Team Financial, Inc. with respect to said Taxable Year over the Member’s Separate Return liability [overpayments]; plus (b) The federal income tax refund to which the Member would have been entitled by reason of any Carryback of consolidated Net Operating Less [sic], unused credit or similar available Carryback items, if the Member had been filing separate return.
Case 09-05084 Doc# 53 Filed 04/27/10 Page 23 of 24
for the members of the Consolidated Tax Group, or prohibits Team from using the tax refund. In short, the TAA creates “ordinary contractual obligations” between Team and the members with respect to tax liability and tax refunds. Team is indebted to members of the group with respect to tax overpayments and tax refunds in those amounts specified under the TAA. As such, the relationship between Team and its members with respect to the tax refund is that of debtor and creditor. TeamBank and CNB may assert a claim against the estate for Team’s payment obligation under the TAA, but the tax refund is property of the estate.
Conclusion
Because the FDIC is not entitled to judgment as a matter of law, its motion for summary judgment is DENIED. The factual findings made in this Order are deemed established for the purposes of this adversary proceeding as provided by Fed. R. Civ. P. 56(d)(1) and Fed. R. Bankr.
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