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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.
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Last modified: May 25, 2011