IS
A GOVERNMENTAL PENALTY SUBJECT TO DISCHARGE?
There
is no doubt that what is subject to discharge and what is not is
highly debated and litigated in bankruptcy court and in the academic
world. It is largely true that what Congress says and what it intends
are highly debated and litigated in not just bankruptcy related
matters but in all courts and academic circles. It only stands to
reason that discharge of debts, what is and is not subject to
discharge is a very important topic.
Chapter
7 Discharge and Chapter 13 discharge are two different animals. In a
recent Eastern District of Michigan adversary case Michigan
Unemployment Insurance Agency v Priscilla Andrews
(Adv # 15-04724, lead bankruptcy case # 15-) which has been appealed
by the Agency, Bankruptcy
Judge
Mark Randon, ruled that in a chapter 13 the Agency's quadruple damage
penalty was dischargeable in chapter 13 under 11 USC Sections 523
(a)(2)(A) and (a)(7).
The
debtor filed a chapter 13, and listed the debt, and the Agency filed
an adversary complaint to determine whether the debt was
dischargeable. The debtor filed her motion to dismiss the complaint.
The nature of the complaint centered around an alleged over payment by
the Agency saying that she intentionally failed to report wages. The
over payment was $6,897 and with penalty and interest ballooned to
over $34,000.
Under
chapter 13 all debt is discharged except those which fall under 11
USC Section 1328 (b), or what is unofficially known as a hardship
discharge where a motion is filed with the opportunity for a hearing
requesting a discharge, even though, certain aspects of the confirmed
plan have not been met. As long as the chapter 13 is not discharged
under (b) reasoned the Court, then the penalty and interest are
subject to the chapter 13 discharge under the “super discharge”
theory set for in Section 1328 (a)(2); the Court looked to this list
as exhaustive, and if Congress intended for this debt to be excepted
from discharge, it would have listed it.
Stay
tuned, as the appeal process unfolds.
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