In Re Mattis

93 B.R. 68 (1988)

In re Jay W. MATTIS, Debtor.

Bankruptcy No. 87-02067T.

United States Bankruptcy Court, E.D. Pennsylvania.

November 28, 1988.

Henry S. Friedman, Trial Atty., Tax Div., U.S. Dept. of Justice, Washington, D.C., for U.S.

John R. Crayton, McCarthy & Crayton, Bensalem, Pa., for debtor.

OPINION

THOMAS M. TWARDOWSKI, Bankruptcy Judge.

The debtor, Jay W. Mattis ("debtor"), has filed a motion to avoid the statutory lien of the IRS under 11 U.S.C. § 545(2), to which the United States has filed a motion to dismiss. The parties stipulate that the IRS properly filed a notice of tax lien pursuant to 26 U.S.C. § 6323(a) and (f) prior to the filing of debtor's chapter 13 petition and that debtor owns no real property or automobiles, but only personal property valued at $2010.00. The parties further stipulate that the only issue to be decided is whether debtor can avoid the IRS lien under 11 U.S.C. § 545(2). For the reasons outlined below, we find that debtor lacks standing to invoke the § 545(2) avoiding powers of the trustee to avoid an IRS lien. Accordingly, we grant the United States' motion to dismiss.

11 U.S.C. § 545(2) provides that:

The trustee may avoid the fixing of a statutory lien on property of the debtor to the extent that such lien —

* * *

(2) is not perfected or enforceable at the time of the commencement of the case against a bona fide purchaser that purchases such property at the time of the commencement of the case, whether or not such a purchaser exists;^[1]

* * *

(emphasis added). 11 U.S.C. § 522(h) confers standing upon a debtor to invoke the trustee's § 545 avoiding powers, but only to the extent that the debtor could exempt the property involved.^[2]Perry v. U.S.A. (In re Perry), 90 B.R. 565 (Bankr.S.D.Fla. 1988); In re Ridgley, 81 B.R. 65 (Bankr.D. Or.1987); Matter of Driscoll, 57 B.R. 322, 14 C.B.C.2d 146, Bankr.L.Rep. ¶ 70,994 (Bankr.W.D.Wisc.1986).

However, 11 U.S.C. § 522(c)(2)(B) bestows added protection upon perfected tax liens and provides that exempt property remains liable for a tax lien, notice of which has been properly filed. We agree with those courts which have concluded that a debtor's limited standing to avoid statutory liens under 11 U.S.C. § 545 must be reconciled with the protection afforded perfected tax liens under 11 U.S.C. § 522(c)(2)(B). Like those courts, we hold that Congress did not intend to allow chapter 13 debtors to circumvent the effects of § 522(c)(2)(B) by invoking the trustee's avoiding power under § 545(2). See In re Perry, supra; In re Ridgley, supra; Matter of Driscoll, supra. Accordingly, we find that debtor lacks standing to file the instant motion to avoid the IRS lien under § 545(2) and we grant the United States' motion to dismiss.

An appropriate order will follow.

NOTES

[1] Instantly, debtor admits that the tax lien was properly perfected before the commencement of his case. Debtor argues, however, that when dealing with an IRS lien, the § 545(2) avoiding power is buttressed with the "superpriority" position afforded a purchaser of certain types of personal property under limited conditions pursuant to the Internal Revenue Code, see, 26 U.S.C. § 6323(b)(4), and that he may therefore invoke § 545(2) to avoid the IRS lien, notwithstanding its perfected status. See Coan v. U.S.A. (Matter of Coan), 72 B.R. 483 (Bankr.M.D.Fla. 1987); but see, In re Bates, 81 B.R. 63 (Bankr.D. Or.1987). We need not decide this issue as we find that debtor lacks standing to invoke the trustee's § 545(2) avoiding power in this case. However, we note our concurrence with footnote 2 of Bankruptcy Judge Thomas C. Britton's decision in Perry v. U.S.A. (In re Perry), 90 B.R. 565 (Bankr.S.D.Fla.1988) which suggests that while the "superpriority" position of a purchaser under 26 U.S.C. § 6323(b) might be consistent with the trustee's power in bankruptcy to avoid IRS liens for the benefit of creditors, it does not follow that Congress intended to confer this "superpriority" status upon a bankruptcy debtor to enable him to avoid IRS liens on exempt property for the sole benefit of himself.

[2] The United States argues that since § 545 authorizes only the trustee to avoid statutory liens, debtor lacks standing to invoke the trustee's § 545(2) avoiding power. We find this position overly simplistic since it overlooks the impact of 11 U.S.C. § 522(h) upon 11 U.S.C. § 545(2).