Richard Allan and Corinne Lucille Balser - Page 12




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          Sur. Co. v. LTV Steel Co. (In re Chateaugay Corp.), 94 F.3d 772,            
          781-782 (2d Cir. 1996); United States v. Jones, 230 Bankr. 875,             
          878 (M.D. Ala. 1999).  Mutuality means that the creditor and the            
          debtor must be mutually indebted in order to exercise the right             
          of offset.  11 U.S.C. sec. 553; see In re O.P.M. Leasing Servs.,            
          Inc., 68 Bankr. 979, 985-986 (Bankr. S.D.N.Y. 1987).  “The                  
          mutuality requirement is satisfied if the debts at issue are                
          ‘owing between the same parties, in the same right or capacity,             
          and ... [are] of the same kind and quality.’”  In re O.P.M.                 
          Leasing Servs., Inc., supra at 986 (quoting In re Braniff                   
          Airways, Inc., 42 Bankr. 443, 449 (Bankr. N.D. Tex. 1984)).                 
          Accordingly, obligations owing between a creditor and a                     
          prepetition debtor may not be offset against obligations owing              
          between that same creditor and the debtor’s estate since the                
          requisite mutuality of obligations is absent.  Id.                          
               The 1997 overpayment is a postpetition debt that the IRS               
          owed to petitioners’ bankruptcy estate.  The tax liabilities for            
          1992 and 1993 are prepetition debts that petitioners owed to the            
          IRS.  Therefore, respondent is correct that the IRS lacked the              
          requisite mutuality to offset the refund for 1997 against the               
          1992 and 1993 taxes of petitioners.  The tax liability for 1996,            
          however, is a postpetition debt.  Respondent could have exercised           
          his right to offset but chose not to do so. Therefore,                      








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