Illinois Department of Revenue v. Hanmi Bank ( 2018 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 17-1575
ILLINOIS DEPARTMENT OF REVENUE,
Appellant,
v.
HANMI BANK and EUGENE CRANE, TRUSTEE,
Appellees.
____________________
Appeal from the United States Bankruptcy Court for the
Northern District of Illinois, Eastern Division.
No. 12-49658 — Timothy A. Barnes, Bankruptcy Judge.
____________________
No. 17-2004
ILLINOIS DEPARTMENT OF REVENUE,
Appellant,
v.
FIRST COMMUNITY FINANCIAL BANK,
Appellee.
____________________
Appeal from the United States Bankruptcy Court for the
Northern District of Illinois, Eastern Division.
No. 15-05384 — A. Benjamin Goldgar, Bankruptcy Judge.
2 Nos. 17-1575 & 17-2004
____________________
ARGUED DECEMBER 1, 2017 — DECIDED JULY 9, 2018
____________________
Before BAUER, FLAUM, and ROVNER, Circuit Judges.
ROVNER, Circuit Judge. The bankrupt businesses in both of
these consolidated appeals had debts that far exceeded the
value of their assets. The bankruptcy court authorized the sale
of the firms’ principal assets (several gasoline service stations
and a movie theater and café), and those sales qualified as
bulk sales under Illinois statutes we shall refer to as the Bulk
Sales Provisions. Among other things, the Bulk Sales Provi-
sions give the Illinois Department of Revenue (“IDOR”) the
right to pursue the purchaser in a bulk sale for state taxes
owed by the seller. However, in order to facilitate sale of the
debtors’ properties, the bankruptcy court, pursuant to section
363(f) of the Bankruptcy Code, allowed the sales to proceed
free and clear of the interests in those properties held by any
entity other than the bankruptcy estates, including IDOR’s in-
terest under the Bulk Sales Provisions. 11 U.S.C. § 363(f). This
meant that IDOR lost its right to impose successor liability on
the purchasers for the taxes owed by the sellers. Pursuant to
section 363(e) of the Code, a party whose interest has been re-
moved from property in this way is entitled to “adequate pro-
tection,” which typically takes the form of a payment from the
sale proceeds to compensate the party for the decrease in
value of its interest. See id. §§ 361, 363; Precision Indus., Inc. v.
Qualitech Steel SBQ, LLC, 327 F.3d 537, 548 (7th Cir. 2003). The
bankruptcy court in each case below agreed or assumed that
IDOR was entitled to adequate protection for its interest un-
der section 363. But the court also went on to conclude that
Nos. 17-1575 & 17-2004 3
because the sale proceeds were insufficient to satisfy the
claims of the senior-most creditors (the banks that held the
mortgages on the properties), IDOR was entitled to no portion
of the sale proceeds; to grant IDOR any share in those pro-
ceeds would be to impermissibly allow it to “jump the queue”
of creditors. And because there were no other assets available
from which to compensate junior creditors like IDOR, IDOR
was left with nothing.
IDOR contends that the bankruptcy court’s disposition
fails to account for its authority, which other creditors did not
enjoy, to pursue not only the debtor but the purchaser of the
debtors’ property—personally—for unpaid taxes. When the
bankruptcy court authorized the sale of the debtors’ proper-
ties in these cases free and clear of IDOR’s interest, it made the
properties much more attractive to prospective purchasers
than they otherwise would have been. Consequently, in
IDOR’s view, the final sale price for the properties necessarily
included consideration for the removal of IDOR’s interest,
and it is entitled to a share of the sale proceeds pursuant to
sections 361 and 363(e) to compensate it accordingly.
For the reasons that follow, we affirm the bankruptcy
court’s judgments. We agree with IDOR that the Bulk Sales
Provisions give it a powerful means of securing payment for
delinquent taxes that most other creditors lack, and that re-
moval of IDOR’s interest likely increased the price bidders
were willing to pay for the debtors’ properties in these cases.
But assuming that IDOR’s interest is cognizable under section
363, it has not given us a realistic assessment of the value of
its interest. IDOR’s position in these appeals is that it is enti-
tled to a share of the sale proceeds equal to 100 percent of the
taxes it was authorized to collect from the purchasers, given
4 Nos. 17-1575 & 17-2004
that it was forced to give up its right to pursue the purchasers
for those taxes. As we explain, however, we are skeptical of
the notion that IDOR necessarily would have recovered 100
percent of the tax delinquency from an informed purchaser;
and although IDOR might have been able to strike a deal with
the purchaser and the seller’s senior creditors giving it some
lesser payment on the outstanding taxes, IDOR has offered no
evidence to establish what its potential recovery might have
been. In short, its claims were properly denied for want of ev-
idence enabling the bankruptcy court to assign a reasonable
value to its interest for purposes of section 363(e).
I.
These appeals involve two different sets of debtors. The
Elk Grove debtors owned and operated five BP gas stations in
Elk Grove Village and other Chicago suburbs. Hanmi Bank,
formerly known as United Central Bank (hereinafter, “UCB”),
held mortgages on the real properties along with security in-
terests in the personal property at each location. The Naper-
ville debtor operated a cinema and adjoining café in the Chi-
cago suburb of Naperville. First Community Financial Bank
(“First Community”) held the mortgage on these properties.
The debtors initially sought relief under Chapter 11 of the
Bankruptcy Code. In each instance, the debtors’ outstanding
liabilities substantially exceeded the value of their assets. The
Elk Grove debtors owed north of $14 million to UCB, and the
Naperville debtor owed just under $4 million to First Com-
munity. Both debtors also owed substantial Illinois taxes to
IDOR: the Elk Grove debtors owed the state more than $1.8
million in sales, employee withholding, and motor fuel taxes
(approximately $1.38 million of which was secured by liens
on the debtors’ properties) and the Naperville debtor owed
Nos. 17-1575 & 17-2004 5
nearly $600,000 in sales and withholding taxes (none of which
was secured by liens). In the Elk Grove proceeding, a trustee
was appointed at the request of the creditors.
