Appeal from the District Court of the United States for the Northern District of Illinois, Eastern Division; John P. Barnes, Judge.
Before EVANS and SPARKS, Circuit Judges, and BRIGGLE, District Judge.
Here presented is a question of liability of a Section 77, Bankr.Act, 11 U.S.C.A. § 205, railroad-debtor trustee, for a statutory tax penalty, which was imposed on debtor's Illinois taxes, for the year 1935, and became a lien*fn1 prior to the institution of Section 77 proceedings, on Jund 28, 1938, but which accrued n.2 (Footnote Omitted) and became payable after such proceedings were begun.
The District Court upheld the liability for the full penalty, from which order this appeal is taken.
Our question is one of statutory construction*fn3 and of application of decisions.
The facts are not in dispute.
The 1935 taxes became a lien on the railroad's property on April 1, 1935 - approximately three months before reorganization proceedings were instituted. Taxes drew interest at 1% per month, after they became due and payable, and the Supreme Court of Illinois has construed such charge to be a penalty, and not interest.
The recent decision of the Court in Boteler v. Ingels, 308 U.S. 57, 60 S. Ct. 29, 31, 84 L. Ed. 78, governs. Discussion is unnecessary, save to give our reasons why we hold this decision applicable.
That case involved the California vehicle license and registration fees. Said license fees are due the first of each year, and are delinquent when a vehicle is operated without registrtion and licenses. If the fees are not paid within thirty days after delinquency, a penalty equal to the fees accrues. As trustees of a business in bankruptcy, the petitioner continuously operated unregistered and unlicensecd vehicles on California highways from January 1 to Febrary 27. The trustee argued that the State was barred from collecting the penalties because of subdivision 57, sub. j of the Bankruptcy Act.
We quote from the decision.
"Recognizing that section 57, sub. j, probhibts allowance of tax penalties accruing prior to bankruptcy, the State nevertheless insits that thsi subdivision does not exempt the trustee from State laws applicable to the business he operates after bankruptcy. California considers the trustee subject to the requirements and penalties of its license and registration laws under an Act of Congress of June 18, 1934 [quoted above] * * * .
"First. Section 57, sub. j, prohibits allowance of a tax penalty against the bankrupt estate only if incurred by the bankrupt before bankruptcy by reason of his own delinquency. After bankruptcy, it does not purport to exempt the trustee from the operation of State laws, or to relieve the estate from liability for the trustee's delinquencies. * * * The fees and penalties in issue were incurred by the trustee in operating the bankrupt business, and thus were not owed by the bankrupt to the State as a 'creditor'. Therefore, regardless of other rights the State might have, it could not file proof of claim for these fees and penalties as a creditor under Section 57. And neither the tax liability nor the penalties incurred by the trustee after bankruptcy are hoverned by this Section or its subdivisions. We must look else-where than to section 57, sub. j, to determine whether the court below correctly held that California may enforce its statutory penalties against this estate.
"Second. The Act of June 18, 1934 * * * declares that a trustee in bankruptcy conducting a business, as this trustee was, 'shall * * be subject to all State and local taxes applicable to such business the same as if such ...