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Судебные дела / Зарубежная практика  / Patrick E. CATALANO, Petitioner-Appellee, v. COMMISSIONER OF INTERNAL REVENUE, Respondent - Appellant., United States Court of Appeals, Ninth Circuit., 279 F.3d 682, No. 00-70998., January 28, 2002

Patrick E. CATALANO, Petitioner-Appellee, v. COMMISSIONER OF INTERNAL REVENUE, Respondent - Appellant., United States Court of Appeals, Ninth Circuit., 279 F.3d 682, No. 00-70998., January 28, 2002


Patrick E. CATALANO, Petitioner-Appellee, v. COMMISSIONER OF INTERNAL REVENUE, Respondent - Appellant.

United States Court of Appeals, Ninth Circuit.

279 F.3d 682

No. 00-70998.

January 28, 2002.

Argued and Submitted Dec. 4, 2001.

Filed Jan. 28, 2002.

Paula M. Junghans, Acting Assistant At╜torney General; Thomas J. Clark, Annette M. Wietecha, U.S. Department of Justice, Tax Division, Washington, D.C., for the respondent-appellant.

Patrick E. Catalano, in pro per, for the petitioner-appellee.

Appeal from a Decision of the United States Tax Court.

Before BRUNETTI, KLEINFELD and THOMAS, Circuit Judges.


THOMAS, Circuit Judge.

In this appeal, we consider whether an order granting relief from an automatic stay always constitutes an abandonment of property under bankruptcy law. We con╜clude that it does not, and we reverse the decision of the Tax Court.


In 1988, Patrick Catalano purchased a residential condominium in San Francisco, California for $1.8 million. He financed $1.4 million of the purchase price with a loan from Wells Fargo Bank that was se╜cured by a lien on Catalano's residence. Catalano stopped making payments of ei╜ther interest or principal on the Wells Fargo loan as of June 1, 1994.

Shortly thereafter, Catalano filed a vol╜untary petition for bankruptcy under Chapter 11 of the Bankruptcy Code, re╜sulting in an automatic stay of any action, to foreclose against the property. 11 U.S.C. ╖ 362. Wells Fargo subsequently filed a motion in the Bankruptcy Court asking for relief from the automatic stay to permit it, and the trustee under the deed of trust, to foreclose on Catalano's resi╜dence. Catalano opposed the motion on the ground that the value of the property was substantially greater than that of the outstanding debt. However, the Bank╜ruptcy Court lifted the automatic stay to allow foreclosure, but, by stipulation of the parties, delayed the date upon which the creditor could exercise its rights to provide Catalano the opportunity to sell the prop╜erty as a going concern.

Thereafter, Wells Fargo proceeded with a trustee's sale of the residence pursuant to California law. At the public auction, held on August 10, 1995, the property was sold to Wells Fargo for $1,215,000. As of that date, the outstanding principal bal╜ance of the Wells Fargo loan was $1,341,352.

Catalano's bankruptcy estate did not file a federal income tax return for 1995; rath╜er, Catalano reported the foreclosure sale of his residence on his own tax return for that year. In his return, he listed both the selling price and his basis in the residence as $1,215,000, and therefore reported no gain on the sale. Further, Catalano claimed a deduction of $126,352 for inter╜est, which was the amount of interest that, in Catalano's -view, had accrued on the Wells Fargo loan but had not been paid at the time of the foreclosure sale.

Upon audit, the Internal Revenue Ser╜vice disallowed this deduction, as well as deductions claimed for fees paid in the bankruptcy case and a loss on the rental of one of his boats. The Commissioner thus determined a deficiency in Catalano's 1995 income tax in the amount of $70,198, and imposed a penalty in the amount of $14,040, for a substantial understatement of tax pursuant to ╖ 6662(a) of the Inter╜nal Revenue Code.

The Commissioner asserted two inde╜pendent grounds for disallowing the de╜duction for mortgage interest. First, the Commissioner argued that, under ╖ 541 of the Bankruptcy Code, Catalano's residence was property of the bankruptcy estate at the time of the foreclosure, and that there╜fore all tax consequences of the sale should have fallen upon the bankruptcy estate, rather than the taxpayer. Second, the Commissioner argued that, in any event, Catalano could not be considered to have paid any interest in 1995 because the fair market value of his residence, which the Commissioner maintained was accurately reflected in the amount Wells Fargo bid at the foreclosure sale, was less than the outstanding principal on the loan. The Commissioner contended that, because the proceeds from the sale were insufficient to pay off the entire amount of outstanding principal, there were no proceeds remain╜ing with which interest could have been paid.

