KSB

Judge Somers

03-16858 Kirby (Doc. # 264)

In Re Kirby, 03-16858 (Bankr. D. Kan. Sep. 1, 2011) Doc. # 264

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SO ORDERED.
SIGNED this 31 day of August, 2011.


________________________________________
Dale L. Somers
UNITED STATES BANKRUPTCY JUDGE

Opinion designated for on-line use, but not print publication
IN THE UNITED STATES BANKRUPTCY COURT
FOR THE DISTRICT OF KANSAS


In re:
JAMES BLAIR KIRBY,
DEBTOR.
CASE NO. 03-16858
CHAPTER 12

MEMORANDUM OPINION AND JUDGMENT DENYING
DEBTOR'S MOTION FOR ALLOWANCE OF ADMINISTRATIVE EXPENSES


Following hearing on June 21, 2011, and after opportunity to file additional briefs,
the Court took under advisement Debtor's Motion for Allowance of Administrative
Expenses (hereafter "Motion"). Debtor appeared by Dan W. Forker, Jr., of Forker Suter
LLC. PHI Financial Services, Inc. (hereafter "PHI") opposed the Motion and appeared by

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William A. Wells, of Young, Bogle, McCausland, Wells, & Blanchard, P.A. There were
no other appearances. The Court has jurisdiction.1

The material facts are uncontroverted.2 On or about November 9, 2005, after this
case was filed, PHI, without knowledge of the bankruptcy, extended credit to the Debtor
for the purpose of acquisition of farm products used in Debtor's farming operation and
necessary for such operation. The remaining balance owed PHI is approximately
$19,000. Debtor filed the Motion pursuant to § 503(a) for allowance of the balance as an
administrative expense for the express purpose of discharging the claim. PHI objects,
asserting the Debtor is not a proper person to seek allowance of the claim as an
administrative expense.

The Court agrees with PHI and finds the Debtor is not the proper party to seek
allowance of PHI's right to payment as an administrative expense. Section 503(a) of the
Code provides "an entity" may file a request for payment of an administrative expense.
"Entity" is defined by § 101(15) as including a "person, estate, trust, governmental unit,

1 This Court has jurisdiction pursuant to 28 U.S.C. § 157(a) and §§ 1334(a) and (b) and the
Standing Order of the United States District Court for the District of Kansas that exercised authority
conferred by § 157(a) to refer to the District’s Bankruptcy judges all matters under the Bankruptcy
Code and all proceedings arising under the Code or arising in or related to a case under the Code,
effective July 10, 1984. A motion for allowance of administrative expenses is a core proceeding
which this Court may hear and determine as provided in 28 U.S.C.§ 157(b)(2)(A) and (B). There
is no objection to venue or jurisdiction over the parties.

2 The facts are stated in Debtor's Motion (dkt. 245) and PHI's response (dkt. 250). Although
having opportunity to do so, neither party filed a pleading objecting to the facts so stated.

2

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and United States trustee." This would appear to include the Debtor. However, case law
is to the contrary.

 In McNitt,3 the court held that the debtor was not the proper party to file a motion
for allowance of a federal tax claim as an administrative expense. Finding that § 503(a)
did not adequately explain "whether one not entitled to payment may request payment on
behalf of another,"4 the court relied upon the legislative history, which states:
"Subsection (a) of [§ 503] permits administrative expense claimants to file with the court
a request for payment of an administrative expense.”5 This history was found to make it
“clear that only the entity possessing the administrative claim may request payment as an
administrative claim.”6

This Court agrees with the McNitt decision. Only PHI, not the Debtor, may move
pursuant to § 503(a) for administrative claim treatment of Debtor’s obligation to PHI.
The Debtor’s Motion is denied.

The foregoing constitute Findings of Fact and Conclusions of Law under Rules
7052 and 9014(c) of the Federal Rules of Bankruptcy Procedure which make Rule 52(a)
of the Federal Rules of Civil Procedure applicable to this matter.

3 In re McNitt, 170 B.R. 706 (D. Idaho 1994).

4 Id. at 707.

5 Id., quoting S. Rep. No. 95-989, 95th Cong., 2nd Sess. at p. 66.

6 Id. at 707.

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JUDGMENT.

Judgment is hereby entered denying Debtor’s Motion for Allowance of
Administrative Expenses. The judgment based on this ruling will become effective when
it is entered on the docket for this case, as provided by Federal Rule of Bankruptcy
Procedure 9021.

IT IS SO ORDERED.

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