Search

Where, as is generally the case, stock of a bankrupt company changes hands upon emergence, the company may undergo an "ownership change" and the use of its net operating losses (NOLs) may be subject to limitation under Section 382 of the Internal Revenue Code (Code). This article discusses the loss limitation rules, in general, and one of the special rules under Section 382 of the Code that applies to bankrupt companies, specifically.

Asbestos-related bankruptcies are prevalent for various reasons, including expense of traditional tort litigation, lack of either state or federal procedures to handle mass litigation, disputes between insurer and insured, and need for many companies' creditors and shareholders to achieve certainty with large current and contingent asbestos liabilities. Bankruptcy remains an attractive alternative and sometimes last resort because section 524(g) of the Bankruptcy Code provides a mechanism for companies faced with overwhelming asbestos liability to resolve current and future asbestos claims by channeling them to a trust, thereby allowing the effected company to avoid what could result in an inevitable liquidation. One necessary component of this channeling mechanism is section 524(g)(4)(B)(i) of the Bankruptcy Code which requires the Bankruptcy Court appoint "a legal representative for the purpose of protecting the rights of persons that might subsequently assert [asbestos claims] ..." 11 U.S.C. ' 524(g)(4)(B)(i), commonly referred to as a future claimants' representative (FCR).

Oftentimes, one of the largest commitments of a company is its ongoing funding obligations under its pension plan. Contribution obligations to a company-sponsored pension plan will often influence the timing of a financially troubled company's bankruptcy filing. An example of this is the Chapter 11 case of United Air Lines (United) and its affiliates. United viewed its obligations to make significant contributions to its pension plans as somewhat incompatible with its need to create a fiscally strong enterprise so as to effectively compete with low- cost carriers that do not have the same economic burdens.

Welcome to the most magical time of a retailer's year -- the Holiday Selling Season. It seems fitting as retailers enter this "make-it-or-break-it" period that we examine the Retail Debtors' Year in Review. After all, if Santa is kind to bankruptcy professionals, a few retailers currently holding on will go down the ... chimney. If 2004 provides any indication as to how some courts are approaching issues affecting retailers, various courts were anti-vendor in special relief; pro-contract party regarding assumption and assignment issues; and, when it comes to the asset-disposition auction process, it is anybody's game!

Recent rulings of importance to you and your practice.

Income tax refunds can involve substantial sums, and are a frequent source of disputes between divorcing spouses. Before advising a client regarding distribution of a joint tax refund, the matrimonial practitioner should review the applicable law. Federal tax law often dictates a different result from that of state equitable distribution or community property law, and the lawyer must know the difference. Liability for taxes does not necessarily confer a property interest. For example, although the parties to a joint federal income tax return are jointly and severally liable for the taxes payable for the year in question, and although the refund check is drawn to the order of the parties jointly, they do not necessarily have joint ownership rights to the tax refund.

The May 17, 2004 legalization of same-sex marriage in Massachusetts cleared a symbolic and practical barrier to marriage between persons of the same sex within the United States, as the state became the first in the U.S. to give legal sanction to marriage between persons without regard to gender. The formal legal acceptance of same-sex marriage by a single jurisdiction within the United States, however, merely exacerbated a problem that has been developing and evolving for some time: the growing legal uncertainty brought by the legalization of same-sex marriage and unions by certain jurisdictions on the one hand, and increasing efforts to prohibit them from being granted or recognized, in others.

The distinction between recourse to Chapter 11 protection as a legitimate means to maximize the value of a company's assets and/or to restructure its financially troubled yet otherwise viable operations, on the one hand, and clear bankruptcy abuse, on the other, is sometimes murky. A court called upon to make such a distinction is obliged to "get into the debtor's head" and investigate the board's motives for commencing a bankruptcy case and, in some cases, to decide whether the debtor's otherwise permissible use of the powerful provisions of federal bankruptcy law is impermissible because the debtor's motives are antithetical to the basic purposes of bankruptcy.

Recent rulings of importance to you and your practice.

Last month, we discussed the perceptible increase in the number of bankruptcy transactions taking place with the underlying arrangements being placed under seal. We discussed disclosure obligations, Section 107 and Bankruptcy Rule 9018, and commercial information, citing <i>Orion Pictures</i> as a leading case on the issue of what constitutes "confidential commercial information." Defining the limits of confidential commercial information can also be aided by reviewing cases decided both prior to and after <i>Orion Pictures</i>, where courts have refused to seal court records.