Objection of Trustee to Proof of Claim No. 5 Filed by the Sheriff of Hardy County — In re Panthera Enterprises, LLC (Dkt. 390.1)

Summary

In In Re: Panthera Enterprises, LLC, Case No. 19-00787, Chapter 7, in the United States Bankruptcy Court for the Northern District of West Virginia, Aaron C. Amore, Chapter 7 Trustee, files an objection to proof of claim No. 5 filed by the Sheriff of Hardy County. The Trustee states that the Sheriff's claim for the total amount of $45,656.32 appears to be an ad valorem tax claim for personal property that the Debtor did not own or possess, and is not a priority claim. The Trustee asserts that ad valorem taxes are secured by a lien and are therefore secured claims. The Trustee asks the court to grant the objection. The certificate of service is dated 25th August 2021.

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UNITED STATES BANKRUPTCY COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA

IN RE:

PANTHERA ENTERPRISES, LLC

Case No. 19-00787

Debtor.

Chapter 7

OBJECTION OF TRUSTEE TO
PROOF OF CLAIM No. 5 FILED BY THE  SHERIFF OF HARDY COUNTY

Now comes, Aaron C. Amore, Chapter 7 Trustee, for the Estate of Panthera
Enterprises, LLC (“Debtor”) and files his Objection to the proof of claim of Sheriff Of
Hardy County No. 5, pursuant to Bankruptcy 11 U.S.C §§501 & 507 and
Bankruptcy Rule 3001.
The Trustee objects as the claim is not a priority claim pursuant to 11 U.S.C.
§507(a)(8). Further, it appears that the claim asserted is an ad valorem tax claim as
it relates to personal property that was not owned and/or possessed by the Debtor.
The Trustee asserts that the Debtor is not liable for the payment of this claim and
that the Debtor did not possess, control and/or sell any personal property that
would form the basis of the debt asserted in claim no. 5.

The Sheriff of Hardy County, West Virginia (hereafter “Sheriff”) filed a timely
proof of claim, no. 5 claiming against Panthera Enterprises, LLC f/k/a TenX Group,
LLC for the total amount of $45,656.32. The Sheriff asserted said debt(s) are
entitled priority pursuant to 11 U.S.C. §507(a)(8). The basis of the claim appears to
be the ad valorem assessment of personal property taxes for certain vehicles,
inventory and equipment and not an unsecured priority claim. Attached to the proof
of claim are personal property detail screen shots for the tax years 2016, 2017, 2018
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and 2019. The attachments show the name of the taxpayer as Panther Training
Center c/o Rob Duncan for years 2016 & 2017. For years 2018 it lists the taxpayer
as Panthera Training Center. For tax year 2019 it lists the taxpayer as Panthera
Training Center c/o James Punelli.

West Virginia Code §11-3-1 (c) provides that; “[t]he taxes upon all property
shall be paid by those who are the owners thereof on the assessment date whether it
be assessed to them or others.” Further, “(f) (4) ‘Taxpayer’ means the owner and any
other person in whose name the taxes on the subject property are lawfully
assessed.” West Virginia Code §11-3-8 provides that; “[p]ersonal property
mortgaged or pledged shall, for the purpose of taxation, be deemed the property of
the party who has the possession…” Further, West Virginia Code §11A-1-2
provides;
“[t]here shall be a lien on all real property for the taxes assessed thereon, and
for the interest and other charges upon such taxes, at the rate and for the
period provided by law, which lien shall attach on July 1, 1961, and each July
1 thereafter for the taxes payable for the ensuing fiscal year.”

Ad valorem taxes are secured by a lien on the property taxed. By definition,
they  are  secured  claims  and  not  priority claims under 11 U.S.C. §507(a)(8),
which only deals with unsecured claims. Interests in property are created and
defined under state law, and tax liens, like other liens, should generally pass
through a bankruptcy unaffected.  Butner v. U.S., 440 U.S. 48, 55 (1979); Dewsnup
v. Timm, 502 U.S. 410, 418. The Sheriff possesses a lien pursuant to State law as
against the personal property identified on the returns filed for each respective
year. As a secured creditor, the Sheriff may pursue remedies available under law to
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liquidate said property.
The Trustee asserts that Panthera Training Center, LLC (hereafter “PTC”) is
the entity that possessed the personal property during tax years 2016 and 2017. In
June of 2018, prior to the assessment deadline of July 1, 2018, PTC conveyed all
personal property it owned to SMI, LLC and transferred possession of all such
personal property to Panthera Training, LLC pursuant to its lease agreement
executed June 1, 2018. For the tax years 2016 & 2017 the taxpayer would have been
PTC and/or Rob Duncan as provided by law. For 2017 it was PTC and 2018 it was
PTC and/or James Punelli. For 2019 Panthera Training appears to have possessed
the personal property to the extent that it still existed and was transferred to it.
The Debtor has never owned or possessed the personal property identified in
claim no. 5. It was not an asset of the estate nor subject to the sale of assets
approved by this Court.

