Robert P. McIntosh 

Assistant United States Attorney 

919 East Main Street, Suite 1900 

Richmond, Virginia 23219 

Telephone: (804) 819-7404 

Facsimile: (804) 771-2316 

E-Mail: Robert.McIntosh@usdoj.gov 

Counsel for the United States of America

 IN THE UNITED STATES BANKRUPTCY COURT 

 FOR THE EASTERN DISTRICT OF VIRGINIA 

 RICHMOND DIVISION 

 

IN RE: ) 

 ) CASE NO. 20-34576-KLP 

LEWIS E. WILKERSON, JR., ) CHAPTER 11 

 ) 

 ) 

Debtor. ) 

OBJECTION TO DISCLOSURE STATEMENT AND TO 

SUBCHAPTER V, CHAPTER 11 PLAN, 

NOTICE OF OBJECTION TO CONFIRMATION OF PLAN 

AND NOTICE OF SCHEDULED HEARING ON THIS OBJECTION

1. Notice of Objection and Notice of Hearing 

Your rights may be affected. You should read these papers carefully and discuss 

them with your attorney, if you have one in this bankruptcy case. (If you do not have an 

attorney, you may wish to consult one.)

PLEASE TAKE NOTICE THAT the hearing at which the Court will consider 

Confirmation of the Plan (the “Confirmation Hearing”) will commence on [to be 

scheduled by Debtor upon separate notice], before the Honorable Keith L. Phillips, in the 

United States Bankruptcy Court for the Eastern District of Virginia by remote hearing. 

REMOTE HEARING INFORMATION: 

Due to the COVID−19 public health emergency, no in-person hearings are being held. 

This hearing will take place remotely through Zoom on the date and time scheduled 

herein. 

To appear at the hearing, you must send, by email, a completed request form (the “Zoom 

Request Form”), which is available on the Court's internet website at 

www.vaeb.courts.gov, on the page titled, “Temporary Emergency Provisions Regarding

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ZoomGov Remote Proceeding Access Information.” Email your completed Zoom 

Request Form to the email address listed for the Judge assigned to the case. Following 

receipt of your Zoom Request Form, Court staff will respond to the email address from 

which the request was submitted with additional information on how to participate 

through Zoom. 

***The email address shall be used only to submit Zoom Request Forms. No other 

matters or requests will be considered by Court staff, and under no circumstances will 

any such matters or requests be brought to the Judge’s attention. Failure to comply with 

these instructions may result in appropriate action, including but not limited to the 

imposition of sanctions.*** 

PLEASE NOTE: You MUST submit the Zoom Request Form no later than two (2) 

business days prior to this hearing. Any documentary evidence the parties wish to present 

at the hearing must be filed with the Court in advance of the hearing. 

2. Objection to Disclosure Statement and Confirmation of Chapter 11 Plan 

The United States of America, by and through undersigned counsel, on behalf of its 

Internal Revenue Service, hereby objects to confirmation of the proposed Chapter 11 Plan on the 

following grounds: 

The Debtor filed a Chapter 11 Petition in the jointly administered case on November 17, 

2020. The Internal Revenue Service timely filed proofs of claim, the current amended proof of 

claim being set forth as follows: 

Date of Claim September 23, 2021 

Secured Amount $361,407.81 

Priority Amount $63,038.90 

General Unsecured Amount --- 

Total Amount of Claim $424,446.71 

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1. Inconsistency of Terms Regarding the Treatment of Priority Tax Claims. The 

Internal Revenue Service objects to Sections 3.03 and 4.01 of the Plan [Dkt No. 163 at ECF 

pages 25-26]. Section 3.03 provides: 

3.03 Priority Tax Claims. Each holder of a [priority] tax claim will be paid in full 

within ten (10) days of the effective date of the plan. 

Id. (emphasis added). 

Section 4.01 of the Plan provides: 

4.01 Claims and interests shall be treated as follows under this Plan: 

Plan, Dkt No. 163, p. 26. Creditors holding priority tax claims cannot determine when payment 

of their claims will be made under the current plan. 

Proposed language to resolve the objection: Debtor will pay the secured and priority 

claims of the Internal Revenue Service, as filed and allowed, together with applicable interest, 

within 30 days after the Effective Date. 