The Elk Grove trustee and the Naperville debtor both
sought the bankruptcy court’s approval pursuant to section
363(b) and (f) of the Bankruptcy Code to sell the debtors’ prin-
cipal assets—the gas stations and the theater/café—free and
clear of all liens, claims, encumbrances, and interests held by
entities other than the estate. In each instance, IDOR con-
tended that to the extent the court deemed its right to impose
successor tax liability on the purchaser of the property an “in-
terest” that could be extinguished pursuant to section 363(f),
the court should set aside a portion of the sale proceeds suffi-
cient to satisfy the outstanding tax obligations as “adequate
protection” for IDOR’s interest pursuant to section 363(e), re-
gardless of the fact that IDOR’s claims against the debtor were
junior to those of the banks. In both cases, that request was
denied.
In the Elk Grove case, Judge Barnes denied the set-aside
request but directed the trustee to hold the proceeds of the
sale subject to a further order of the court, so that IDOR’s
right, if any, to a share of the sale proceeds could be assessed.
After the sale of the gas stations closed, yielding net proceeds
of roughly $5.23 million, UCB asked that its secured claim
against the estate be allowed and that the full proceeds of the
sale be turned over to it (recall that the debtors owed UCB
more than $14 million in total). IDOR objected to UCB’s re-
quest, insofar as it sought the turnover of all proceeds to UCB,
and asked that a portion of the proceeds equal to the amount
of unpaid taxes that IDOR could have collected from the pur-
chaser pursuant to the Bulk Sales Provisions—roughly $1.53
6 Nos. 17-1575 & 17-2004
million—be turned over to IDOR first, with the remainder go-
ing to UCB. 1 IDOR contended that its interest in the sale pro-
ceeds was effectively superior to UCB’s in view of the fact that
IDOR had the authority—before the bankruptcy court al-
lowed the sale free and clear of all interests—to hold the pur-
chaser of the property personally liable for the unpaid taxes.
In IDOR’s view, because it was entitled to “adequate protec-
tion” for its interest pursuant to section 363(e), it was owed
full recompense for the taxes it was owed.
Judge Barnes allowed UCB’s claim in full and denied the
relief that IDOR requested. In re Elk Grove Vill. Petroleum, 510
B.R. 594 (Bankr. N.D. Ill. 2014) (“Elk Grove I”). He determined
that UCB had a secured claim that exceeded by some $8 mil-
lion the amount of the sale proceeds; that IDOR had a par-
tially secured but junior claim of $1.88 million (secured by
liens to the extent of $1.38 million); that IDOR’s successor lia-
bility claims under the Bulk Sales Provisions constituted an
“interest” that could be extinguished in the sale of the gas sta-
tions pursuant to section 363(f); but that IDOR’s interest had
not decreased in value by virtue of the sale, such that it would
be entitled to adequate protection under section 363(e), be-
cause that interest was inferior to UCB’s security interest both
before and after the sale. Id. at 603–05. Judge Barnes acknowl-
edged that, by virtue of the court’s free-and-clear order under
1 The figure of $1.53 million to which IDOR claimed it was entitled was
less than the total of $1.88 million in unpaid taxes it was owed by the Elk
Grove debtors. As we discuss below, the Bulk Sales Provisions cap a pur-
chaser’s liability for the unpaid taxes at the reasonable value of the prop-
erty, which would normally be reflected in the sales price of the property.
The taxes owed by one of the five gas stations substantially exceeded the
sales price for that station. Consequently, as to that station, the purchaser’s
prospective liability for the delinquent taxes was capped by the sales price.
Nos. 17-1575 & 17-2004 7
section 363(f), IDOR had lost the ability to pursue the pur-
chaser of the property for the unpaid taxes. Id. at 605. But
other creditors with liens on the debtors’ property had like-
wise lost the ability to enforce those liens against the pur-
chaser of the property. Had the sale taken place with all such
liens, encumbrances, and interests in place, IDOR still would
have taken nothing, the court believed, as a creditor whose
claims were inferior to those of the bank. Id. (The judge did
not consider IDOR’s right to pursue the purchaser personally
for the delinquent taxes.) Thus, IDOR’s interest had not, in
practical terms, decreased in value by virtue of the court’s
free-and-clear order. “IDOR was out of the money prior to the
[s]ale and would remain out of the money subsequent to the
[s]ale, whether or not section 363(f) is applied.” Id. Therefore,
IDOR was not entitled to adequate protection under section
363(e) in the form of compensation from the sale proceeds.
In the Naperville case, Judge Goldgar simply overruled
the debtor’s request outright. Recall that First Community
was owed $3.92 million on the loans it had made to the Na-
perville debtor, and First Community, by virtue of the prom-
issory notes underlying those loans, had a first-priority secu-
rity interest in the debtor’s property. IDOR, for its part, had
an unsecured claim in the amount of $593,000 for unpaid sales
and withholding taxes. When the debtor sought the court’s
approval to sell its property, IDOR filed a limited objection to
the sale, insisting that it was entitled to direct payment from
the sale proceeds pursuant to section 363(e) as adequate pro-
tection of its interest under the Bulk Sale Provisions. Absent
assurance of such payment, IDOR argued, the sale could not
be approved. Looking to Judge Barnes’ decision in Elk Grove
I, Judge Goldgar overruled the objection, authorized the sale
of the debtor’s property, and allowed First Community to
8 Nos. 17-1575 & 17-2004
take and apply the proceeds (after certain fees and carve-outs)
to the debt it was owed. In re Naperville Theater, LLC, No. 15 B
05384, R. 127 at 7, 23. As in the Elk Grove case, IDOR would
take nothing from the sale proceeds. The Naperville case, like
the Elk Grove Village case before it, was later converted to a
Chapter 7 proceeding and a trustee was appointed.
IDOR appealed in both cases. In the Elk Grove case, Judge
Blakey vacated the bankruptcy court’s order in part. Ill. Dep’t
of Revenue v. Elk Grove Vill. Petroleum, 541 B.R. 673 (N.D. Ill.
