Question about Collection Activity of State Board of Equalization for Sales Tax
Posted: Thu Sep 25, 2014 6:01 pm
The threat wasn't to further pursue the debtor, the estate property, or a co-debtor on a consumer debt. I view it more as a factual statement of policy regarding exercise of SBE's right to collect against the nondebtor.
Peter M. Lively, J.D., M.B.A.
Law Office of Peter M. Lively * Personal Financial Law Center I
11268 Washington Boulevard, Suite 203, Culver City, California 90230-4647
Telephone: (310) 391-2400 * Toll Free: (800) 307-3328 * Fax: (310) 391-2462
On Thursday, September 25, 2014 5:42 PM, "Holly Roark hollyroark22@gmail.com [cdcbaa]" wrote:
I understand how you are viewing this and I get that there is no codebtor stay here, but what I was looking at is his attempt to collect from the Debtor directly by using this threat.
Holly Roark
Certified Bankruptcy Specialist*
and Sports Lawyer
holly@roarklawoffices.com **primary email address**
http://www.roarklawoffices.com/
Central District of California
Consumer Bankruptcy Attorney
1875 Century Park East, Suite 600
Los Angeles, CA 90067
T (310) 553-2600
F (310) 553-2601
*By State Bar of California Board of Legal
Specialization
**For a quicker response, email me at holly@roarklawoffices.com.
I only use gmail for my listservs, and am likely to miss private emails
directed to my gmail account.**
On Thu, Sep 25, 2014 at 5:36 PM, 'Peter M. Lively' petermlively2000@yahoo.com [cdcbaa] wrote:
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>[Attachment(s) from Peter M. Lively included below]
>Given that sales taxes are nonconsumer debts, there isn't a codebtor stay as to the buyer. I'm not persuaded that the statement by the SBE agent is a stay violation.
>
> Peter M. Lively, J.D., M.B.A.
>Law Office of Peter M. Lively * Personal Financial Law Center I
>11268 Washington Boulevard, Suite 203, Culver City, California 90230-4647
>Telephone: (310) 391-2400 * Toll Free: (800) 307-3328 * Fax: (310) 391-2462
>
>
>
>On Thursday, September 25, 2014 4:09 PM, "Holly Roark hollyroark22@gmail.com [cdcbaa]" wrote:
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>The Plan is not yet confirmed.
>
>On Thursday, September 25, 2014, Nicholas Gebelt ngebelt@gebeltlaw.com [cdcbaa] wrote:
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>
>>
>>Dear Holly,
>>
>>If the plan has been confirmed, then it is binding on SBE pursuant to then it is in violation of the order confirming the plan. Sovereign immunity has been abrogated with respect to 1327 pursuant to 106(a)(1). Therefore, you can seek relief using an OSC re contempt motion to get costs and attorneys fees under 105. However, you cannot get punitive damages because of 106(a)(3).
>>
>>If the plan has not been confirmed, then if SBE has filed a proof of claim it has waived sovereign immunity pursuant to 106(b). This waiver does not appear to be restricted to the Code sections listed in 106(a)(1).
>>
>>Sovereign immunity has also been abrogated with respect to 362 pursuant to 106(a)(1), and in particular, abrogated with respect to was clearly intended to induce payment by the Debtor is a stay violation. Since 362(k) explicitly mandates costs and attorney attorneys fees . . .), you can get paid for your efforts.
>>
>>And Stella, the U.S. Supreme Court upheld the constitutionality of 106 in Central Va. Cmty. Coll. V. Katz, 126 S. Ct. 990 (206), so any appeal to the Eleventh Amendment by SBE will fail. The Court addressed the Eleventh Amendment argument and held: The . . . States agreed in the plan of the Convention not to assert any sovereign immunity defense they might have had in proceedings brought pursuant to Laws on the subject of Bankruptcies. Central Va. Cmty. Coll. V. Katz, 126 S. Ct. at 377.
