Alp liquidating trust

15 Jan

A fiduciary may choose to follow the provisions of the Revised Act if the trust or Will grants the fiduciary such discretion.

However, the fiduciary must follow the provisions of the Revised Act if the will or trust is silent as to the treatment of income and principal.

Bartlett, Jr., Kasowitz, Benson, Torres & Friedman, Houston, TX, for CNA Holdings, Inc. Here, the Appellants sought an order pursuant to § 1142(b), and, although the Insurers opposed the requested relief, each side argued that a ruling in its favor was necessary to the implementation or execution of the U. As a result, the proceeding on the Appellants' motion constitutes a core proceeding. § 1334 and qualifies as a core proceeding over which the bankruptcy court had full judicial power. We also agree with the bankruptcy court's holding on this issue.

Consequently, the Appellants' motion pertains to the plan's implementation or execution and therefore satisfies the Craig's Stores test for post-confirmation jurisdiction. § 1142(b), which authorizes post-confirmation bankruptcy orders “necessary for the consummation of the plan.” Thus, proceedings within the contemplation of § 1142(b) are more appropriately viewed as “arising in” a case under title 11. We note, as a preliminary matter, that section 8.20(b) does not require bankruptcy-court approval of a settlement liquidating the Shell/CNA claims.

The Appellants contend, on the other hand, that their proposed agreement-including the arbitration provision-is fully consistent with the plan.

Warren Howard Smith, Warren Smith & Associates, Dallas, TX, for Century Indem. Thus, in opposition to the motion, the Insurers rely on the Bankruptcy Code's prohibition on modification of a substantially consummated plan of reorganization.

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On April 22, 2004, Governor Fletcher signed into law Kentucky’s newly revised Principal and Income Act (“Revised Act”), which supports the now widespread use of revocable trusts as Will substitutes as well as modern theories of portfolio management.

In the recent case of In re Craig's Stores of Texas, Inc., however, we rejected this expansive view in favor of a “more exacting theory”: “After a debtor's reorganization plan has been confirmed, the debtor's estate, and thus bankruptcy jurisdiction, ceases to exist, other than for matters pertaining to the implementation or execution of the plan.” Although we can imagine cases where the two approaches would produce different results, bankruptcy jurisdiction existed over the Appellants' motion in this case, even under the narrower test. The Appellants still have an obligation to resolve the Shell/CNA claims, and that obligation is at the heart of this dispute.

West, Gwendolyn Johnson Samora, Vinson & Elkins, Houston, TX, for Shell Oil Co. O'Connor (argued), Kasowitz, Benson, Torres & Friedman, New York City, James W. Johnson, Sonnenschein, Nath & Rosenthal, Chicago, IL, Judith Elkin, Haynes & Boone, Dallas, TX, for Travelers Ins. To this end, we have noted already that a proceeding is core if it arises under title 11 or arises in a case under title 11. In other words, such proceedings arise only in bankruptcy. This dispute would not exist outside of this bankruptcy case. We therefore find that the bankruptcy court correctly concluded, from its mere involvement in this post-confirmation dispute, that the true issue is whether the proposed agreement constitutes an impermissible attempt to modify the plan, despite the Appellants' characterization of the agreement as a settlement.

Mc Daniel (argued), Akin, Gump, Strauss, Hauer & Feld, John E. Having found that subject matter jurisdiction exists over the parties' dispute, we must now decide whether the bankruptcy court could hear and determine this matter as a core proceeding. “ ‘[A]rising in’ proceedings are those that are not based on any right expressly created by title 11, but nevertheless, would have no existence outside of the bankruptcy.” Proceedings invoking the bankruptcy court's statutory authority to enter orders necessary for the consummation of a confirmed plan meet this criteria because the authority can be exercised only in the context of a bankruptcy case. § 158, the district court had jurisdiction to review the bankruptcy court's order denying the motion, III. Standard of Review “This Court, acting as a second review court, reviews the bankruptcy court's findings of fact under the clearly erroneous standard, and the bankruptcy court's conclusions of law de novo.” In the present case, the bankruptcy court determined that the proposed agreement was not a settlement, but rather an attempt to modify a substantially consummated plan of reorganization in contravention of 11 U. So if the agreement is indeed consistent with the plan, the question becomes why did the Appellants file the motion for approval. Section 1127(b) “allows post-confirmation modification of a Chapter 11 plan after notice and a hearing, so long as the proposed modification is presented to the Court ‘before substantial consummation of such plan.’ The section operates to prohibit modification once ‘substantial consummation’ has occurred.” Thus, § 1127(b)'s prohibition applies, and the Appellants concede that they presented their proposed agreement to the bankruptcy court because the Insurers took the position that it would, in fact, modify the plan.

This Commentary has been prepared in response to such interest of overseas investors.[2] The TMK scheme[3] and the GK/TK scheme[4] have been used regularly by overseas investors as tax-efficient schemes for real estate investment in Japan.

Of such schemes, the GK/TK scheme is subject to the regulations under the Joint Enterprise Act if the subject asset of the scheme is a fee simple estate ("GK/TK (real asset)").