2015) (“Elk Grove II”). As the appellees did not dispute the
point, Judge Blakey assumed that IDOR’s right to impose suc-
cessor liability on a bulk-sale purchaser for delinquent taxes
constituted an interest warranting recognition and protection
pursuant to section 363. Id. at 676. He therefore focused on
whether that interest had any concrete value for which IDOR
was entitled to protection under section 363(e). Judge Blakey
noted that the “adequate protection” called for by section
363(e) is intended to prevent—i.e., compensate for—a de-
crease in value of the creditor’s interest in property that has
been extinguished pursuant to section 363(f). Id. at 677 (citing
§ 361). That decrease is properly calculated by comparing
what the creditor will recover in bankruptcy where its interest
in property has been extinguished pursuant to section 363(f)
with what its recovery would have been had its interest re-
mained intact. Id. at 678. As to the first question, the judge
agreed that UCB’s interest was superior to that of IDOR and
the Bulk Sales Provisions did not permit IDOR’s interest to
jump ahead of UCB in the queue of creditors and have first
bite at the sale proceeds. Id. But as to the second question,
Judge Blakey was not convinced that IDOR again would have
been left “out of the money” (as Judge Barnes had assumed)
Nos. 17-1575 & 17-2004 9
had the sale taken place subject to IDOR’s interest. Notwith-
standing the fact that UCB had a superior claim to the sale
proceeds themselves, the Bulk Sale Provisions gave IDOR the
right to look beyond those proceeds and pursue the purchaser
personally for the unpaid taxes. Thus, allowing the sale free
and clear of IDOR’s interest indeed may have caused its inter-
est to decrease in value, as it eliminated IDOR’s ability to hold
the purchaser personally liable for the taxes. To that extent,
IDOR might be entitled to compensation. Id. at 679. The court
remanded the matter for development of the record and res-
olution of two issues: (1) what IDOR would have recovered
from the purchaser had the service stations not been sold free
and clear of its interest under the Bulk Sales Provisions; and
(2) by what means IDOR could be compensated for the value
of this interest pursuant to section 363(e) given, inter alia, the
relative priority of UCB’s liens on the property and the deple-
tion of estate assets. Ill. Dep’t of Revenue v. Elk Grove Vill. Petro-
leum, LLC, 2015 WL 8481961, at *4 (N.D. Ill. Dec. 9, 2015) (“Elk
Grove III”).
On remand, the bankruptcy court again denied IDOR re-
lief upon addressing the two issues the district court had
tasked it to consider. In re Elk Grove Vill. Petroleum, LLC, 562
B.R. 708 (Bankr. N.D. Ill. 2016) (“Elk Grove IV”). In valuing
IDOR’s interest, Judge Barnes drew a distinction between the
calculable value and realizable value of the interest. The inter-
est had a nominal, calculable value of $1.53 million—i.e., the
amount that IDOR theoretically could collect from the pur-
chaser pursuant to the Bulk Sales Provisions, see n.1, supra—
but in the judge’s view, the realizable value of the interest was
effectively zero, as there was no realistic possibility that IDOR
would ever have been able to collect on the unpaid taxes not-
withstanding its rights vis-à-vis the purchaser. So far as the
10 Nos. 17-1575 & 17-2004
record revealed, the purchaser of the gas stations was a spe-
cial-purpose entity with no assets other than the purchased
stations themselves; so, apart from waiting to see if the sta-
tions turned a profit in the future, there would be nothing
other than the properties themselves to which IDOR could
look as a source of payment. Id. at 719 n.11. And if the stations
had been sold without a section 363(f) free-and-clear order,
leaving IDOR’s interest intact, then it was fair to assume that
UCB’s interest as the debtors’ lender also would have re-
mained intact. Id. at 718–19. Because the purchase price for the
stations did not come close to paying off the debt to UCB, and
its interest was senior to that of IDOR, UCB as the senior
lienholder would have a superior claim against any funds the
purchaser had set aside on instructions from IDOR to account
for the delinquent taxes as well as a superior right to enforce
its liens on the purchaser’s sole asset—the stations them-
selves. Id. at 720. Once again, IDOR, as the junior creditor,
would be left with no source of payment for the unpaid taxes.
Given that IDOR was likely to recover nothing regardless of
the operation of section 363(f), there was no need to consider
how, logistically, IDOR could be given adequate protection in
the form of cash compensation pursuant to section 363(e); its
interest had not been diminished as a result of the court’s free-
and-clear order. Id. IDOR had already been given all the pro-
tection to which it was entitled by virtue of the court’s sale
order, which allowed IDOR’s interest, such as it was, to follow
the sale proceeds. Id. at 720–21. To the extent IDOR was seek-
ing payment from those proceeds, it was asking the court to
reorder the creditor queue and give IDOR a first-priority sta-
tus which the law did not allow:
Nothing in the Sale Order ensured a recovery on
the preserved interests in the Proceeds. They
Nos. 17-1575 & 17-2004 11
must still be weighed against the priorities of all
parties whose interests were also preserved; in
this case, the priority of the UCB liens that were
also attached to the Proceeds. By arguing that
the court must permit IDOR a recovery on the
preserved interests above that afforded UCB,
IDOR attempts to use sections 361 and 363(e) to
afford the IDOR Claims a step up in priority. …
Had Congress wanted to upset the Bankruptcy
Code priority schemes in this respect, it could
have done so. But nothing in sections 361 or
363(e) has that effect. Had the court found real-
izable value for the Successor Liability Interest
outside of bankruptcy, the court would none-
theless be forced to conclude that, under the
facts of this case, IDOR has identified no bank-
ruptcy source of recovery for the same.
Id. at 722.
In the Naperville case, Judge Der-Yeghiayan likewise or-
dered a remand for a determination as to the value of IDOR’s
interest. In re Naperville Theater, LLC, 2016 WL 930659 (N.D. Ill.
Mar. 10, 2016). In the absence of a live dispute on the point,
the court assumed that IDOR’s rights under the Bulk Sales
Provisions constituted a cognizable interest under section
363(e) and (f). 2 Following Judge Blakey’s decision in Elk Grove
2 Judge Der-Yeghiayan assumed that because Judge Goldgar had adopted
Judge Barnes’ decision in Elk Grove I, he necessarily agreed that IDOR had
an interest that was cognizable and entitled to adequate protection under
section 363(e). Naperville Theater, 2016 WL 930659, at *2. Judge Goldgar
would later clarify, however, that he had not meant to hold that IDOR had
a protectable interest, but rather had “passed [the issue] by,” as IDOR’s
12 Nos. 17-1575 & 17-2004
II, Judge Der-Yeghiayan concluded that Judge Goldgar had
improperly placed the value of IDOR’s interest at zero, which
did not account for IDOR’s right to pursue the purchaser of
the debtor’s property personally for the unpaid taxes. Id. at *3.
It remained for the bankruptcy court to ascertain what value,
if any, to place on that right, which was extinguished with the
sale of the debtor’s assets. Id. The court left open the question
whether IDOR was entitled to any compensation for its inter-
est, believing it “premature” to reach that issue until such
time as the bankruptcy court had determined what value to
assign to IDOR’s interest. Id. at *2.