Wherefore, the Trustee prays this Court grant his objection to the proof of
claim of Sheriff of Hardy County No. 5 and grant any further relief this Court
deems just and necessary.

Aaron C. Amore, Trustee

Panthera Enterprises, LLC

/s/ Aaron C. Amore

Aaron C. Amore, Esq. WVSB# 6455
AMORE LAW, PLLC
206 West Liberty Street
P.O. Box 386
Charles Town, WV 25414
Telephone:  (304) 885-4111
Facsimile:  (866) 417-8796

E-mail:  aaron@amorelaw.com
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CERTIFICATE OF SERVICE

I hereby certify that the foregoing OBJECTION OF TRUSTEE TO
PROOF OF CLAIM No. 5 FILED BY THE  SHERIFF OF HARDY COUNTY,
was served upon the following individuals at the addresses listed below, via
CM/ECF and/or email on this 25th August 2021 to the following:
Via Email:
Kelly T. Smith ksmith@sek.com
Jack Lantzy jlantzy@sek.com
Mark A. Lindsay mlindsay@bernsteinlaw.com
Rob Duncan tarpon777@yahoo.com
Rob Duncan  as manager of TR&L tkelsey@woodsrogers.com
Bruce & Stacie Hardy bsrhardy@comcast.net
Sheriff of Hardy County Tammy.davy@hardycounty.com

CM/ECF
Debra Lee Allen     dallen@spilmanlaw.com
Aaron C. Amore     aaron@amorelaw.com,
jackie@amorelaw.com;c.ar70274@notify.bestcase.com;alaina@amorelaw.com Aaron
C. Amore     amorewvt@gmail.com,
aca@trustesolutions.net;jackiewvt@gmail.com;annwvt@gmail.com
Robert S. Bernstein rbernstein@bernsteinlaw.com,
wirick@bernsteinlaw.com;cwirick@ecf.courtdrive.com;rbernstein@ecf.courtdrive.com
Elizabeth B. Carroll     elizabeth_carroll@vawb.uscourts.gov
Julia A. Chincheck     jchincheck@bowlesrice.com
Spencer D. Elliott     selliott@lgcr.com
Douglas Kahle     dkahle@basnightkinser.com
Gary O. Kinder     gary.o.kinder@usdoj.gov
Travis Alan Knobbe     tknobbe@spilmanlaw.com, dambrose@spilmanlaw.com
Sabrina B. Lee     sabrina_lee@vawb.uscourts.gov
William J. Leon     jayleon@comcast.net
Salene Rae Mazur Kraemer     skraemer@bernsteinlaw.com,
salene@ecf.courtdrive.com,
John J. Richardson     jrichardson@bernsteinlaw.com
Zachary James Rosencrance     zrosencrance@bowlesrice.com,
ajones@bowlesrice.com
Anita M. Swaton     Anita_Swaton@wvnb.uscourts.gov
United States Trustee     ustpregion04.ct.ecf@usdoj.gov
Eric Michael Wilson     eric.m.wilson@wv.gov, lora.l.rutledge@wv.gov
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Manual Notice List
Notice was not mailed to the parties below as no addresses were provided. To the
extent the Trustee has email addresses the below notice parties, they were emailed.
Rob Duncan
Manager/Duncan Development Group, LLC
Rob Duncan
Manager/TR&L, LLC,
a Virginia Limited Liability Company
Successor to SMI, LLC,
a Virginia Limited Liability Company

Bruce Hardy
Stacie Hardy
Anthony McIntyre
Timothy Miller

Via U.S. Mail

Sheriff of Hardy County, West Virginia
204 Washington St
Moorefield, WV 26836

/s/ Aaron C. Amore

Aaron C. Amore, Esq.

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