In response, Catalano first asserted that the property was removed from the bank╜ruptcy estate when the Bankruptcy Court granted Wells Fargo's request for relief from the stay and that, therefore, it was proper for him to report the tax conse╜quences of the foreclosure on his 1995 tax return. In addition, Catalano contended that the fair market value of his residence at the time of the foreclosure was higher than the principal and interest due, and that he was therefore deemed to have paid the accrued mortgage interest in the fore╜closure sale.

Following a trial, the Tax Court issued a memorandum opinion on May 9, 2000, holding substantially in favor of Catalano. It held that, under Ninth Circuit law, the filing of an order lifting the automatic stay results in an abandonment of the property by the bankruptcy estate as a matter of law. Given that premise, the court al╜lowed the interest deduction, reasoning that the amount realized upon the foreclo╜sure sale of property subject to nonre╜course debt includes both the principal amount of the indebtedness and any ac╜crued interest. The Commissioner ap╜peals.


"Abandonment" is a term of art with special meaning in the bankruptcy context. It is the formal relinquishment of the property at issue from the bankruptcy estate. Upon abandonment, the debtor's interest in the property is restored nunc pro tunc as of the filing of the bankruptcy petition.

Under the Bankruptcy Code, abandonment of property by the trustee requires notice and a hearing. 11 U.S.C. ╖ 554. Specifically, ╖ 554 provides:

(a) After notice and a hearing, the trust╜ee may abandon any property of the estate that is burdensome to the estate or that is of inconsequential value and benefit to the estate.

(b) On request of a party in interest and after notice and a hearing, the court may order the trustee to abandon any property of the estate or that is of incon╜sequential value and benefit to the es╜tate.

(c) Unless the court orders otherwise, any property scheduled under section 521(1) of this title not otherwise adminis╜tered at the time of the closing of a case is abandoned to the debtor and adminis╜tered for purposes of section 350 of this title.

(d) Unless the court orders otherwise, property of the estate that is not aban╜doned under this section and that is not administered in the case remains prop╜erty of the estate.

In short, "[a]bandonment requires formal notice and a hearing." Quarre v. Saylor (In re Saylor), 108 F.ad 219, 221 n. 3 (9th Cir.1997). The formalities are important because abandonment is revocable only in very limited circumstances, such as "where the trustee is given incomplete or false information of the asset by the debtor, thereby foregoing a proper investigation of the asset." Cusano v. Klein, 264 F.3d 936, 946 (9th Cir.2001) (internal quotations omitted). Revocation of abandonment may only be accomplished by express or╜der of the bankruptcy court. Id.

Catalano argues that the order lift╜ing the automatic stay in this case pursu╜ant to 11 U.S.C. ╖ 362 accomplished a de facto abandonment of the property under the Bankruptcy Code, despite the fact that no formal abandonment was obtained un╜der 11 U.S.C. ╖ 554. We have rejected such assertions in other contexts. See, e.g., Saylor, 108 F.3d at 221 n. 3 (rejecting contention that the bankruptcy trustee's determination that the case was a "no asset" case constituted a de facto abandon╜ment of the property); Schwaber v. Reed (In re Reed), 940 F.2d 1317, 1321 (9th Cir.1991) (holding that the "No Asset" re╜port does not result in abandonment of property unless court closes the case). In╜deed, to hold otherwise would be to repu╜dite the express language of ╖ 554.

