In re: | ) | |
) | ||
RODNEY C. KLEPZIG, | ) | Case No. 3-86-0535 |
) | Chapter 13 | |
Debtor. | ) | |
______________________________________ | ) |
At Anchorage in said District this 18th day of July, 1990.
The Debtor in this Chapter 13 proceeding has filed a motion seeking an order
determining the amount due the Internal Revenue Service and allowing him to
make final payment. The matter duly came before this Court for hearing on
Tuesday, July 10, 1990 and was argued by counsel for the Debtor as well as the
Internal Revenue Service.
Although the Debtor's plan is worded somewhat ambiguously, the
Debtor concedes that the plan requires payment of the Internal
Revenue Service's secured claim in full together with interest.
The Debtor alleges that he has in fact made virtually all necessary
plan payments but due to the Trustee's failure to timely
disburse funds, approximately $2,000.00 in interest has accrued
upon the IRS secured claim. The Debtor does not want to pay the
additional interest.
The Debtor has cited Matter of Irvin, 95 B.R. 1014
(Bankr. W.D. MO. 1989) in support of his position. The facts in
Irvin, however, are profoundly different than those at bar. In
Irvin the Debtor owed the IRS a pre-petition claim of $2,980.87.
1 ABR 32
After payment of this amount through the bankruptcy, the sum of
$2,887.05 was still outstanding due to long delays in disbursement
by the Trustee. Here the Debtor had a pre-petition secured tax
claim of $51,442.36. Only about $2,000.00 of the remaining liability
of $3,319.38 relates to interest due to late payments. This Court
is not confronted with the highly unusual circumstances that the
Irvin court faced. Moreover, Irvin is probably bad law within
the eighth circuit. Matter of Benson, 64 B.R. 128 (Bankr. W.D.Mo.
1986).
This Court disagrees with the Debtor's position regarding who
should monitor payments and bear the risk of late disbursal. The
Debtor voluntarily availed himself of the remedies of Chapter
13 of the Bankruptcy Code, and took certain risks. Those risks,
under the circumstances found here, clearly fall upon the Debtor.
He was in an excellent position to monitor actual disbursements
by the Trustee to insure their timeliness. To suggest that the
Internal Revenue Service, with the multitude of cases it confronts,
is somehow in a superior position to monitor the payments is not
realistic. The IRS cannot not be penalized because of late payments
by the Trustee. Finally, as the Debtor's confirmed Chapter
13 plan provides for a 100 percent payment plan to secured creditors,
he must pay them in full.
1 ABR 33
The Debtor's motion for final payment is granted; the amount due
the Internal Revenue Service is determined to be the approximate
sum of $3,319.38 as of May 1, 1990 together with accruing interest.
cy: | G. Oczkus |
R. Crowther | |
B. Franklin/U.S. Trustee's Office |