Page 121 - Bankruptcy Volume 1

 To control, defend, prosecute, settle, or pursue the resolution of litigation or all claims, rights
avoidance actions, and other causes of action included in the trust property in accordance with
the plan and trust agreement

 To oversee and, where appropriate, initiate actions to resolve any remaining issues regarding the
allowance and payment of claims, including, as necessary, initiation and participation in pro-
ceedings before the bankruptcy court

 To take such actions considered necessary and useful to maximize the value of the trust

Liquidating Trusts

The IRS provided a set of requirements that must be met to qualify as a liquidating trust established pur-
suant to a confirmed Chapter 11 plan. Generally, an entity will qualify for taxation as a grantor trust if
"it can be shown that the purpose of the arrangement is to vest in trustees responsibility for the protec-
tion and conservation of property for beneficiaries who cannot share in the discharge of this responsibil-
ity and, therefore, are not associates in a joint enterprise for the conduct of business for profit." fn 7 The
key requirements to qualify as a grantor trust as set forth in Revenue Procedure 94-45 are as follows:

 The trust is or will be created pursuant to a confirmed plan under Chapter 11 of the Bankruptcy
Code for the primary purpose, as stated in its governing instrument, of liquidating the assets
transferred to it with no objective to continue or engage in the conduct of a trade or business, ex-
cept to the extent reasonably necessary to, and consistent with, the liquidating purpose of the
trust.

 The plan and disclosure statement must explain how the bankruptcy estate will treat the transfer
of its assets to the trust for federal income tax purposes. A transfer to a liquidating trust for the
benefit of creditors must be treated for all purposes of the code as a transfer to creditors to the
extent that the creditors are beneficiaries of the trust. The transfer will be treated as a deemed
transfer to the beneficiary-creditors followed by a deemed transfer by the beneficiary-creditors to
the trust. To the extent that the trust is being created for the benefit of equity interest holders in
the debtor, the transfer to the trust should be treated as a transfer to the equity interest holders.
The ruling request must explain whether the debtor or the bankruptcy estate will incur any tax li-
ability from the transfer and, if so, how that liability will be paid.

 The plan, disclosure statement, and any separate trust instrument must provide that the benefi-
ciaries of the trust will be treated as the grantors and deemed owners of the trust. The trust in-
strument (which may be the plan if there is no separate trust instrument) must require that the
trustee file returns for the trust as a grantor trust pursuant to Treasury Regulation Section 1.671-
4(a).

 The plan, disclosure statement, and any separate trust instrument must provide for consistent
valuations of the transferred property by the trustee and the creditors (or equity interest holders)
and those valuations must be used for all federal income tax purposes.

fn 7 Treas. Reg. 301.7701-34(a).

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