In re: CF&I FABRICATORS OF UTAH, INC., et al. Reorganized Debtors. PENSION BENEFIT GUARANTY CORPORATION, Appellant, v. CF&I FABRICATORS OF UTAH, INC.; COLORADO & UTAH LAND COMPANY; KANSAS METALS COMPANY; ALBUQUERQUE METALS COMPANY; PUEBLO METALS COMPANY; DENVER METALS COMPANY; PUEBLO RAILROAD SERVICE COMPANY; CF&I FABRICATORS OF COLORADO, INC.; CF&I STEEL CORPORATION; COLORADO & WYOMING RAILWAY COMPANY; UNSECURED CREDITORS COMMITTEE; UNITED STEELWORKERS OF AMERICA AFL-CIO-CLC; WILLIAM J. WESTMARK, Trustee of the Colorado & Wyoming Railway Company, Appellees.
No. 97-4121
UNITED STATES COURT OF APPEALS TENTH CIRCUIT
AUG 3 1998
PUBLISH. PATRICK FISHER, Clerk.
In re: CF&I FABRICATORS OF UTAH, INC., et al. Reorganized Debtors. PENSION BENEFIT GUARANTY CORPORATION, Appellant, v. CF&I FABRICATORS OF UTAH, INC.; COLORADO & UTAH LAND COMPANY; KANSAS METALS COMPANY; ALBUQUERQUE METALS COMPANY; PUEBLO METALS COMPANY; DENVER METALS COMPANY; PUEBLO RAILROAD SERVICE COMPANY; CF&I FABRICATORS OF COLORADO, INC.; COLORADO & WYOMING RAILWAY COMPANY, Appellees.
No. 97-4122
UNITED STATES COURT OF APPEALS TENTH CIRCUIT
AUG 3 1998
(D.C. Nos. 93-CV-744-B and 96-CV-202-B)
Susan E. Birenbaum (James J. Keightley, General Counsel; William G. Beyer, Deputy General Counsel; Israel Goldowitz, Assistant General Counsel; Garth D. Wilson, Attorney; Nathaniel Rayle, Attorney; and Kenneth J. Cooper, Attorney, Pension Benefit Guaranty Corporation, Office of the General Counsel, Washington, D.C.; and Charles G. Cole, Steptoe & Johnson, L.L.P., Washington, D.C., with her on the briefs), Assistant General Counsel, Pension Benefit Guaranty Corporation, Washington, D.C., for Appellant.
Richard M. Seltzer (Ann E. O‘Shea, Richard A. Brook, and Mimi Hart, Cohen, Weiss and Simon, New York, New York; Carl B. Frankel and Paul Whitehead, United Steelworkers of America AFL-CIO-CLC, Pittsburgh, Pennsylvania, with him on the briefs), Cohen, Weiss and Simon, New York, New York, for Appellee United Steelworkers of America AFL-CIO-CLC.
Before PORFILIO, MCKAY, and TACHA, Circuit Judges.
PORFILIO, Circuit Judge.
OPINION
In this appeal we are asked to determine whether claims for a Chapter 11 debtor‘s minimum contributions to an employee pension plan are entitled to tax or administrative priority in bankruptcy. In addition, we must determine which valuation method should be used to calculate the present value of unfunded benefit liabilities owed by CF&I Steel Corporation and its subsidiaries (CF&I), Appellees-Debtors in this case.
A. Background
Prior to the economic events which eventually led CF&I into Chapter 11, it sponsored a defined benefit pension plan subject to the termination provisions of Title IV of ERISA. An employer‘s choice to initiate such a pension plan is totally voluntary; however, once that plan is established, the employer must meet the
CF&I met its funding obligations until a decline in economic conditions of the American steel industry left it unable to make minimum funding contributions of approximately $14 million. This state of affairs led CF&I into filing a Petition for Relief under Chapter 11 of the Bankruptcy Code.