On remand, Judge Goldgar, like his colleague Judge
Barnes, concluded that IDOR’s interest had no realizable
value and that, consequently, IDOR was not entitled to any
compensation for the extinguishment of its interest. Judge
Goldgar had convened an evidentiary hearing in order to give
IDOR the opportunity to put on evidence as to the value of its
interest. IDOR presented testimony from a representative of
the buyer of the debtor’s theater and café, who testified in es-
sence that the buyer would not have purchased the estate’s
assets without the removal of the interests of IDOR and other
creditors. IDOR thus reasoned that because the extinguish-
ment of its interest (along with those of other creditors) made
the sale of the debtor’s assets possible, it was entitled to com-
pensation for its interest. But in Judge Goldgar’s view, the rel-
evant question was whether IDOR could, ultimately, have re-
covered on its interest, and there was “a total failure of proof
on that point.” In re Naperville Theater, LLC, No. 15 B 05384, R.
195 at 19. In other words, there was no proof as to the financial
claim could be resolved without deciding that issue. In re Naperville Thea-
ter, LLC, No. 15 B 05384, R. 195 at 14.
Nos. 17-1575 & 17-2004 13
status, assets, or resources of either the entity that had pur-
chased the theater and café from the debtor (Brixmor Hold-
ings 6SPE, LLC), or the entity that had in turn purchased
those properties from Brixmor (Star Theater). Id. Given the
lack of proof that IDOR’s interest had any value, the inevita-
ble conclusion was that there was no decrease in the worth of
its interest and therefore IDOR had no entitlement to compen-
sation pursuant to section 363(e). Id. at 20. “As far as the evi-
dence showed, the Department’s successor liability claim was
worthless.” Id. at 21.
IDOR again appealed in both cases. We granted the par-
ties’ joint request pursuant to Bankruptcy Rule 8006(g) for
leave to appeal the adverse judgments of the bankruptcy
court directly to this court.
II.
The essential question posed in these appeals is whether
IDOR received adequate protection for its interest in the debt-
ors’ properties when those properties were sold, with the
bankruptcy court’s permission, free and clear of IDOR’s inter-
est in compensation for unpaid taxes. The bankruptcy courts
concluded, in essence, that because IDOR had not shown that
the purchasers had assets apart from the purchased proper-
ties from which IDOR could have collected the unpaid taxes
had the sales taken place with its interest (and its right to pur-
sue the purchasers personally) intact, its interest had not de-
creased in value by virtue of the courts’ section 363(f) orders,
and IDOR was therefore not entitled to any remuneration for
its interest under section 363(e). The thrust of IDOR’s appeals
is that because its ability to hold the purchasers personally li-
able for the taxes had real value, as the district judges recog-
14 Nos. 17-1575 & 17-2004
nized, the purchase price for the debtors’ properties neces-
sarily included some amount of consideration for the removal
of IDOR’s interest. As IDOR sees things, then, it does not mat-
ter whether the purchasers had other assets apart from the
purchased properties from which IDOR might have sought to
collect the delinquent taxes. The purchasers have already paid
something for (the removal of) IDOR’s interest, and IDOR is
entitled to that portion of the sale proceeds. 3
Section 363(f) of the Bankruptcy Code authorizes the trus-
tee to sell property of the estate free and clear of any interest
held by an entity other than the estate itself. Needless to say,
removing the encumbrances on estate property makes the
property more attractive to potential purchasers, thereby
boosting the sale price and maximizing the recovery for cred-
itors of the estate. See Precision Indus., supra, 327 F.3d at 548;
Douglas v. Stamco, 363 F. App’x 100, 102–03 (2d Cir. 2010)
(non-precedential decision); Diogo-Carreau v. Am. Home
Mortg. Acceptance, Inc., 167 F. Supp. 3d 258, 263 (D. Mass.
2016); Elk Grove II, 541 B.R. at 676; see generally Toibb v. Radloff,
501 U.S. 157, 163, 111 S. Ct. 2197, 2201 (1991) (“Chapter 11 …
3 IDOR did not waive this argument, as the banks suggest it did. To the
extent that the district court rejected the argument in each instance below,
IDOR was not required to take an immediate appeal to this court in order
to preserve it. In both cases, the district court remanded the matter to the
bankruptcy court for further consideration as to the value of IDOR’s inter-
est for purposes of section 363(e). This was by no means a ministerial task
on the part of the bankruptcy court, and so the judgments were not final
at the time the cases were remanded. See, e.g., In re Ferguson, 834 F.3d 795,
798-800 (7th Cir. 2016). IDOR was thus entitled (indeed, required) to wait
until the remands were resolved before pursuing the issue in this court.
Nos. 17-1575 & 17-2004 15
embodies the general Code policy of maximizing the value of
the bankruptcy estate”).
However, section 363(e) qualifies this power in providing
that, upon the request of an entity holding an interest in the
property to be sold, the court “shall prohibit or condition such
… sale … as is necessary to provide adequate protection of
such interest.” Section 361(1) in turn provides that when ade-
quate protection is called for under section 363, it may be pro-
vided in the way of cash payments compensating the affected
entity for the decrease in the value of its interest. In short, an
entity whose lien or other interest is removed from property
in order to facilitate its sale is entitled to compensation for
whatever loss the removal causes the entity. See United Sav.
Ass’n of Tex. v. Timbers of Inwood Forest Assocs., Ltd., 484 U.S.
365, 370–71, 108 S. Ct. 626, 630 (1988). Typically, the entity is
compensated from the proceeds of the sale. See Precision In-
dus., 327 F.3d at 548; In re Nov. 2005 Land Investors, LLC, 636 F.
App’x 723, 726 (9th Cir. 2016) (non-precedential decision).
As a threshold matter, we assume without deciding that
IDOR’s authority to impose successor liability for unpaid
taxes on the purchaser in a bulk sale constitutes a cognizable
“interest” in a debtor’s property for purposes of section 363.