>>
>>Good luck,
>>
>>Nick
>>
>>Nicholas Gebelt
>>
>>Nicholas Gebelt, Ph.D., J.D.
>>Attorney at Law
>>Certified Bankruptcy Law Specialist
>>
>>
>>
>>Law Offices of Nicholas Gebelt
>>15150 Hornell Street
>>Whittier, CA 90604
>>Phone: 562.777.9159
>>FAX: 562.946.1365
>>Email: ngebelt@goodbye2debt.com; ngebelt@gebeltlaw.com
>>Web: www.goodbye2debt.com
>>Blog: www.southerncaliforniabankruptcylawblog.com/
>>
>>Important notice required by 11 U.S.C. 528:We are a debt relief agency. We help people file for bankruptcy relief under the Bankruptcy Code.>>
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>>From:cdcbaa@yahoogroups.com [mailto:cdcbaa@yahoogroups.com]
>>Sent: Thursday, September 25, 2014 2:24 PM
>>To: cdcbaa@yahoogroups.com
>>Subject: RE: [cdcbaa] Question about Collection Activity of State Board of Equalization for Sales Tax
>>
>>
>>SBE is the most difficult of all state agencies to deal with. It is a kingdom onto itself. Until recently, it was taking the position that it was not subject to the jurisdiction of the bankruptcy court because of the 11th amendment. I would pay the $1,400 and not make a big to do. SBE will do what it says it will do and worse.
>>
>>Stella
>>
>>From:cdcbaa@yahoogroups.com [mailto:cdcbaa@yahoogroups.com]
>>Sent: Thursday, September 25, 2014 2:13 PM
>>To: Strictly Bankruptcy Issues; cdcbaa
>>Subject: [cdcbaa] Question about Collection Activity of State Board of Equalization for Sales Tax
>>
>>
>>Chapter 13 debtor filed plan which is paying 100% to State Board of Equalization for sales tax for which she is personally liable for a corporation that is no longer active. The only business that the corporation did was owning a restaurant. The restaurant was sold. No escrow was used, and apparently there was some sales tax owed for which Debtor has been paying pursuant to a payment plan with the SBE. Debtor does not meet the requirements set forth here: http://www.jdsupra.com/legalnews/discha ... ili-30155/ to discharge such taxes.
>>The tax is only $1,400, so we are not talking a huge amount here.
>>Despite including the SBE in the Plan as a priority debt, serving the Plan on the SBE, and talking to the SBE about this treatment in the Plan, SBE *threatened* Debtor that if she did not stick to their prior payment plan of $300/month, then they would go after the buyer of the restaurant who is apparently also liable on the tax by virtue of buying the restaurant and not getting a certificate of tax clearance: http://www.boe.ca.gov/sutax/faqbus.htm
>>Aside from the Stay violation, which is another conversation (SBE will probably say, no, they were not really talking to the "Debtor" but to the officer of the dead corporation that originally owed the tax), I'd like to know if anyone has had experience with the SBE, and what can Debtor do, if anything, to keep the SBE from seeking payment from the buyers? If SBE does get paid from buyers, does Debtor then have to pay back the buyers through the Chapter 13 Plan as a priority debt as if buyer were the SBE?
>>
>>I'd like to hear any other comments or observations you have on this. I want to call the SBE back with some leverage, but I want to make sure I understand what's what here.
>>
>>
>>Holly Roark
>>Certified Bankruptcy Specialist*
>>and Sports Lawyer
>>holly@roarklawoffices.com **primary email address**
>>http://www.roarklawoffices.com/
>>Central District of California
>>Consumer Bankruptcy Attorney
>>1875 Century Park East, Suite 600
>>Los Angeles, CA 90067
>>T (310) 553-2600
>>F (310) 553-2601
>>*By State Bar of California Board of Legal Specialization
>>
>>**For a quicker response, email me at holly@roarklawoffices.com.
>>I only use gmail for my listservs, and am likely to miss private emails >>directed to my gmail account.**
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