CF&I continued to operate its businesses as debtor-in-possession and made substantial contributions to non-PBGC insured employee benefit plans providing health and life insurance. Although CF&I made no contributions to its pension plan, it did not seek voluntary termination. Finally, when the assets of the estate dwindled, PBGC terminated the plan and became its statutory trustee. See
Subsequently, CF&I achieved confirmation of a negotiated plan of reorganization which, among other provisions, set aside a sum of money as an “Appeal Fund” preserving PBGC‘s right to pursue its claims against that fund. PBGC has agreed to limit its recovery, if any, to the amount set aside.
The bankruptcy court held PBGC was entitled to an administrative priority claim for the post-petition component of its unpaid contributions claim attributable to post-petition services of employees. However, the court denied tax priority or administrative priority for amounts other than these post-petition costs. The district court affirmed these decisions.
However, the district court reversed the bankruptcy court‘s holding that PBGC‘s unfunded benefits claim, which must be reduced to present value to be allowed, should be valued in accordance with PBGC‘s regulatory system and not by Bankruptcy Code standards. Finding an inexorable conflict between ERISA and the Bankruptcy Code, the court held the Bankruptcy Code must dominate. Hence, it concluded, “the actuarial present value of guaranteed benefits in a reorganization context [must be] determined according to bankruptcy law.” On remand, the bankruptcy court applied the “prudent-investor” valuation method and
On appeal to this court, PBGC contends the district court erred by denying tax priority to its first claim based on unpaid past plan contributions in excess of $1 million and administrative priority to its entire claim for unpaid plan contributions. It also contends the court erred by refusing to use PBGC‘s regulatory methodology to determine the present value of the unfunded benefits claim.
B. Tax Priority
PBGC argues because of specific provisions in ERISA, we should conclude Congress expressly directed that CF&I‘s unpaid minimum funding contributions in excess of $1 million must be treated as taxes and accorded tax priority under the Bankruptcy Code. The district court‘s denial of tax priority is a conclusion of law which we review de novo. Broitman v. Kirkland (In re Kirkland), 86 F.3d 172, 174 (10th Cir. 1996).
PBGC‘s argument is grounded upon
(B) Period of lien. -- The lien imposed by paragraph (1) shall arise on the 60th day following the due date for the required installment ....
(C) Certain rules to apply -- Any amount with respect to which a lien is imposed under paragraph (1) shall be treated as taxes due and owing the United States and rules similar to the rules of subsections (c), (d), and (e) of section 4068 of the Employee Retirement Income Security Act of 1974 shall apply with respect to a lien imposed by subsection (a) and the amount with respect to such lien.
The first question we must resolve, however, is to what extent these ERISA provisions are applicable in bankruptcy. To resolve the question, both parties point to United States v. Reorganized CF&I Fabricators, Inc. (In re CF&I Fabricators (I)), 518 U.S. 213, 219 (1996), where the Court examined whether an “exaction ought to be treated as a tax [in bankruptcy] ... without some ... dispositive direction [from Congress].” Id. at 219. At issue was an exaction under the IRC of 10% on the amount of the accumulated funding deficiency of CF&I‘s Plan for which the IRS asserted a tax priority claim.1 Although the IRC
To determine whether Congress intended the exactions be given tax treatment in the bankruptcy context, the Court first looked for some “explicit connector between” the IRC provision and the Bankruptcy Code. Finding no link, the Court “looked behind the label placed on the exaction” and conducted a “functional examination” of the provision in question to determine whether it was “‘a pecuniary burden laid upon individuals or property for the purpose of supporting the Government.‘” Id. (quoting New Jersey v. Anderson, 203 U.S. 483, 492 (1906)).
