In Re Donald MacNeil in Re Sharlee MacNeil Debtors. American State Bank Cit Financial Services, Inc. v. Thomas G. Marks , 907 F.2d 903 ( 1990 )

PER CURIAM:

On August 11, 1989 the Bankruptcy Appellate Panel for the Ninth Circuit (“BAP”) affirmed a decision of the United States Bankruptcy Court for the District of Oregon (“Bankruptcy Court”) holding that under 11 U.S.C. § 726(b), Chapter 7 administrative expenses are entitled to priority over Chapter 11 claims granted superpriority status under 11 U.S.C. § 507(b). American State Bank v. Marks (In re MacNeil), 102 B.R. 766, 768 (9th Cir. BAP 1989) (per curiam). In reaching that conclusion, both the Bankruptcy Court and the BAP declined to address the underlying factual dispute whether the claims of secured creditors American State Bank (“ASB”) and CIT Financial Services (“CIT”) were entitled to section 507(b) superpriority.

Had the Bankruptcy Court determined that neither ASB nor CIT were entitled to superpriority for the above claims we would not now be asked to resolve the legal question whether such a superpriority is subordinate to Chapter 7 administrative claims. In the absence of such a factual determination, any expression by this court concerning the hierarchy of these claims would constitute the rendering of an advisory opinion, i.e., “an opinion advising what the law would be upon a hypothetical state of facts.” Vieux v. East Bay Regional Park Dist., 893 F.2d 1558, 1573 (9th Cir.1990), quoting Aetna Life Ins. Co. v. Haworth, 300 U.S. 227, 241, 57 S.Ct. 461, 464, 81 L.Ed. 617 (1937). We are not empowered to issue advisory opinions. See North Carolina v. Rice, 404 U.S. 244, 246, 92 S.Ct. 402, 404, 30 L.Ed.2d 413 (1971) (per curiam).

Accordingly, the decision of the BAP is VACATED and this matter is REMANDED to the Bankruptcy Court for a factual determination whether the claims of ASB and CIT are entitled to superpriority under section 507(b).

VACATED and REMANDED for further proceedings.