See In re Elk Grove I, 510 B.R. at 603, and cases cited therein; see
generally Precision Indus., 327 F.3d at 545 (indicating that the
term should be construed broadly). Judge Barnes expressly
held in IDOR’s favor on this point, 510 B.R. at 603, although
Judge Goldgar found it unnecessary to decide the issue, see
n.2, supra. The pertinent fact for our purposes, however, is
that in neither case did anyone contest the point on appeal to
the district court, leading both Judge Blakey and Judge Der-
16 Nos. 17-1575 & 17-2004
Yeghiayan to consider the point either undisputed or unnec-
essary to resolve. Elk Grove II, 541 B.R. at 676; Naperville Thea-
ter, 2016 WL 930659, at *2. Although the Chapter 7 Trustee at-
tempts to resurrect the issue in this court, it is too late in the
day for the parties to reopen this issue. We shall proceed on
the assumption that IDOR had an interest that was entitled to
adequate protection under section 363(e). 4
What the bankruptcy court was thus required to resolve
was the extent to which the value of IDOR’s interest under the
Bulk Sales Provisions decreased when, in each case, the court
permitted the properties to be sold free and clear of that inter-
est. That assessment requires a review of the relevant provi-
sions of Illinois law. See Barnhill v. Johnson, 503 U.S. 393, 397–
98, 112 S. Ct. 1386, 1389 (1992); Butner v. United States, 440 U.S.
48, 55, 99 S. Ct. 914, 918 (1979); Hoornstra v. United States, 969
F.2d 530, 532 (7th Cir. 1992); Bjork v. United States, 486 F.2d
934, 937 (7th Cir. 1973).
IDOR’s interest rests on the Bulk Sale Provisions found in
section 902(d) of the Illinois Income Tax Act, 35 ILCS 5/101 et
seq. and section 5j of the Retailers Occupation Tax Act, 35 ILCS
120/1 et seq. These provisions apply when a taxpayer sells the
4 We may also assume, contrary to UCB’s suggestion, that the Bulk Sales
Provisions would apply (absent a section 363(f) order) when the property
is being sold by a trustee in bankruptcy subject to the bankruptcy court’s
permission and oversight. UCB has advanced this argument largely as a
matter of policy rather than statutory interpretation. The Bulk Sales Pro-
visions themselves do not exempt sales taking place in the course of bank-
ruptcy proceedings, and although the trustee may not literally be the “tax-
payer” to which these provisions refer, he certainly acts on the taxpayer’s
behalf. In any case, given the other grounds on which we dispose of
IDOR’s appeals, we need not reach this contention.
Nos. 17-1575 & 17-2004 17
majority of its assets (including real property) outside of the
normal course of business, as in a liquidation. Pursuant to
those provisions, the purchaser in a bulk sale must give notice
of the purchase to IDOR. If there are outstanding state taxes
owed by the seller, IDOR may within ten business days issue
a “stop order” instructing the purchaser to reserve a portion
of the purchase monies sufficient to cover the estimated
amount of outstanding taxes owed by the business. IDOR
then has another 60 business days to calculate the actual
amount of taxes owed and to issue a revised stop order with
the updated tax bill and directing the purchaser to continue
holding in reserve the portion of the purchase price set aside
previously for unpaid taxes. If the seller thereafter fails to pay
the outstanding taxes, IDOR may issue a demand to the pur-
chaser to turn over the withheld funds, and the purchaser
“shall pay” to the Department the amount so withheld from
the purchase price. A purchaser who fails to give IDOR notice
of a bulk sale, or fails to withhold the amount specified in a
stop order, or fails to turn over the withheld funds at IDOR’s
demand becomes personally liable to IDOR for the amount of
unpaid taxes owed by the seller up to the reasonable value of
the property acquired by the purchaser. See 35 ILCS 5/902(d);
35 ILCS 120/5j; 86 Ill. Admin. Code §130.1701.
The Bulk Sale Provisions give IDOR a unique and power-
ful weapon in the pursuit of delinquent taxes, with important
consequences for what and how a purchaser would pay for
property affected by those provisions. Faced with the pro-
spect of being held personally liable for a seller’s unpaid
taxes, a reasonable purchaser would take steps of its own to
make certain that unwelcome event never came to pass.
18 Nos. 17-1575 & 17-2004
In this regard, it is important to note that setting aside a
portion of the purchase money in compliance with a stop or-
der from IDOR does not by itself ensure either that IDOR will
be paid from those funds or that the purchaser will be dis-
charged from liability to IDOR. A business with a significant
tax liability to IDOR is likely to have other debts as well; and
the business’s other creditors may have a superior claim to the
sale proceeds—including any portion of the proceeds the pur-
chaser set aside at IDOR’s direction. IDOR’s power to compel
a purchaser to reserve a portion of the proceeds for the De-
partment’s benefit does not isolate the reserved funds from
the claims of other creditors. See Bjork v. United States, supra,
486 F.2d at 938 (bulk sale statute authorizing IDOR to issue
stop order “does not purport to vest ownership of the held
fund in the State”). A purchaser faced with competing claims
to the set-aside funds can, of course, file an interpleader action
and ask a court to decide who has the superior claim to the
funds. See 28 U.S.C. § 1335; Fed. R. Civ. P. 22; 735 ILCS 5/2-
409; see also, e.g., Bjork, 486 F.2d at 939 (concluding in inter-
pleader suit that federal Internal Revenue Service had supe-
rior claim to withheld funds notwithstanding stop order is-
sued by IDOR). But, as IDOR asserts, setting aside and inter-
pleading the funds does not necessarily discharge the pur-
chaser’s obligations under the Bulk Sales Provisions. In the
event the interpleader court determines that another creditor
has a superior claim to the funds, the purchaser, under a
broad reading of the Bulk Sales Provisions, may nonetheless
be held liable to IDOR for failing to withhold and pay those
reserved funds to IDOR.