CF&I argues there is no “explicit connector” between
In response, the PBGC insists there is a connection between
Reading these provisions together, we can see at least a tangential connection between
As we read the Court‘s analysis, the key to whether a statutory provision is “explicit” in this context is whether the Bankruptcy Code adopts and makes specific reference to the provisions of the other law. In re CF&I Fabricators (I), 518 U.S. at 220. In this case, even though ERISA tangentially refers to “a case under Title 11 or in insolvency proceedings,” the defect in the statutory construct found in In re CF&I Fabricators (I) is still present. That is, Congress made no specific reference in
This conclusion takes us into the functional analysis initiated in In re CF&I Fabricators (I). The quest begins with City of New York v. Feiring, 313 U.S. 283, 285 (1941), in which the Court instructed tax priority in bankruptcy “extends to those pecuniary burdens laid upon individuals or their property, regardless of their consent, for the purpose of defraying the expenses of government or of undertakings authorized by it.” Id. at 285 (emphasis added). As we have noted recently in United Mine Workers 1992 Benefit Plan v. Rushton (In re Sunnyside Coal Co.), No. 97-1276, 1998 WL 380966 (10th Cir. Colo. July 9, 1998), ___ F.3d ___ (10th Cir. 1998), this analysis was sharpened in LTV Steel Co. v. Shalala (In re Chateaugay Corp.), 53 F.3d 478 (2d Cir. 1995), which followed the lead of the Ninth Circuit2 in setting forth four factors for determining whether contributions required of a debtor are entitled to tax priority in bankruptcy.3 If the contributions are:
- An involuntary pecuniary burden, regardless of name, laid upon the individuals or property;
- Imposed by, or under authority of the legislature;
For public purposes, including the purposes of defraying expenses of government or undertakings authorized by it; - Under the police or taxing power of the state;
the contributions have the functionality of a tax and claims for those contributions are entitled to tax priority. This analysis disposes quickly of PBGC‘s basic contention.
We believe the ERISA contribution fails the third element of the Chateaugay test. PBGC admits the contributions are directed to and for the protection of individual benefit plans. Thus, the object of the contributions is not to defray the expenses of the government or any governmental undertaking, but rather, is to finance a private obligation. Although mandated by statute, there is simply no credible argument that the required payments fund either a function of the United States or any of its undertakings. It thus follows PBGC‘s claim for unpaid minimum contributions is not to be accorded tax priority.4
PBGC next argues if its minimum contributions claim does not qualify as a priority tax claim, it is still entitled to a priority administrative claim because the contributions were “actual, necessary costs and expenses of preserving the estate ... for services rendered after the commencement of the case.”
In Reading, a case under the former Bankruptcy Act, the Court granted administrative priority to a claim for post-petition “damages resulting from the negligence of the receiver.” Later cases have expanded this analysis. See, e.g., Cumberland Farms, Inc. v. Florida Dep‘t of Envtl. Protection, 116 F.3d 16 (1st Cir. 1997) (fine for violation of financial responsibility provision of environmental laws); Alabama Surface Mining Comm‘n v. N.P. Mining Co. (In re N.P. Mining Co.), 963 F.2d 1449 (11th Cir. 1992) (civil penalties for violations of the Alabama Surface Mining Act). At a minimum, these cases demonstrate a judicial willingness to extend administrative claim status to tortious damages incurred post-petition and statutory penalties in the environmental law arena incurred post-petition. For PBGC‘s argument to succeed, therefore, the minimum contributions would have to be statutory and post-petition.
CF&I responds this contention overlooks the fact the CF&I pension plan was written, collectively bargained, relied upon, and was part of the consideration for the work performed by its beneficiaries in the decades before its bankruptcy. Moreover, CF&I reminds, the Bankruptcy Code itself recognizes contributions to pension plans are compensation for services and, thus, by definition are contractual in nature. See, e.g.,
Curiously, PBGC‘s own Reply Brief boosts CF&I‘s argument in stating:
In this case CF&I and the USWA bargained for pension benefits that the company later found it could not afford. These parties together could have agreed, either before or after bankruptcy, to terminate the Pension Plan (“Plan“) voluntarily before contributions went unpaid and the funding gap widened.
It is evident the plan and the obligations arising from it were a matter of contractual bargaining and agreement between an employer and its employees. The fact a statute provides the means by which they may terminate their agreement does not trump the contractual nature of the benefits plan.
