Why Have Chapter 11 Bankruptcies Failed So Miserably? A Reappraisal of Congressional Attempts to Protect a Corporation\u27s Net Operating Losses After Bankruptcy

This Article will first outline the history of judicial and statutory limitations on the free transferability of net operating losses, highlighting congressional attempts to afford more favorable treatment to troubled corporations reorganizing in Title 11 proceedings. It will then examine the operation of section 382 of the 1986 Code, again focusing on those provisions designed to assist in the successful reorganization of these corporations, and will demonstrate the wholesale inability of these provisions to preserve the net operating losses of troubled corporations. Finally, the Article will propose an amendment to section 382 that would increase the likelihood that corporations will be allowed to retain their net operating losses following bankruptcy. This amendment would improve the success rate of Chapter 11 bankruptcies, effectuate the legislative policies underlying section 382, and reduce the devastating economic impact of corporate liquidations

Including Retirement Benefits in a Debtor\u27s Bankruptcy Estate: A Proposal for Harmonizing ERISA and the Bankruptcy Code

This Article first examines the conflicting policies of ERISA and the Bankruptcy Code. It then explores how the various courts have attempted to reconcile these policies when faced with the issue of whether a debtor\u27s interest in retirement plan assets should be available for distribution to creditors in bankruptcy. In analyzing the relevant case law, the Article examines cases addressing the exclusion issue (whether pension plans should be excluded from the bankruptcy estate entirely). It also evaluates cases addressing the exemption issue (whether plan assets, once included in the bankruptcy estate, can be exempted out of the estate by the debtor as part of his fresh start). Finally, the Article proposes extensive amendments to the relevant provisions of both ERISA and the Bankruptcy Code in an effort to strike a balance between the competing objectives of the two statutes and resolve the conflict that has emerged among the circuits

A Reappraisal of Attorneys\u27 Fees in Bankruptcy

This Article attempts to create a new method for approaching the priority of attorneys’ fees in bankruptcy. It criticizes Lamie for not going far enough toward resolving the attorneys’ fees issue, and proposes a statutory amendment to the Bankruptcy Code that will harmonize the interests of both creditors and debtors who are seeking bankruptcy protection during these difficult economic times

Toward Adding Further Complexity to the Internal Revenue Code: A New Paradigm for the Deductibility of Capital Losses

This article examines problems inherent in the current loss limitation system, arguing that it is ill-equipped to meet parallelism concerns and that cherrypicking is not a problem that a loss limitation scheme should address. The article also argues that the current system is both fundamentally unfair to taxpayers and promotes economic inefficiency in the marketplace. It proposes an alternative system for the tax treatment of capital losses that would allow such losses to offset all types of income, but only up to the tax rate that would have been imposed had the losses instead been capital gains. The article concludes that adopting this new paradigm for the deductibility of capital losses would provide a fairer and more economically efficient solution to the problems giving rise to the need for loss limitations that have plagued legislators since the inception of the income tax

Partnership Taxation: A Deceased Partner\u27s Final Year

One significant and unresolved partnership taxation problem is the taxation of a deceased partner\u27s final year. In a recent case of first impression, Estate of Hesse v. Commissioner, the Tax Court held that the widow of a deceased partner could not include his share of partnership losses incurred during the year of his death on their final joint income tax return. Consequently, the widow lost thousands of dollars in tax refunds because the loss deductions could not offset prior taxable income. The Tax Court believed the result was illogical and unfair, but nevertheless found that the Code required the decedent\u27s executor to report the partnership losses on the income tax return of the decedent\u27s estate. This note analyzes the tax treatment of a deceased partner\u27s final year, including the key Code provision, section 706. After surveying the history of the taxation of a deceased partner\u27s final year, the note examines the Hesse case and explores three possible strategies for circumventing the Hesse problem under the current Code

Reinvigorating Chapter 11: The Case for Reinstating the Stock-For-Debt Exception in Bankruptcy