Courts in other jurisdictions have concluded that a bulk
sales stop order requires a purchaser not simply to reserve a
Nos. 17-1575 & 17-2004 19
portion of the purchase money sufficient to cover the out-
standing tax liability but to do so for the benefit of the state tax-
ing authority. These courts construe bulk sale provisions to
impose essentially strict liability on the purchaser for taxes
left unpaid by the property’s seller, such that if another cred-
itor lays claim to the set-aside funds and the purchaser is com-
pelled to turn over the funds to that creditor, the purchaser
remains liable to the state for the outstanding tax debt. See
Schnyder v. State Bd. of Equalization, 124 Cal. Rptr. 2d 571, 577–
79 (Cal. Ct. App. 2002) (holding purchasers liable to state for
unpaid taxes after court in interpleader action had deter-
mined that IRS had superior claim to funds withheld pursu-
ant to stop order); Red, White & Blue Transmission, Inc. v. Dep’t
of Revenue Servs., 690 A.2d 437, 439–40 (Conn. Super. Ct. 1994)
(transmitting funds to trustee for resolution of competing
creditor claims does not insulate purchaser from liability to
state). Although IDOR does not cite, and we have not found,
any Illinois case law on this point, we may assume (as a pur-
chaser might) that Illinois courts likely would follow this line
of authority. The Illinois statutes themselves state explicitly
that in the event the seller of the property has failed to pay the
outstanding taxes and IDOR has issued timely instructions to
the purchaser to withhold funds for the tax delinquency, the
purchaser “shall pay to the Department the amount so with-
held from the purchase price.” 35 ILCS 5/902(d) (emphasis
added); see also 35 ILCS 120/5j (nearly identical wording).
IDOR’s letter rulings reflect the same view. See IDOR Letter
No. 96-0114, 1996 WL 699622, at *1 (Aug. 26, 1996) (“If the
Transferee fails to report to the Department, withhold the req-
uisite amount, or pay over the withheld amount when required,
the Transferee will become personally liable for the outstand-
ing state tax liabilities of the Transferor, up to the amount of
20 Nos. 17-1575 & 17-2004
the value of the property transferred.”) (emphasis added);
IDOR Letter No. 90-0406, 1990 WL 207605, at *1 (Jul. 5, 1990)
(same); IDOR Letter No. 87-0624, 1987 WL 53814, at *1 (Aug.
19, 1987) (same); but see also 2 Ill. Admin. Code § 1200.110(a)
(IDOR general information letters do not constitute agency
policy and do not bind IDOR); id. § 1200.120(c) (IDOR private
letter rulings only binding as to taxpayer that requested rul-
ing). 5
5 The banks have asserted that a purchaser would be discharged from lia-
bility in an interpleader action—in other words, that the purchaser would
have satisfied its obligation to IDOR by withholding the requisite funds
pursuant to the stop order, interpleading the funds, and allowing a court
to decide, as between IDOR and the seller’s other creditors, who had the
superior claim to the withheld funds. Banks Br. 25-26. But this assumes
that the purchaser is a neutral stakeholder with no independent liability
to IDOR. See John Hancock Life Ins. Co. (U.S.A.) v. Jacobs, 2014 WL 587521,
at *1 (D. Nev. Feb. 13, 2014); Metro. Life Ins. Co. v. Mitchell, 966 F. Supp. 2d
97, 103 (E.D.N.Y. 2013). Arguably, however, the purchaser would not be a
neutral stakeholder. As we have noted, the Bulk Sales Provisions on their
face impose a duty on the purchaser not simply to withhold funds from
the purchase price, but to turn over those funds to IDOR in the event that
the seller does not make good on its outstanding tax obligations. Assum-
ing that Illinois courts would follow cases like Schnyder, the purchaser
would remain personally liable to IDOR if it filed an interpleader suit and
the court presiding over that suit determined that the bank or another
creditor of the seller had a superior claim to the withheld funds; in that
event, the purchaser would have “failed” to remit the withheld funds to
IDOR. See Schnyder, 124 Cal. Rptr. at 577 (by filing interpleader action,
purchasers failed to “withhold” funds from the purchase monies as re-
quired by bulk sales statute, in sense that they did not make withheld
funds available to state agency for satisfaction of outstanding tax liability).
Put another way, an interpleader action may relieve the purchaser of hav-
ing to decide who has the superior claim to the withheld funds. See, e.g.,
United States v. Federative Republic of Brazil, 748 F.3d 86, 95 (2d Cir. 2014);
Bank of N.Y. Mellon Trust Co., N.A. v. Telos CLO 1006-1 Ltd., 274 F. Supp. 3d
Nos. 17-1575 & 17-2004 21
Against this backdrop, it is not hard to appreciate IDOR’s
position that it would be worth something to a bulk-sale pur-
chaser to be able to make its purchase free and clear of IDOR’s
interest and thus have no worry about successor liability—
and that the sale price for the debtors’ properties in these
cases necessarily included a premium for the removal of that
interest. The question is what value to place on the removal.
IDOR appears at times to assume that, but for the bankruptcy
court’s free-and-clear orders, it likely would have recovered
the entirety of the taxes owed given its ability to pursue the
purchasers personally. For that reason, IDOR places a corre-
spondingly high value on the removal of its interest and the
compensation to which it is entitled under section 363(e): 100
percent of the outstanding tax debt (up to the amount of the
sale price). But we are dubious of the notion that IDOR was
likely to have recovered all of the outstanding taxes but for
the removal of its interest; and for purposes of placing a value
on IDOR’s interest for purposes of section 363(e), we must
consider what IDOR realistically could have recovered from
the purchaser.
We may deal with IDOR’s argument on its own terms
without attempting to resolve the conflict it poses with the
priority scheme reflected in the Bankruptcy Code. See 11
U.S.C. § 507. There is no dispute that IDOR’s claims against
the debtors were inferior to those of the banks and that, given
the size of the banks’ claims vis-à-vis the proceeds of the prop-
191, 214 (S.D.N.Y. 2017); Amalgamated Trust & Sav. Bank v. Silha, 460 N.E.2d
372, 377 (Ill. App. Ct. 1984). But it does not necessarily relieve the pur-
chaser of its independent liability to IDOR for the outstanding taxes under
the Bulk Sales Provisions.
22 Nos. 17-1575 & 17-2004
erty sales, IDOR ordinarily would be “out of the money.” Ac-
cording IDOR a right to claim any portion of the sale proceeds
would, in a real sense, permit IDOR to jump the queue of
creditors and grant IDOR monetary protection for its interest
at the expense of other creditors. The banks describe this as
awarding IDOR a post hoc priming lien that permits IDOR to
assume first place in the creditor queue. 6 We do not take this
prospect lightly. See, e.g., In re R.J. Dooley Realty, Inc., 2010 WL
2076959, at *7 (Bankr. S.D.N.Y. May 21, 2010) (criticizing no-
tion that debtor’s tenant might be entitled to adequate protec-
tion under section 363(e) given sale of debtor’s property free
and clear of tenant’s leasehold interest, as reimbursement
from sale proceeds would permit tenant to “catapult … ahead
of its position behind secured, administrative, and priority
unsecured creditors, in complete contravention of the priori-
ties of the Bankruptcy Code”).
