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In re Bulk Petroleum Corp.

United States Court of Appeals, Seventh Circuit

July 31, 2015


Argued November 3, 2014

Appeal from the United States District Court for the Eastern District of Wisconsin. No. 11-cv-575 - C.N. Clevert, Jr., Judge.

For In the Matter of: BULK PETROLEUM CORPORATION, Bulk Petroleum Kentucky Properties LLC, Debtors - Appellants: Joseph R. Cincotta, Attorney, Kerkman & Dunn, Milwaukee, WI; Jerome R. Kerkman, Attorney, Maier, Mcilnay & Schmitt, Grafton, WI.

For Bank of Sun Prairie, Intervenor: Edward A. Corcoran, Attorney, Neider & Boucher, S.C., Madison, WI.

For Kentucky Department of Revenue, Defendant - Appellee: Raymond Campbell Connell, Attorney, Frank Dempsey, Attorney, Kentucky Department of Revenue, Frankfort, KY.

For OFFICIAL COMMITTEE OF UNSECURED CREDITORS OF BULK PETROLEUM CORPORATION, for the Benefit of Class 7A Creditors, Intervenor: Francis J. Lawall, Attorney, Pepper Hamilton Llp, Philadelphia, PA; Matthew J. Lund, Attorney, Pepper Hamilton Llp, Southfield, MI.

Before WOOD, Chief Judge, and EASTERBROOK and HAMILTON, Circuit Judges.


Wood, Chief Judge.

In this case, we find ourselves in the unusual position of needing to sort out questions relating to the way in which the Commonwealth of Kentucky taxes gasoline. Problems have arisen in a bankruptcy case in the Eastern District of Wisconsin, which is why this matter is on our table, not that of the Sixth Circuit or Kentucky's courts. The debtor, Bulk Petroleum Corporation (Bulk), has argued in an adversary proceeding that it improperly paid an excise tax when it purchased gasoline from suppliers in Louisville between November 1, 2006, and August 3, 2007. It is seeking a refund from the Kentucky Department of Revenue (KDOR). For its part, KDOR maintains that because Bulk was unlicensed during that period, it was not a " taxpayer" within the meaning of the state statute and thus is not entitled to a refund from the state. Before we can resolve that dispute, we must ensure that we have appellate jurisdiction over the case. We conclude that we do. On the merits, we conclude that Bulk should get its refund. We therefore reverse the district court's decision and remand for entry of judgment in Bulk's favor.


The district court described Bulk as " a large regional gasoline distributor and gas station owner with approximately 58 gas stations in Kentucky" ; Bulk also had gasoline stations in Southern Indiana and Tennessee. Typically, Bulk leases a station and all necessary equipment to a tenant-operator, who handles all sales and other business for the station. Bulk receives monthly rent from the operator plus payment for all deliveries of gasoline to the station. Until October 30, 2006, Bulk held a license from Kentucky as a gasoline and special fuels dealer. KDOR revoked Bulk's license on October 31, 2006, after it asked Bulk to post additional security and Bulk failed to do so. This did not mean that Bulk had to stop doing business in Kentucky; the change affected only the way in which Kentucky collected its fuel tax, and it raised the question presented in this case: from whom was that tax collected? (We describe Kentucky's taxation scheme in more detail below.)

Although Bulk had the right to appeal the revocation of its license to the Kentucky Board of Tax Appeals, it did not do so. Instead, it kept track of the alleged tax payments it was making to its upstream suppliers (Marathon and BP) and repeatedly sought refunds from KDOR for those payments. In doing so, it relied on the separate line-item for the tax in the invoices it received from its suppliers. On May 10, 2007, a KDOR employee emailed Bulk informing the company that " only a licensed dealer is allowed to purchase product without the Kentucky tax for export. If your license is reinstated and all outstanding tax liabilities are satisfied, consideration will be given to your refund request." Bulk regained its license from the state on August 3, 2007. (We will refer to the time between October 31, 2006, and August 3, 2007, as the Revocation Period.)

As we noted, during the Revocation Period, Marathon and BP were including on their bills to Bulk a line item representing the Kentucky fuel tax on all of the gasoline Bulk bought from them; Bulk was turning those funds over to Marathon and BP even for gasoline that was later delivered to customers outside Kentucky. (It appears that all of the gasoline at issue here did move through terminals in Louisville, Kentucky; we discuss the significance of this fact below.) Some of the gasoline Bulk purchased did stay in-state, but much of it went to Bulk's stations in Tennessee and Indiana. Bulk maintained that the latter gasoline was not subject to Kentucky's fuel tax.

Bulk's financial problems did not end with the reinstatement of its Kentucky license. Approximately 18 months later, on February 18, 2009, it sought bankruptcy protection under chapter 11 in the United States Bankruptcy Court for the Eastern District of Wisconsin. Bulk filed an adversary proceeding against KDOR on May 8, 2009, seeking a refund of the excise taxes it allegedly paid while it had no license. Kentucky in the meantime had filed a proof of claim against Bulk in the bankruptcy proceeding; Bulk objected to its claim, and that matter was consolidated with the adversary proceeding. Bulk wanted over $1.3 million, but at this point it is undisputed that KDOR is entitled to offset that amount. The net amount Bulk is seeking is $774,961.30.

