF A DEBTOR DURING BANKRUPTCY. Conspicuously absent from is any reference to occasional sales and the occasional sale exemption referred to in prior CPPM as the rule of three or more sales in any twelve-month period. Also absent is any statement concerning whether a bankruptcy liquidation sale of TPP is or is not taxable. Section provides in part: An Asset Purchase Agreement (APA) is a contract between a buyer and a seller (the seller may be a debtor in possession or a trustee) for the purchase of substantially all the assets of the debtor s bankruptcy estate... The APA should be reviewed closely to determine if there is any California tangible personal property being sold usually in the form of fixtures and equipment. SPS staff may request audit staff to review the APA to determine the tax consequences of a sale. Taxpayers should be encouraged by BOE staff to declare the amount due on a Sales and Use Tax Return or to state in writing the amount of the measure of the tax liability. If the APA does not specify a value for the fixtures and equipment, BOE staff should prepare an estimate of value. Once the amount of the tax liability is declared by a taxpayer, or determined by the BOE, an EOA claim should be filed for the full amount due if the liability is not voluntarily paid.... When a trustee or DIP employs an auctioneer/liquidator to sell the assets of the estate, any taxes are to be reported and paid by the auctioneer/liquidator. VI. The Sales And Use Tax Rules After The CPPM Revisions The recent revisions to the Board s CPPM signal that the Board has realized that bankruptcy liquidation sales of TPP are a potential source of significant sales tax revenue for California. However, to date it appears that the Board has not notified the District Offices of the United States Trustee in California of any change in its policy regarding the imposition of sales tax

8 on liquidation sales of TPP. 26 Unfortunately without clear guidance from the Board, the CPPM revisions raise more questions than they answer. What remains clear is that bankruptcy liquidation sales of vehicles, vessels, and aircraft, whether by bankruptcy trustees, debtors in possession, or their auctioneers are subject to use tax. Also, if a trustee or debtor in possession conducts normal retail sales of TPP before conducting a liquidation sale, the liquidation sale is taxable and the sales proceeds must be included in the measure of sales tax and sales tax must be reported and paid to the Board. Lastly, if the debtor was not a retailer, the occasional sale exemption or rule of three will apply to a trustee s liquidation sale of TPP. What is unclear after the CPPM revisions is whether the Board will continue to apply the occasional sale exemption or rule of three to a bankruptcy liquidation sale of TPP by a bankruptcy trustee, a debtor in possession, or an auctioneer when the debtor was a retailer and the liquidation sale would have been taxable outside bankruptcy. California could clarify this uncertainty by adding language to the Sales and Use Tax Law that provides for the retailer tax attribute of a retailer to pass through to the retailer s bankruptcy estate when the retailer files a bankruptcy petition. In the absence of such a legislative solution or something similar, the Board and the California bankruptcy professional community must look to the Sales and Use Tax law, as it was last amended in 1951, and the Sales and Use Tax Regulations, for the answers. Regarding bankruptcy trustees, the case history and the amendments to the Sales and Use Tax Law show that California intended to collect sales tax or use tax on bankruptcy liquidation sales of TPP. It seems that in implementing this intent after Sierra Summit, the Board faced the difficult task of harmonizing the Sales and Use Tax Law with bankruptcy law. A few concepts did not harmonize well. First, the early federal court decisions found that a bankruptcy trustee was not a retailer under the Sales and Use Tax Law. Reacting to this case law, California added trustee in bankruptcy to the Sales and Use Tax Law. This created a conceptual problem because a bankruptcy trustee is a representative of a bankruptcy estate. Chapter 7 bankruptcy trustees often administer many separate bankruptcy estates and conduct many liquidation sales of TPP for these estates over the course of a 26 The author has confirmed with the Office of the United States Trustee in Sacramento, California, that it has received from the Board no change in policy statement or other communication regarding bankruptcy liquidation sales.

9 twelve-month period. Under the rule of three or the occasional sale provisions of the Sales and Use Tax Law, this easily qualifies trustees as retailers for purposes of most bankruptcy liquidation sales of TPP. Apparently recognizing the practical problem with such a literal interpretation of the Sales and Use Tax Law, the Board s early policy clearly stated that it would follow the rule of three for a bankruptcy trustee in each bankruptcy estate. This policy recognized the bankruptcy concept that a bankruptcy estate is created upon the commencement of a bankruptcy case and a bankruptcy trustee is a representative of the estate. 27 However, in a bankruptcy case for a retailer debtor, it meant that a bankruptcy trustee received the benefit of the occasional sale exemption or rule of three even though the retailer would not have received it outside bankruptcy. Furthermore, the Board faced the problem of harmonizing the bankruptcy trustee language in the Sales and Use Tax Law with Sales and Use Tax Regulation This regulation provides for officers appointed in state court proceedings for purposes of liquidating assets, such as receivers, commissioners, sheriffs, and others, to receive the benefit of the occasional sale exemption. If California does not provide bankruptcy trustees with this same benefit, it could be perceived as discrimination against federal officers. Rather than seek a legislative solution to the problems, the Board solved the problems by creating a policy that provided bankruptcy trustees with the benefit of the occasional sale exemption. The result was the loss of significant sales tax revenue and the creation of a tax avoidance loophole. Regarding debtors in possession, the Sales and Use Tax Law and the Sales and Use Tax Regulations are silent. Does this mean that bankruptcy liquidation sales by debtors in possession are not taxable? Does it mean that debtors in possession cannot claim the occasional sale exemption? Applying the reasoning of the early federal court decisions, since debtors in possession are not included in the definition of retailer under the Sales and Use Tax Law, they cannot be taxed. However, under bankruptcy law, a debtor in possession has most of the rights, powers and duties of a bankruptcy trustee and a strong argument can be made that they should be treated the same as U.S.C See 7051 of the Sales and Use Tax Law and Sales and Use Tax Regulation 1500 which provide the Board with authority to adopt regulations to implement, interpret or make specific provisions of the Sales and Use Tax Law.