Even if we were to assume the contributions were statutory in nature, the Reading line of cases only allows administrative priority for post-petition expenses. See In re Sunarhauserman, Inc., 126 F.3d 811, 817 (6th Cir. 1997) (“To be sure, the Reading rationale allows administrative expense priority in the absence of a post-petition benefit to the estate. However, even in Reading and cases following it, the debt at issue arose post-petition.“). Hence, the issue devolves to whether the minimum contributions are pre- or post-petition debts.
CF&I argues the claims are “derived from pension credits under a pension plan, all of which were earned by pre-petition consideration consisting of the labor of the pension plan‘s participants who did the work that earned these pensions.” This position rests on the principle that liabilities are not incurred post-petition simply because they become due post-petition. See, e.g., Trustees of Amalgamated Ins. Fund v. McFarlin‘s, Inc., 789 F.2d 98, 101 (2d Cir. 1986);
In contrast, PBGC points to the Coal Industry Retiree Health Benefit Act of 1992,
[T]here is no doubt that the charges incurred by LTV Steel not only are a result of its association with previous collective bargaining agreements, but also are a direct consequence of its continued corporate existence; the Coal Act only imposes obligations on signatories which are still “in business.” Thus, the charges stem from LTV Steel‘s continued operation in Chapter 11, and as such are costs of doing business best classified as “administrative expenses” within the Bankruptcy Code scheme.
Id. at 422 (footnote omitted).
We do not find the Coal Act cases helpful here. The nature of the Coal Act claims was fundamentally different from the claim presented in this case because
Pointedly, asserting a separate interest from that of the Debtors, Appellee United Steel Workers of America (USWA)6 suggests when Congress wanted to give administrative priority to claims, it did so by amending the Bankruptcy Code. In particular, USWA cites
D. Valuation of the Unfunded Benefits Claim
We turn now to the problem of valuing the claim for liabilities that accrued for plan benefits when PBGC terminated the plan. Inasmuch as those liabilities are
To insure the relative equality of payment between claims that mature in the future and claims that can be paid on the date of bankruptcy, the Bankruptcy Code mandates that all claims for future payment must be reduced to present value.
The first,
[L]iability to [PBGC] shall be the total amount of the unfunded benefit liabilities (as of the termination date) to all participants and beneficiaries under the plan ....
The second,
the excess (if any) of --
(A) the value of the benefit liabilities under the plan (determined as of such date on the basis of assumptions prescribed by [PBGC] for purposes of section 1344 of this title), over
(B) the current value (as of such date) of the assets of the plan.
PBGC maintains this combination of statutes represents an express delegation of rule-making power to PBGC to determine the present value of its claims for terminated plans. PBGC argues, “Congress mandated that the assumptions used to determine the present value of benefit liabilities under terminated pension plans be the same assumptions used for purposes of valuing a plan‘s benefits under
PBGC relies upon Batterton v. Francis, 432 U.S. 416 (1977), and Chevron v. NRDC, 467 U.S. 837 (1984), to remind us when Congress delegates rule-making power, the rule enacted has the force of law. In addition, it maintains the district court should have applied ERISA as an “external law” to determine the validity and amount of the claim in bankruptcy. See Landsing Diversified Properties -- II v. First Nat‘l Bank & Trust Co. (In re Western Real Estate Fund, Inc.), 922 F.2d 592, 595-97 (10th Cir. 1990).
Second,
Nothing in the ERISA sections relied upon by PBGC implies a carry-over into the realm of bankruptcy to allow PBGC to set its own valuation methodology. Even though that methodology was adopted in the exercise of PBGC‘s administrative authority, we have no doubt of its inapplicability in the world of bankruptcy. The district court did not err in requiring the bankruptcy court to
The judgment of the district court is AFFIRMED.
Notes
Initial tax.–For each taxable year of an employer who maintains a plan to which section 412 applies, there is hereby imposed a tax of 10 percent (5 percent in the case of a multiemployer plan) on the amount of the accumulated funding deficiency under the plan, determined as of the end of the plan year ending with or within such taxable year.