What distinguished IDOR from other creditors, however,
was its right to look beyond the debtor’s assets and to hold
the purchasers of those assets personally liable for the taxes it
was owed. To that extent, the bankruptcy court’s free-and-
clear orders arguably deprived IDOR of a power and interest
that no other creditor possessed. So arguably IDOR is not so
6 Whatever other rights the bulk sale provisions convey to IDOR, they do
not permit IDOR’s claim to the proceeds of a bulk sale to take priority over
the superior claims of other creditors. “Nothing in this Section shall be
construed to give the Department a preference over the rights of any bona
fide purchaser, holder of a security interest, mechanics lienholder, mort-
gagee, or judgment lien creditor arising prior to the filing of a regular no-
tice of lien. …” 35 ILCS 5/1103(a); 35 ILCS 120/5a. In this respect, the bulk
sale provisions are consistent with other provisions of Illinois law. See 810
ILCS 5/9-322(a)(1) (security interests rank according to priority in time or
perfection).
Nos. 17-1575 & 17-2004 23
much demanding permission to cut ahead of other creditors
as it is insisting on recognition that it had a unique interest
that no other creditor had and which extended beyond the
corpus of the bankruptcy estate. Put another way, to the ex-
tent the price the purchaser paid for the debtor’s property in-
deed does reflect a premium for the removal of IDOR’s right
to impose successor liability for the taxes on the purchaser,
that consideration, whatever it may be, is attributable to IDOR
rather than any asset of the estate. We shall therefore assume
without deciding that a court could place a value on IDOR’s
right and compensate IDOR accordingly from the proceeds of
the section 363 sale, even if that would reduce the recovery to
other, more senior creditors.
But the question, again, is what value to place on IDOR’s
right to hold a purchaser personally liable for unpaid taxes.
Although we can find no fault in the abstract with IDOR’s the-
ory as to the unique value of its interest, the notion that it
stood to recover 100% of its claim for unpaid taxes but for the
bankruptcy court’s free-and-clear orders runs into several
pragmatic obstacles. Inside or outside of bankruptcy, the
seller, its creditors, and prospective purchasers all would be
cognizant of IDOR’s right to pursue a purchaser for unpaid
taxes. No reasonable, informed purchaser would agree to sale
terms that left it unprotected against IDOR; and for their part,
the banks, as the debtors’ senior-most creditors, would not
agree to any sale scenario in which IDOR stood to recover
100% of its claim from the purchase money at the banks’ ex-
pense.
A prudent purchaser in a bulk sale would take protective
measures over and above complying with a stop order in or-
der to shield itself from personal liability to IDOR. A buyer
24 Nos. 17-1575 & 17-2004
can always, for example, insert a clause in the purchase agree-
ment requiring the seller to pay the delinquent taxes (and pro-
duce proof that it has done so) and/or to hold the buyer harm-
less for any liability to IDOR. But assuming that the seller
lacks the resources to clear the tax debt itself, the buyer alter-
natively might structure the purchase agreement in such a
way as to expressly reserve a portion of the purchase money
for the (exclusive) benefit of IDOR in order to satisfy the tax
liability and thereby insulate the reserved funds from the
claims of other creditors—even those whose claims are senior
to those of IDOR. See Hoornstra, supra, 969 F.2d at 533–34
(where purchase agreement called for portion of purchase
money to be placed in escrow and conditioned payment to
seller on satisfaction of outstanding tax liabilities, and IDOR
issued timely stop order once notified of sale, seller did not
acquire beneficial interest in reserved funds that would per-
mit IRS as senior lienholder to take reserved funds ahead of
IDOR as it had in Bjorn). Alternatively, the purchaser might
insist that the price of the property be reduced to account for
the risk that complying with the stop order might not be
enough to protect the purchaser from being held personally
liable to IDOR. 7
IDOR might be indifferent to such measures, as none of
them would undermine its ability to collect the unpaid taxes,
but the debtors’ senior creditors—here, the banks—surely
would not be indifferent. In any case where a debtor’s assets
are insufficient to cover its debts, a reduction in the purchase
7 Or the purchaser might simply walk away from the transaction. See
Schnyder, 124 Cal. Rptr. at 579.
Nos. 17-1575 & 17-2004 25
price or segregation of purchase funds for the sole benefit of
IDOR will decrease a senior creditor’s recovery in a situation
where that creditor already faces substantial losses. And in
these cases, the banks were not without their own weapon to
prevent IDOR from obtaining recompense at their expense:
the ability to foreclose on the properties.
One of the few points of agreement among the parties is
that a foreclosure does not trigger the Bulk Sales Provisions.
See 86 Ill. Admin. Code § 130.1701(g)(3) (“A repossession of
equipment and inventory by a lender upon default by a bor-
rower does not constitute a transfer within the meaning of the
Bulk Sales provisions of the Act.”); IDOR Letter No. 11-0096,
2011 WL 7014975, at *4 (Dec. 7, 2011) (“if the successor does
no more than repossess or foreclose on property that is the
subject of a note and mortgage or security interest, we do not
believe that the situation is subject to the bulk sales reporting
requirements because no ‘sale or transfer’ within the statutory
meaning has occurred”); IDOR Letter No. 87-215, 1987 WL
53678, at *2 (Aug. 26, 1987) (“The Department has a standing
policy of not enforcing either [bulk sales] statute in judicial
and non-judicial foreclosure actions.”); IDOR Br. 34 n.11
(“While the regulation [§ 130.1701(g)(3)] refers to the repos-
session or foreclosures of personal property, IDOR in practice
extends it to the foreclosure of realty.”); IDOR Br. 31–32 n. 8
(“IDOR does not assert successor liability under the Bulk
Sales Provisions in federal foreclosure cases just as it does not
do so in state foreclosures”). Thus, if the banks had decided
to foreclose on the properties, there would have been no need
to set aside funds for the taxes owed to IDOR and IDOR
would have had no right to pursue the banks for the outstand-
ing tax debt. It would be as if the properties had not changed
hands at all. By virtue of their foreclosure authority, the banks
26 Nos. 17-1575 & 17-2004
thus had the power to veto any sale terms that favored IDOR
at the expense of the banks. 8
Of course, foreclosure comes with significant costs and
can ultimately reduce the net recovery to a bank once it dis-
poses of the property. IDOR’s able counsel therefore was no
doubt correct when he asserted at oral argument that the
power to foreclose is one the banks will be reluctant to use.
