Consumer Bankruptcy Journal Fall 2016 - Page 28

CLAWBACK PERIODS (f) An action or proceeding under this section may not be commenced after the earlier ofC (1) one year after the avoidance of the transfer on account of which recovery under this section is sought; or (2) the time the case is closed or dismissed. 9 . This is a unique isue which will not be addressed herein. 10 . See 11 U.S.C. ‘ 544(b)(1). 11 . One court wrote, ASection 544(b) of the Bankruptcy Code provides that Aa trustee may avoid any transfer of an interest of the debtor in property . . . that is voidable under applicable [state] law by a creditor.@ Schmidt v. Domit (In re Ocean Tower LP), 2014 Bankr. LEXIS 4848 (Bankr. S.D. Tex. Nov. 25, 2014) Notice how the word Astate@ is plugged in before Aapplicable@ when quoting section 544(b). Many jurists interpreting this statute may have reactively included the term Astate@ even though the clause clearly is devoid of such reductive language. 12 . See 11 U.S.C. 548. 13 . Some states have greater than four-year limitations for fraudulent transfers. 14 . ‘ 6502. Collection after assessment. (a) Length of period. Where the assessment of any tax imposed by this title has been made within the period of limitation properly applicable thereto, such tax may be collected by levy or by a proceeding in court, but only if the levy is made or the proceeding begun (1) within 10 years after the assessment of the tax, or (2) if B (A) there is an installment agreement between the taxpayer and the Secretary, prior to the date which is 90 days after the expiration of any period for collection agreed upon in writing by the Secretary and the taxpayer at the time the installment agreement was entered into; or (B) there is a release of levy under section 6343 after such 10‑year period, prior to the expiration of any period for collection agreed upon in writing by the Secretary and the taxpayer before such release 15 . See 28 U.S.C. ‘ 3306. 16 . 28 U.S.C. ‘ 3306 is specifically entitled ARemedies of the United States.@ 17 . See 28 U.S.C. ‘ 3306(a)(1). 18 . MC Asset Recovery, LLC v Southern Co., 2008 U.S. Dist. LEXIS 123608, 2008 W.L. 8832805 (N.D. Ga. 2008) 19 . The Bankruptcy Code is title 11 or Title XI.. 20 . 28 U.S.C. ‘ 3003(c)(1) 21 . See In re Mirant Corp., 675 F.3d 530, 535 (5th Cir. 2012) 28 CONSUMER BANKRUPTCY JOURNAL Fall 2016 National Association of Consumer Bankruptcy Attorneys