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As chapter 11 filings increase, so will the number of chapter 11 liquidations. §1146(c) provides that "The issuance, transfer or exchange of a security, or the making or delivery of an instrument of transfer under a plan confirmed under §1129 of this title, may not be taxed under any law imposing a stamp tax or similar tax," failing to pay other taxes could create personal liability for the liquidation trustee if the liquidation trust's assets are depleted. The court held the trustee personally liable under 26 U. Although the trustee in Hemmen was not held personally liable for taxes, it is an example of the caution a liquidation trustee must exercise in administering the liquidation trust. Indeed, filing chapter 11 does not equate to reorganization. Additional liability may result from the requirement to pay quarterly fees to the U. Trustee "until the case is converted or dismissed." 28 U. Indeed, trustees can be exposed to personal liability for acting outside of their official capacity and for breaches of fiduciary duty. The trustee received notice of the levy and then paid the debtor's president's allowed administrative claim from the liquidation funds of the estate. §6332 for failing to honor the levy, even though the trustee notified the government that he was going to disburse the funds and the IRS raised no objection at that time. A liquidation trustee is generally required to pay post-confirmation quarterly fees out of the funds of the trust. Nonetheless, liquidation trustee position can be lucrative. Although only a few reported cases detail the basis for a liquidation trustee's liability, there are a number of causes of action to consider and protect against, e.g., distributing all assets prior to resolving all claims objections, the costs of administering the liquidation estate and general malpractice actions, just to name a few.
As such, candidates for liquidation trustee positions must consider the exposure potential to liabilities for acts and omissions occurring while administering the liquidation trust. Other penalties may be imposed, such as reducing the liquidation trustee's compensation or imposing a surcharge on the liquidation trustee. A liquidating plan usually contemplates establishing a liquidation trust, assigning assets and causes of action, and appointing a liquidation trustee. 1989) ("Trustees of an estate in bankruptcy are subject to personal liability for willful violations of fiduciary duties."). To avoid such personal liability, trustees must take the utmost care in their duties, particularly considering the differing causes of action that could accrue. Supreme Court held that under the Internal Revenue Code, a liquidation trustee must "pay the tax due on the income attributable to the corporate debtors' property because [26 U. C.] §6012(b)(3) requires him to make a return as the 'assignee' of the 'property..a corporation.'" Holywell Corp. After confirmation and appointment, the liquidation trustee then serves as the liquidation trust's representative and is responsible for complying with the trust agreement (and confirmation order), liquidating the assets and making distributions to trust beneficiaries. This necessitates a liability policy and/or an indemnity agreement to protect the liquidation trustee from errors and omissions. As a "trustee," a liquidation trustee has potential exposure for numerous liabilities. 1996) (dicta indicating that the liquidation trust would have been liable if amendments to 28 U. §1930(a)(6) had occurred before plan confirmation). One court addressing this issue held that because "Congress intend[ed] such fees be paid by chapter 11 debtors prior to conversion or dismissal...," and because the trust has "essentially stepped into the shoes of the original debtor," then the trust is "liable for any such fees which may be imposed." In re CSC Indus.