10 bankruptcy trustees for purposes of taxation. 29 Such an analysis is consistent with the bankruptcy concept that a bankruptcy estate is created upon the commencement of a bankruptcy case. It should not matter whether the administrator of the bankruptcy estate is a trustee or a debtor in possession. But if a debtor in possession should be taxed as a bankruptcy trustee, a debtor in possession should receive the benefit of the occasional sale exemption like a bankruptcy trustee. Regarding auctioneers, The Sales and Use Tax Law includes in its definition of retailer every person in the business of making sales at auction of tangible personal property owned by the person or others. 30 The Sales and Use Tax Law is clear that auctioneers are retailers. As such, auctioneers do not receive the benefit of the occasional sale exemption when they sell TPP. However, of the CPPM provided that auctioneers received the benefit of the occasional sale exemption when they were representatives of bankruptcy trustees. The reasoning for this provision is unclear. The removal of this provision from the CPPM and the addition of the auctioneer/liquidator language to of the CPPM has created uncertainty. The language of does not state that liquidation sales of TPP by auctioneers are taxable or not taxable. It states When a trustee or DIP employs an auctioneer/liquidator to sell the assets of the estate, any taxes are to be reported and paid by the auctioneer/liquidator. Whether any taxes are imposed on an auctioneer as the retailer under the Board s policy when an auctioneer sells TPP of a bankruptcy estate remains an open question. VII. Protective Steps The uncertainties regarding taxation of bankruptcy liquidation sales of TPP and the absence of a legislative solution and clear guidelines from the Board place bankruptcy trustees, debtors in possession, and their professionals at risk. Should they report and pay sales tax on their gross receipts from bankruptcy liquidation sales of TPP? If so, should chapter 7 trustees obtain sellers permits from the Board? Should they collect sales tax reimbursement from purchasers of TPP at their bankruptcy liquidation sales? Should they continue as before and hope that the Board does not impose sales tax or use tax on their liquidation sales of TPP and file expense 29 See 11 U.S.C. 1107(a). 30 See 6015(a)(2) of the Sales and Use Tax Law.

11 of administration claims in bankruptcy cases? These are difficult questions. Until the rules are clarified, there are some steps bankruptcy trustees, debtors in possession, and their professionals can take to protect themselves and bankruptcy estates. One step a trustee or debtor in possession can take after a liquidation sale of TPP for the bankruptcy estate of a retailer debtor is to file a sales tax return with the Board showing gross receipts from the sale and claiming the occasional sale exemption to exempt the sales proceeds from sales tax. Such a return should be accompanied by a request for a determination of tax liability pursuant to 11 U.S.C. 505(b). If the Board does not notify the trustee or debtor in possession that the return has been selected for examination within 60 days and complete the examination and notify the trustee or debtor in possession of any tax due within 180 days, an argument can be made that the trustee or debtor in possession and the bankruptcy estate are discharged of any liability for sales tax. The Board has acknowledged this procedure in its CPPM and it has provided an address for notice. 31 Another protective step a trustee, a debtor in possession, and an auctioneer can take before or after a liquidation sale of TPP is to send the Board a written request for a legal ruling from the Board s counsel on the tax consequences of a liquidation sale of TPP pursuant to 6596 of the Sales and Use Tax Law and Sales and Use Tax Regulation If the request meets the legal requirements set forth in the statute and the regulation, the written advice received from the Board s counsel may be relied on for relief from tax liability. VIII. Conclusion California is facing an unprecedented fiscal crisis. It needs additional sources of revenue to address this crisis. One such source of revenue, overlooked for years, is sales tax revenue from bankruptcy liquidation sales of TPP. Federal law no longer prohibits California from collecting sales tax or use tax on bankruptcy liquidation sales of TPP. However, the Sales and Use Tax Law hinders collection of sales tax on these sales due to the manner in which it was amended in 1951 to overcome the adverse federal case law that prohibited taxation of bankruptcy liquidation sales of TPP. This case law has since been overturned, but the Sales and Use Tax Law has not changed. California needs new legislation to clarify 31 See of the CPPM.

12 the rules for taxation of bankruptcy liquidation sales of TPP and to remove the hindrances to taxation. Legislation that adds language to the Sales and Use Tax Law to provide for the retailer tax attribute of a retailer to pass to the bankruptcy estate of the retailer when the retailer files bankruptcy is one solution. Until a solution is found and implemented, the Board will continue to face the challenge of adapting its policies for taxation of bankruptcy liquidation sales of TPP to the language of the Sales and Use Tax Law. And bankruptcy trustees, debtors in possession, and the professionals they employ will continue to face the uncertainty of the rules for such taxation.