11 U.S.C. § 108 — Extension of time

Page 36 TITLE 11—BANKRUPTCY § 108 terest, to protect trade secrets, confidential research, development, or commercial information, and to pro- tect persons against scandalous or defamatory matter. Editorial Notes AMENDMENTS 2010—Subsec. (a). Pub. L. 111–327 substituted ‘‘sub- sections (b) and (c)’’ for ‘‘subsection (b) of this sec- tion’’. 2005—Subsec. (a). Pub. L. 109–8, § 234(c), which di- rected the substitution of ‘‘subsections (b) and (c),’’ for ‘‘subsection (b),’’, could not be executed because ‘‘sub- section (b),’’ did not appear in text. Pub. L. 109–8, § 233(c), inserted ‘‘and subject to section 112’’ after ‘‘section’’. Subsec. (c). Pub. L. 109–8, § 234(a), added subsec. (c). Statutory Notes and Related Subsidiaries EFFECTIVE DATE OF 2005 AMENDMENT Amendment by Pub. L. 109–8 effective 180 days after Apr. 20, 2005, and not applicable with respect to cases commenced under this title before such effective date, except as otherwise provided, see section 1501 of Pub. L. 109–8, set out as a note under section 101 of this title. § 108. Extension of time (a) If applicable nonbankruptcy law, an order entered in a nonbankruptcy proceeding, or an agreement fixes a period within which the debt- or may commence an action, and such period has not expired before the date of the filing of the petition, the trustee may commence such action only before the later of— (1) the end of such period, including any sus- pension of such period occurring on or after the commencement of the case; or (2) two years after the order for relief. (b) Except as provided in subsection (a) of this section, if applicable nonbankruptcy law, an order entered in a nonbankruptcy proceeding, or an agreement fixes a period within which the debtor or an individual protected under section 1201 or 1301 of this title may file any pleading, demand, notice, or proof of claim or loss, cure a default, or perform any other similar act, and such period has not expired before the date of the filing of the petition, the trustee may only file, cure, or perform, as the case may be, before the later of— (1) the end of such period, including any sus- pension of such period occurring on or after the commencement of the case; or (2) 60 days after the order for relief. (c) Except as provided in section 524 of this title, if applicable nonbankruptcy law, an order entered in a nonbankruptcy proceeding, or an agreement fixes a period for commencing or con- tinuing a civil action in a court other than a bankruptcy court on a claim against the debtor, or against an individual with respect to which such individual is protected under section 1201 or 1301 of this title, and such period has not ex- pired before the date of the filing of the petition, then such period does not expire until the later of— (1) the end of such period, including any sus- pension of such period occurring on or after the commencement of the case; or (2) 30 days after notice of the termination or expiration of the stay under section 362, 922, 1201, or 1301 of this title, as the case may be, with respect to such claim. (Pub. L. 95–598, Nov. 6, 1978, 92 Stat. 2556; Pub. L. 98–353, title III, § 424, July 10, 1984, 98 Stat. 369; Pub. L. 99–554, title II, § 257(b), Oct. 27, 1986, 100 Stat. 3114; Pub. L. 109–8, title XII, § 1203, Apr. 20, 2005, 119 Stat. 193.) HISTORICAL AND REVISION NOTES LEGISLATIVE STATEMENTS Extension of time: The House amendment adopts sec- tion 108(c)(1) of the Senate amendment which expressly includes any special suspensions of statutes of limita- tion periods on collection outside bankruptcy when as- sets are under the authority of a court. For example, section 6503(b) of the Internal Revenue Code [title 26] suspends collection of tax liabilities while the debtor’s assets are in the control or custody of a court, and for 6 months thereafter. By adopting the language of the Senate amendment, the House amendment insures not only that the period for collection of the taxes outside bankruptcy will not expire during the title 11 pro- ceedings, but also that such period will not expire until at least 6 months thereafter, which is the minimum suspension period provided by the Internal Revenue Code [title 26]. SENATE REPORT NO. 95–989 Subsections (a) and (b), derived