But when, as in these cases, the taxes owed to IDOR run into
the millions of dollars, we doubt that a lender would hesitate
to use (or at least threaten) foreclosure in order to prevent
IDOR from skimming a substantial portion of the sale pro-
ceeds for itself and to maximize its own recovery. 9
Given that the banks and IDOR both have the means to
block a sale that does not adequately address their respective
interests in compensation, a compromise as to the allocation
of sale proceeds is likely the only way that a bulk sale would
proceed in a case where the seller’s assets fall short of making
whole even the senior-most creditor, let alone that creditor
and IDOR both. A compromise, of course, would entail the
bank agreeing to let IDOR, notwithstanding its status as a jun-
ior creditor, take some portion of the sale proceeds in ex-
change for releasing the purchaser from successor liability for
unpaid taxes, and IDOR agreeing to accept something less
than 100 percent of the amount that the Bulk Sales Provisions
8 If the property owner were in bankruptcy, the bank of course would
have to ask the bankruptcy court to lift the automatic stay in order to allow
it to pursue the foreclosure in state court.
9 We are told, for example, that the taxes owed by one of the five Elk Grove
stations exceeded the sales price for that station by a multiple of three. So
any arrangement that prioritized payment of the sale proceeds to IDOR
would have left the bank with nothing as to that station.
Nos. 17-1575 & 17-2004 27
would allow it to collect. We can be confident that these types
of deals are more than an abstract possibility. IDOR’s own
counsel confirmed at oral argument that it negotiates compro-
mises with lenders on a regular basis.
This is where the wheels come off the wagon of IDOR’s
argument. Recall that for purposes of determining the com-
pensation putatively owed to IDOR under section 363, section
361(1) directs us to consider how much the value of IDOR’s
interest decreased as a result of the bankruptcy courts’ free-
and-clear orders. IDOR’s go-for-broke position insists that it
should be reimbursed for the full amount of the tax delin-
quency it was authorized to collect from the purchasers. But,
for the reasons we have set out, it is not at all likely that IDOR
in fact would have recovered those taxes in full from the pur-
chasers in these cases. It might have struck a deal with the
banks and/or the purchasers to recover something less than
100 percent of the taxes, but at no point in the proceedings has
IDOR offered any evidence, or articulated any methodology,
by which we could determine how much it might have recov-
ered in such a deal and in turn the extent to which the value
of its interest decreased when the bankruptcy court lifted its
interest from the debtors’ properties.
In its reply brief, IDOR suggests that the likelihood of its
being able to collect the delinquent taxes from a purchaser is
irrelevant to the value of its interest and that the bankruptcy
court was therefore wrong to consider, for example, what re-
sources, if any, the purchasers in these cases had available to
pay the taxes (IDOR Reply at 23–24); but we do not see why
this is so. Sections 361(1) and 363(e) call for a creditor to be
compensated for the decrease in value of its interest. If, as a
practical matter, IDOR’s right to impose successor liability on
28 Nos. 17-1575 & 17-2004
the purchaser was worth nothing, or worth something less
than the full amount of the taxes IDOR was owed, then as a
logical matter that fact necessarily informs the determination
of whether and by how much the value of IDOR’s interest de-
creased by virtue of the bankruptcy court’s free-and-clear or-
ders and of what compensation IDOR is owed for the de-
crease. See, e.g., In re Martin, 761 F.2d 472, 475–78 (8th Cir.
1985). As Judge Blakey pointed out, an interest that is cogniza-
ble under section 363(e) and (f) may be worth nothing, in prac-
tical terms, in which case the interest-holder is entitled to no
compensation pursuant to section 363(e) and 361(1). See Elk
Grove II, 541 B.R. at 678 (collecting cases).
We have not forgotten IDOR’s contention that the pur-
chasers have already paid a premium for the removal of
IDOR’s interest, such that there is no need to consider what
IDOR realistically might have been able to demand from a
purchaser and whether the purchaser had the means to pay
it; but we are still faced with a problem of valuation. What-
ever premium the purchasers might have paid for the re-
moval of IDOR’s interest would have been informed (and dis-
counted) by the likelihood of IDOR being able to collect on its
interest. Given the realities we have discussed, it is not at all
likely that any premium the purchasers may have paid came
close to the figure that IDOR nominally was entitled to collect
from the purchasers under the Bulk Sales Provisions.
As should be clear by now, we are placing the responsibil-
ity for the failure of proof as to the value of IDOR’s interest on
IDOR itself. No issue has been raised in these appeals as to
the proper allocation of the burden of proof on this point.
IDOR itself notes several times in its brief that the bankruptcy
court in both cases concluded that IDOR failed to sustain its
Nos. 17-1575 & 17-2004 29
burden of proof to establish the value of its successor liability
interest. IDOR Br. 7, 22, 38. Although IDOR faults the conclu-
sion that the value of its interest was not proven, it does not
quarrel with the notion that the burden to establish that value
belonged to it. We note that there is at least some authority
that for purposes of section 363(e), a creditor claiming the
right to adequate protection bears only the minimal threshold
burden of establishing the validity, priority, or extent of its
interest, whereas the debtor (or trustee) must shoulder the in-
itial burden of establishing what constitutes adequate protec-
tion vis-à-vis that interest—including the value of the credi-
tor’s interest and any decrease therein. See In re AMR Corp.,
490 B.R. 470, 477 (S.D.N.Y. 2013); 11 U.S.C. § 363(p). But we
need not explore the point, as IDOR has waived any conten-
tion as to the burden of proof.
As there is no evidence as to what IDOR likely would have
collected from the purchasers but for the bankruptcy court’s
section 363(f) free-and-clear orders, there is no way to deter-
mine what decrease in value the section 363(f) orders caused
or what, if any, consideration the purchasers paid specifically
to buy the properties free and clear of IDOR’s interest under
the Bulk Sales Provisions. No matter which party bore the
burden of proof on this point, the failure of proof precludes a
meaningful assessment of the value of IDOR’s interest. The
bankruptcy courts therefore did not err in valuing IDOR’s in-
terest at zero for purposes of its right to adequate protection
under section 363(e).
III.
For all of the foregoing reasons, the judgments of the bank-
ruptcy court are affirmed.