This Article suggests that such a proposal will harmonize the bankruptcy policy of rehabilitating financially distressed corporations with the tax policy of ensuring that true economic income is subject to federal income taxation.27 Parts II and III of this Article will trace the common law evolution of the stock-for-debt exception and its statutory codification in 1980, with particular emphasis on the stated policy justifications for the exception. Part IV will then examine the history of the repeal of the stock-for-debt exception, demonstrating that the repeal was the result of hasty political maneuvering rather than reasoned legislative decision-making. In Part V, the Article will first explore the exception\u27s critical role in realizing the fundamental rehabilitative goals of chapter 11 bankruptcy and will justify the exception under both bankruptcy and tax theory. It will propose the reinstatement of the stock-for-debt exception for insolvent corporations and those in bankruptcy, and will resolve three tax issues relating to the exception that remained unanswered at the time that the exception was repealed. The Article will conclude that reinstating the stock-for-debt exception will improve the success rate of chapter 11 bankruptcy reorganizations and reduce the devastating economic impact of corporate liquidations

Crumbs for Oliver Twist: Resolving the Conflict Between Tax and Support Claims in Bankruptcy

This article is premised on the assumption that the congressional goal of preferring support claims over federal income tax claims is indeed a laudable one, based on three interrelated policy justifications. First, support claimants are unable to spread their risk of loss like the government is able to do by raising tax rates or increasing tax revenue from other sources. As three prominent bankruptcy scholars noted in their recent study of consumer bankruptcy entitled The Fragile Middle Class: Americans in Debt

Forward: Symposium on Interdisciplinary Perspectives on Bankruptcy Reform

In 2003, over 1.6 million consumers filed for bankruptcy protection, surpassing the previous record of 1.5 million bankruptcy filings set just one year earlier. In an effort to reverse the spiraling upward trend of consumer bankruptcies, and to prevent abusive debtors from using the bankruptcy system to avoid paying their debts, in April, 2005, Congress voted overwhelmingly in favor of passing the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 (BAPCPA). Widely heralded as the most sweeping bankruptcy reform legislation in over a quarter of a century, BAPCPA was designed in large part to force debtors with the ability to pay their debts out of Chapter 7 liquidation bankruptcy and into Chapter 13, the Bankruptcy Code\u27s rehabilitation provision. In addition, the Act sought to prevent certain abusive bankruptcy practices, such as the unfettered use of serial filings and debtors\u27 abuse of Chapter 13\u27s cramdown provisions to strip down secured debts incurred shortly before filing for bankruptcy protection

Continued Professional Competence and Portfolios

It is traditionally assumed that licensure of healthcare professionals means that they are minimally competent. Many nursing specialty organizations offer examinations and other processes for certification, suggesting that certification is associated with continued competency. Can standardized examination for certification and continuing education for recertification ensure continued competency? Continuing education and testing provide a limited picture of an individual\u27s knowledge and/or skill acquisition in a limited area at one point in time. However, portfolios promote critical thinking, self-assessment, and individual accountability. A portfolio is a portable mechanism for evaluating competencies that may otherwise be difficult to assess. This article summarizes some of the literature addressing portfolios, including aspects of portfolio development process, the value of portfolios versus continuing education for competency assessment, evidence associated with portfolio usage, and suggestions for organizing nursing portfolios

A framework for human microbiome research

A variety of microbial communities and their genes (the microbiome) exist throughout the human body, with fundamental roles in human health and disease. The National Institutes of Health (NIH)-funded Human Microbiome Project Consortium has established a population-scale framework to develop metagenomic protocols, resulting in a broad range of quality-controlled resources and data including standardized methods for creating, processing and interpreting distinct types of high-throughput metagenomic data available to the scientific community. Here we present resources from a population of 242 healthy adults sampled at 15 or 18 body sites up to three times, which have generated 5,177 microbial taxonomic profiles from 16S ribosomal RNA genes and over 3.5 terabases of metagenomic sequence so far. In parallel, approximately 800 reference strains isolated from the human body have been sequenced. Collectively, these data represent the largest resource describing the abundance and variety of the human microbiome, while providing a framework for current and future studies