from Bankruptcy Act section 11 [section 29 of former title 11], permit the trustee, when he steps into the shoes of the debtor, an extension of time for filing an action or doing some other act that is required to preserve the debtor’s rights. Subsection (a) extends any statute of limitation for commencing or continuing an action by the debtor for two years after the date of the order for relief, un- less it would expire later. Subsection (b) gives the trustee 60 days to take other actions not covered under subsection (a), such as filing a pleading, demand, no- tice, or proof of claim or loss (such as an insurance claim), unless the period for doing the relevant act ex- pires later than 60 days after the date of the order for relief. Subsection (c) extends the statute of limitations for creditors. Thus, if a creditor is stayed from com- mencing or continuing an action against the debtor be- cause of the bankruptcy case, then the creditor is per- mitted an additional 30 days after notice of the event by which the stay is terminated, whether that event be relief from the automatic stay under proposed 11 U.S.C. 362 or 1301, the closing of the bankruptcy case (which terminates the stay), or the exception from discharge of the debts on which the creditor claims. In the case of Federal tax liabilities, the Internal Revenue Code [title 26] suspends the statute of limita- tions on a tax liability of a taxpayer from running while his assets are in the control or custody of a court and for 6 months thereafter (sec. 6503(b) of the Code [title 26]). The amendment applies this rule in a title 11 proceeding. Accordingly, the statute of limitations on collection of a nondischargeable Federal tax liability of a debtor will resume running after 6 months following the end of the period during which the debtor’s assets are in the control or custody of the bankruptcy court. This rule will provide the Internal Revenue Service adequate time to collect nondischargeable taxes fol- lowing the end of the title 11 proceedings. Editorial Notes AMENDMENTS 2005—Subsec. (c)(2). Pub. L. 109–8 substituted ‘‘922, 1201, or’’ for ‘‘922, or’’. 1986—Subsec. (b). Pub. L. 99–554, § 257(b)(1), inserted reference to section 1201 of this title. Subsec. (c). Pub. L. 99–554, § 257(b)(2)(A), inserted ref- erence to section 1201 of this title in provisions pre- ceding par. (1). Page 37 TITLE 11—BANKRUPTCY § 109 1 See References in Text note below. 2 See Adjustment of Dollar Amounts notes below. Subsec. (c)(2). Pub. L. 99–554, § 257(b)(2)(B), which di- rected the amendment of subsec. (c) by inserting ‘‘1201,’’ after ‘‘722,’’ could not be executed because ‘‘722,’’ did not appear in text. 1984—Subsec. (a). Pub. L. 98–353, § 424(b), inserted ‘‘nonbankruptcy’’ after ‘‘applicable’’ and ‘‘entered in a’’ in provisions preceding par. (1). Subsec. (a)(1). Pub. L. 98–353, § 424(a), substituted ‘‘or’’ for ‘‘and’’ after the semicolon. Subsec. (b). Pub. L. 98–353, § 424(b), inserted ‘‘non- bankruptcy’’ after ‘‘applicable’’ and ‘‘entered in a’’ in provisions preceding par. (1). Subsec. (b)(1). Pub. L. 98–353, § 424(a), substituted ‘‘or’’ for ‘‘and’’ after the semicolon. Subsec. (c). Pub. L. 98–353, § 424(b), inserted ‘‘non- bankruptcy’’ after ‘‘applicable’’ and ‘‘entered in a’’ in provisions preceding par. (1). Subsec. (c)(1). Pub. L. 98–353, § 424(a), substituted ‘‘or’’ for ‘‘and’’ after the semicolon. Statutory Notes and Related Subsidiaries EFFECTIVE DATE OF 2005 AMENDMENT Amendment by Pub. L. 109–8 effective 180 days after Apr. 20, 2005, and not applicable with respect to cases commenced under this title before such effective date, except as otherwise provided, see section 1501 of Pub. L. 109–8, set out as a note under section 101 of this title. EFFECTIVE DATE OF 1986 AMENDMENT Amendment by Pub. L. 99–554 effective 30 days after Oct. 27, 1986, but not applicable to cases commenced under this title before that date, see section 302(a), (c)(1) of Pub. L. 99–554, set out as a note under section 581 of Title 28, Judiciary and Judicial Procedure. EFFECTIVE DATE OF 1984 AMENDMENT Amendment by Pub. L. 98–353 effective with respect to cases filed 90 days after July 10, 1984, see section 552(a) of Pub. L. 98–353, set out as a note under section 101 of this title. § 109. Who may be a