- 10 - the tax liability of a debtor”, rather than “concerning a debtor”. The dispute in the instant case ultimately concerns petitioner’s liability for unpaid employment taxes and not the Conways’ own tax liability. As an LLC, petitioner is a separate legal entity from the Conways.9 For Federal tax purposes, an LLC with more than one member generally is treated as a partnership unless the LLC elects to be treated as an association (i.e., a 9 Tennessee law provides that an LLC is generally dissolved upon the occurrence of any of various specified events, including the “Bankruptcy of any member”. Tenn. Code Ann. sec. 48-245- 101(a)(5)(G) (2002). Tennessee law also contemplates, however, that a dissolved LLC continues to exist for purposes of winding up its affairs and litigating claims against it. See, e.g., Tenn. Code Ann. sec. 48-245-502 (2002) (providing procedures to be followed by a dissolved LLC in handling claims against it as part of the winding-up process); Tenn. Code Ann. sec. 48-245-1201 (2002) (providing that after a dissolved LLC has been terminated, “any of its former managers, governors, or members may assert or defend, in the name of the LLC, any claim by or against the LLC”); cf. In re Midpoint Dev., LLC, 313 Bankr. 486 (Bankr. W.D. Okla. 2004) (holding that a dissolved Oklahoma LLC continued to exist for purposes of winding up its affairs and qualified as a “debtor” under the Bankruptcy Code). We conclude that even if petitioner was dissolved or terminated pursuant to Tennessee law consequent to the Conways’ filing bankruptcy petitions, petitioner continued to exist for purposes of challenging its liability for the employment taxes at issue and engaging in this litigation relating to that liability. Otherwise, the question would arise as to whether this case should be dismissed for lack of jurisdiction because of petitioner’s lack of capacity to engage in this litigation. See Rule 60. Respondent has not questioned petitioner’s capacity to engage in this litigation. For essentially the same reasons just discussed, on the basis of the present record we are satisfied that petitioner has the requisite capacity to engage in this litigation.Page: Previous 1 2 3 4 5 6 7 8 9 10 11 12 Next
Last modified: May 25, 2011