Further, Catalano misappre╜hends the portent of ╖ 362. The filing of a bankruptcy petition creates a bankruptcy estate comprised of the debtor's legal or equitable interests in property wherever located and by whomever held. 11 U.S.C. ╖ 541(a); Hong Kong & Shanghai Bank╜ing Corp., Ltd. v. Simon (In re Simon), 153 F.3d 991, 996 (9th Cir.1998). As a result, "[t]he district court in which the bankruptcy case is commenced obtains ex╜clusive in rem jurisdiction over all of the property in the estate." Id. With the filing of a bankruptcy petition, a self-executing automatic stay is imposed which "enjoin[s] the commencement or continuation of any judicial, administrative, or other proceed╜ings against the debtor, enforcement of prior judgments, perfection of liens, and any act to collect, assess or recover a claim against the debtor that arose before the commencement of the case." Gruuntz v. County of Los Angeles (In re Gruntz), 202 F.3d 1074, 1081-82 (9th Cir.2000) (en banc) (internal quotations omitted). When a bankruptcy court lifts, or modifies, the au╜tomatic stay, it merely removes or modi╜fies the injunction prohibiting collection ac╜tions against the debtor or the debtor's property. Although the property may pass from the control of the estate, that does not mean that the estate's interest in the property is extinguished. See Jim Walter Homes, Inc. v. Saylors (In re Say╜lors), 869 F.2d 1434, 1437 (11th Cir.1989). "Relief from an automatic stay entitles the creditor to realize its security interest . . . in the property, but all proceeds in excess of the creditor's interest must be returned to the trustee." Nebel v. Richardson (In re Nebel), 175 B.R. 306, 312 (Bankr.Neb. 1994) (citing Killebrew v. Brewer (In re Killebrew), 888 F.2d 1516, 1520 (5th Cir. 1989)). Thus, an order lifting the automat╜ic stay by itself does not release the es╜tate's interest in the property and "the act of lifting the automatic stay is not analo╜gous to an abandonment of the property." Id. at 311 (citing In re Ridgemont Apart╜ment Assocs., 105 B.R. 738, 741 (Bankr. N.D.Ga.1989)).

For this reason, Wilson v. Bill Barry Enters., Inc., 822 F.2d 859 (9th Cir.1987) does not compel a contrary result, as Cata╜lano urges. In Wilson , we held that a state court had jurisdiction to determine property rights once the bankruptcy court granted relief from the automatic stay to allow a lessor to terminate its lease with the debtor-lessee. The fact that the state court had jurisdiction to determine post-relief property rights under state law does not mean that the estate's interest in the property was extinguished. To the con╜trary, unless otherwise ordered, proceeds from the sale of collateral by a creditor in excess of the creditor's interest following an automatic stay modification are payable to the estate.

Thus, property is not considered aban╜doned from the estate unless the proce╜dures specified in ╖ 554 are satisfied. In short, an order lifting or modifying the automatic stay by itself does not constitute a de facto abandonment of the property from the bankruptcy estate.


Catalano also contends that the order granting relief from the automatic stay constituted an abandonment under the specific facts of this case. It is true that an order lifting or modifying the auto╜matic stay may constitute an abandonment if the automatic stay order provides so explicitly. This is allowed by implication under the catchall subsection, 11 U.S.C. ╖ 554(d), which states that "[u]nless the court orders otherwise, property of the estate that is not abandoned under this section and that is not administered in the case remains property of the estate." Id. (emphasis added). Thus, under ╖ 554(d), the bankruptcy court may issue an aban╜donment order in a bankruptcy. proceeding that involves issues other than abandonment, such as automatic stay litigation. However, if an abandonment order is in╜cluded within an order issued pursuant to another section of the Bankruptcy Code, the order must set forth the abandonment specifically and affirmatively, and parties in interest must have received the requi╜site notice and hearing required by ╖ 554(a).

In this instance, the bankruptcy court order granting relief from the stay did not mention abandonment in any fashion. It did postpone relief for a specified period to provide the debtor with an opportunity to sell the property as a going concern. However, this procedure-which is not un╜usual at all in bankruptcy proceedings-is not equivalent to formal abandonment. Indeed, if the creditor had sold the proper╜ty for more than its secured interest, the excess proceeds would have been payable to the estate, not the debtor.

Thus, absent a formal order of abandon╜ment contained within the order granting relief from the stay, abandonment is not accomplished under ╖ 554(d). Without such supporting language in this case, Ca╜talano's argument fails.

Catalano also contends that, at the very least, abandonment occurred when the case was closed. Although this is doubt╜less true, it is of no avail to Catalano because the case was not closed in the year that Catalano claimed the tax deduction.


In summary, an order granting relief from the automatic stay does not consti╜tute a de facto abandonment of the prop╜erty at issue. A relief order may also include an enforceable abandonment pro╜vision, but the intent to abandon under ╖ 554 must be set forth explicitly in the order and parties in interest must have been afforded a notice of the intent to abandon and afforded a hearing. Be╜cause an order granting relief from the stay does not, as a matter of law, consti╜tute property abandonment, and because the order in this case does not contain specific abandonment language, no prop╜erty abandonment occurred in the case at bar. Thus, the Tax Court's decision to allow the interest deduction was founded on an incorrect legal premise.



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