debtor (a) Notwithstanding any other provision of this section, only a person that resides or has a domicile, a place of business, or property in the United States, or a municipality, may be a debt- or under this title. (b) A person may be a debtor under chapter 7 of this title only if such person is not— (1) a railroad; (2) a domestic insurance company, bank, savings bank, cooperative bank, savings and loan association, building and loan associa- tion, homestead association, a New Markets Venture Capital company as defined in section 351 of the Small Business Investment Act of 1958, a small business investment company li- censed by the Small Business Administration under section 301 of the Small Business Invest- ment Act of 1958, credit union, or industrial bank or similar institution which is an insured bank as defined in section 3(h) of the Federal Deposit Insurance Act, except that an unin- sured State member bank, or a corporation or- ganized under section 25A of the Federal Re- serve Act, which operates, or operates as, a multilateral clearing organization pursuant to section 409 1 of the Federal Deposit Insurance Corporation Improvement Act of 1991 may be a debtor if a petition is filed at the direction of the Board of Governors of the Federal Reserve System; or (3)(A) a foreign insurance company, engaged in such business in the United States; or (B) a foreign bank, savings bank, coopera- tive bank, savings and loan association, build- ing and loan association, or credit union, that has a branch or agency (as defined in section 1(b) of the International Banking Act of 1978) in the United States. (c) An entity may be a debtor under chapter 9 of this title if and only if such entity— (1) is a municipality; (2) is specifically authorized, in its capacity as a municipality or by name, to be a debtor under such chapter by State law, or by a gov- ernmental officer or organization empowered by State law to authorize such entity to be a debtor under such chapter; (3) is insolvent; (4) desires to effect a plan to adjust such debts; and (5)(A) has obtained the agreement of credi- tors holding at least a majority in amount of the claims of each class that such entity in- tends to impair under a plan in a case under such chapter; (B) has negotiated in good faith with credi- tors and has failed to obtain the agreement of creditors holding at least a majority in amount of the claims of each class that such entity intends to impair under a plan in a case under such chapter; (C) is unable to negotiate with creditors be- cause such negotiation is impracticable; or (D) reasonably believes that a creditor may attempt to obtain a transfer that is avoidable under section 547 of this title. (d) Only a railroad, a person that may be a debtor under chapter 7 of this title (except a stockbroker or a commodity broker), and an un- insured State member bank, or a corporation or- ganized under section 25A of the Federal Reserve Act, which operates, or operates as, a multilat- eral clearing organization pursuant to section 409 1 of the Federal Deposit Insurance Corpora- tion Improvement Act of 1991 may be a debtor under chapter 11 of this title. (e) Only an individual with regular income that owes, on the date of the filing of the peti- tion, noncontingent, liquidated, unsecured debts of less than $250,000 2 and noncontingent, liq- uidated, secured debts of less than $750,000,2 or an individual with regular income and such indi- vidual’s spouse, except a stockbroker or a com- modity broker, that owe, on the date of the fil- ing of the petition, noncontingent, liquidated, unsecured debts that aggregate less than $250,000 2 and noncontingent, liquidated, secured debts of less than $750,000 2 may be a debtor under chapter 13 of this title. (f) Only a family farmer or family fisherman with regular annual income may be a debtor under chapter 12 of this title. (g) Notwithstanding any other provision of this section, no individual or family farmer may be a debtor under this title who has been a debt- or in a case pending under this title at any time in the preceding 180 days if— (1) the case was dismissed by the court for willful failure of the debtor to abide by orders of the court, or to appear before the court in proper prosecution of the case; or