Chapter 11 liquidating trust
Whether the trust is the product of a bankruptcy plan or a state law plan of dissolution, certain factors must be considered. Section 1123(b)(3)(B) of the Bankruptcy Code allows this prospect to be avoided.
To find out more, Lawyer Monthly hears from Ashley B. It states that a plan may provide for the retention and enforcement by the debtor, by the trustee, or by a representative of the estate appointed for such purpose, of any such claim or interest.
These tasks may not justify the salaries being paid to the management team, which may wish to move on to new challenges.
These considerations may tip the scales in favor of setting up a liquidation vehicle and bringing in an administrator experienced with winding down operations.
The appointment is generally done in the plan, confirmation order and trust agreement. 94-45, the plan and disclosure statement must explain how the bankruptcy estate will treat the transfer of its assets to the trust for federal income tax purposes.
The liquidating trustee must also demonstrate that he or she qualifies as a representative of the estate. 94-45 notes that it does not define as a matter of law the circumstances under which an organization will be classified as a liquidating trust for income tax purposes, the conditions are commonly incorporated into plans and liquidating trust agreements whether or not an advance ruling is sought. A transfer to a liquidating trust for the benefit of creditors must be treated for all purposes of the Revenue Code as a transfer to creditors to the extent that the creditors are beneficiaries of the trust.
Section 1123(b) (3) of the Bankruptcy Code facilitates the use of a liquidating trust for prompt administration of the estate by providing post-confirmation standing to an appointed representative of the estate to enforce claims and interests.A trustee qualifies as a representative of the estate if a successful recover would benefit, directly or indirectly, the debtor’s the creditors that are beneficiaries of the trust. The transfer will be treated as a deemed transfer to the beneficiary-creditors followed by a deemed transfer by the beneficiary-creditors to the trust.Treasury Regulation 301.7701-4(d), 26 CFR § 301.7701-4(d) (“Treas. 301.7701-4(d)”) provides for establishment of a liquidating trust as a grantor trust, such that it will be a pass-through entity for tax purposes, without an entity-level tax. The plan, disclosure statement, and trust agreement must provide that the beneficiaries of the trust will be treated as the grantors and deemed owners of the trust and that the trust instrument (or plan if a separate trust agreement does not exist) requires the trustee to file returns for the trust as a grantor trust pursuant to section 1.671-4(a) of the Income Tax Regulations, 26 CFR § 1.671-4(a).For an entity with a complicated asset portfolio, it may make sense to transfer all assets, rights, and causes in action to a liquidating trust that can liquidate assets and investments over time, avoiding market dips and other timing concerns.Moreover, to the extent that entities like partnerships and limited liability companies are not permitted to engage in business once they are dissolved, the liquidating trust may be authorized to operate or hold certain assets to take advantage of economic factors (but subject to tax considerations).
Trustees may initiate these actions against parties with little to no connection to the United States raising unsettled questions over jurisdiction. Ascot (In re Waste2Energy Holdings, Inc.), Case No. It also represents parties in other insolvency proceedings, including receiverships, assignments for the benefit of creditors, dissolution proceedings under state law and rehabilitations and liquidations of insurance companies.