The bankruptcy court ruled in favor of Bulk. It found that it was Bulk that had paid the taxes, and that the taxes were not appropriately collected for gasoline that was consigned to destinations outside Kentucky. On appeal, the district court disagreed with the bankruptcy court's first premise: that the incidence of the tax fell on Bulk. As the district court saw it, Bulk never paid any money to KDOR during the Revocation Period; it just paid a higher price to its suppliers, Marathon and BP. In addition, the court found insufficient evidence to show that Marathon and BP were collecting the tax on Bulk's behalf. It thus reversed the bankruptcy court's decision and remanded for further proceedings. Bulk has now appealed to us. It is supported in that effort by two intervenors that appear in this court with our permission: the Official Committee of Unsecured Creditors of Bulk and the Bank of Sun Prairie.


We begin with jurisdiction. " Jurisdictional questions are pervasive in bankruptcy cases because of the tension between the 'finality' rule of § 158(d) and the fact that each bankruptcy proceeding contains many claims and problems, each of which may come to a final conclusion before the estate has been wrapped up." In re Morse Elec. Co., 805 F.2d 262, 264 (7th Cir. 1986). There was no problem here with the bankruptcy court's jurisdiction over Bulk's bankruptcy claim. See 28 U.S.C. § § 157(a), 1334. And the bankruptcy court had jurisdiction over Bulk's adversary proceeding against KDOR. This was a core proceeding involving " the allowance or disallowance of claims against the estate," and thus fell comfortably within the scope of 28 U.S.C. § 157(b)(1), (b)(2)(B), and (b)(2)(E). Furthermore, the bankruptcy court may " determine the amount or legality of any tax" in a bankruptcy proceeding. As we have observed, " [t]he Bankruptcy Code expressly authorizes bankruptcy courts to decide tax issues, 11 U.S.C. § 505(a)(1), and although state taxes are not specified, the courts have interpreted the statute to cover them." In re Stoecker, 179 F.3d 546, 549 (7th Cir. 1999), aff'd sub nom. Raleigh v. Ill. Dep't of Revenue, 530 U.S. 15, 120 S.Ct. 1951, 147 L.Ed.2d 13 (2000).

So much for the bankruptcy court, which formally is a unit of the district court. See 28 U.S.C. § 151. What about the district court's jurisdiction? The district courts have broad jurisdiction over the rulings of the bankruptcy courts. See 28 U.S.C. § 158(a). Their authority extends not just to " final judgments, orders, and decrees," id. § 158(a)(1), but also to a wide range of interlocutory orders, id. § 158(a)(2)-(3) and concluding text. The bankruptcy court's resolution of the Kentucky tax dispute was appealable to the district court whether or not it was " final" in the strong sense of the term.

That brings us to our own appellate jurisdiction. With an exception for interlocutory orders that does not apply here, see 28 U.S.C. § 158(d)(2), the courts of appeals have jurisdiction only over " all final decisions, judgments, orders, and decrees entered under subsections (a) and (b) of this section." (Because the Seventh Circuit has not established a Bankruptcy Appeals Panel pursuant to § 158(b), that possibility may be disregarded here.) The question before us is whether the district court's resolution of the tax dispute between Bulk and KDOR qualifies as a " final judgment" for purposes of § 158(d)(1). Both parties have urged us to answer that question in the affirmative and have offered their reasons for coming to that conclusion. Nevertheless, we have an independent duty to ensure that we have jurisdiction. See, e.g., ITOFCA, Inc. v. MegaTrans Logistics, Inc., 235 F.3d 360, 363 (7th Cir. 2000); Horwitz v. Alloy Automotive Co., 957 F.2d 1431, 1435 (7th Cir. 1992). We therefore turn directly to that task.

Bankruptcy cases have their own jurisdictional statute for a good reason: they are not simple " A B versus C D" matters. There is always an umbrella proceeding in which the bankruptcy court supervises the process of ascertaining what assets are in the debtor's estate and how they should be distributed to the creditors, but as § 157(b) and (c) recognize, there are also myriad ancillary lawsuits that must be resolved as part of that process. Some, like the case before us, are labeled " core" proceedings, § 158(b)(2), and others are " otherwise related" under the Bankruptcy Code, § 158(c). (This distinction does not conclusively resolve the question whether a bankruptcy judge has the power to enter a final judgment in the proceeding. See Stern v. Marshall, 131 S.Ct. 2594, 180 L.Ed.2d 475 (2011). Since we are reviewing a district court's judgment, however, Stern does not affect our case.) Although it would have been possible as a theoretical matter to require resolution of every core proceeding, or even every non-core proceeding as well, before appellate jurisdiction in the court of appeals would exist, that has never been the understanding of § 158(d)(1). Instead, as the Supreme Court recently reminded us, " [t]he current bankruptcy appeals statute ... authorizes appeals as of right not only from final judgments in cases but from final judgments, orders, and decrees ... in cases and proceedings." Bullard v. Blue Hills Bank, 135 S.Ct. 1686, 1692, 191 L.Ed.2d 621 (2015) (citation and quotation marks omitted). We look therefore to see if the district court finally disposed of a discrete dispute within the larger case. See id.

We conclude that it did. The court rejected Bulk's argument outright, ruling that " Bulk offered no evidence that it paid any money to the KDOR. Nor did it offer any evidence that Marathon, as the licensed dealer responsible for paying the tax, or Bulk, as the unlicensed dealer, rebutted the statutory presumption [that all gasoline was consigned to destinations within Kentucky]." This, it concluded, was fatal to Bulk's claim for a tax refund--in other words, its claim that an additional $774,961.30 should be part of its bankruptcy estate. (This explains why both of the intervening parties--the Official Committee of Unsecured Creditors and Bank of Sun Prairie--support Bulk's position.) If that is all there is to it, then it is easy to see that we have a final disposition that is reviewable by this court. Our qualms stemmed in part from a footnote Bulk dropped in its opening brief saying that it " reserved and would seek on remand to pursue a secondary argument regarding the ...

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