2. Inability of the Debtor to Make Payments Under the Plan. Section 1190(1)(C) 

requires that the Plan include “projections with respect to the ability of the debtor to make 

payments under the proposed plan.” 11 U.S.C. § 1190(1)(C). To the extent that payment of 

creditors under the Plan is dependent upon “the closing of the contract with Diode Ventures,” see 

id., the Plan cannot be confirmed because there currently is no closing date, and no reasonable 

prospect for a closing date to be determined before confirmation. The Plan advances the 

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prospect of a sale of assets to pay creditors, but the contract under which such sale is to occur has 

been withheld from creditors. Compare Plan, ECF page 23 (“[Debtor] obtained a contract to sell 

certain parcels of real estate for the construction of a solar panel farm. A copy of the contract is 

attached hereto as Exhibit B.”) with Plan, ECF page 32 (“Access to Exhibit B has been 

Restricted”). 

Indeed, doubt exists as to whether the sale ever will occur at all. See “Limited Objection 

to the Disclosure Statement” by Heritage Trail Solar, LLC, Dkt No. 164 (citing purchase option 

that extends to August 31, 2023 (ECF p. 3, ¶6), which can be extended for an additional six 

months (ECF p. 3, fn. 3); the requirement for “environmental studies and transmission generation 

interconnection studies” (ECF p. 3, ¶8); and other “third-party studies, including those required 

and performed by state and regional regulatory bodies” (ECF p. 4, ¶9); among others). 

3. Treatment of Secured Tax Claims. The Plan does not recognize any portion of 

the claim of the Internal Revenue Service as “secured.” The claim is secured in the amount of 

$361,407.81. 

Proposed language to resolve the objection: Debtor will pay the secured claim of the 

Internal Revenue Service, as filed and allowed, less adequate protection payments paid to date of 

confirmation, with interest accruing from the date of confirmation at the rate of three percent 

(3%) per year1 commencing on the Effective Date. The Internal Revenue Service shall retain the 

liens securing its secured claim until paid. 

4. Treatment of Administrative Claims. The Disclosure Statement appears to require 

that the Internal Revenue Service file administrative tax claims. See Dkt 163, ECF p. 2 (“Thirty 

(30) days after the Effective Date, any party in interest shall file requests for payment of 

1

 Or the rate in effect on the date of confirmation. 

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Administrative Expense Claims, including Fee Claims, not otherwise the subject of prior bar 

dates or pending Notice of an Administrative Expense. Unless otherwise ordered by the 

Bankruptcy Court, the Confirmation Order shall operate to set a bar date for the filing of any 

such requests as not later than thirty (30) days after the Effective Date.”). The Plan is not clear 

as to an administrative claims bar date. 

Proposed language to resolve the objection: Debtors will fully comply with federal tax 

laws by timely filing all required post-petition tax returns when due or timely filing a request for 

extension, by making all required tax deposits and/or estimated tax payments in full when due, 

and by paying in full all taxes owed to the Internal Revenue Service (including all tax, interest, 

and penalties accrued through the date of payment) in the ordinary course of business. Failure to 

do so may constitute a material default under the terms of the Plan. 

Additionally, at the discretion of the Internal Revenue Service and notwithstanding 

anything in the Plan or this Confirmation Order to the contrary, the Internal Revenue Service is 

authorized (but shall not be required) to file proofs of claim for Administrative Claims for taxes 

incurred by the Debtors following the Petition Date, which shall be paid in accordance with 

Sections 503(b)(1)(D), 503(b)(1)(B) and (C), and 1129(a)(9)(A) of the Bankruptcy Code (11 

U.S.C.) or, if not due on the Effective Date, in the ordinary course of business in accordance with 

applicable law. The Internal Revenue Service shall not be required to seek or obtain prior 

authorization for filing proofs of such Administrative Tax Claims. 

 If Debtors fail to pay any Administrative Tax Claims on or before the Effective Date in 

accordance with section 1129(a)(9)(A) or, if not due on the Effective Date, in the ordinary course 

of business in accordance with applicable law, then the Internal Revenue Service may enforce 

collection of such Administrative Tax Claims by any means authorized by non-bankruptcy law, 

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without further recourse to the Bankruptcy Court, as well as seek any other remedies under the 

Default Provisions of the Plan or Confirmation Order. 

WHEREFORE, the United States objects to the adequacy of the Disclosure Statement, 

objects to the Chapter 11 Plan, and requests that confirmation of the proposed Plan be DENIED; 

or alternatively, that it be amended to address the Service’s objections, or that provisions be 

included in the Order of Confirmation, to be endorsed by counsel for the Internal Revenue 

Service. 

Respectfully submitted, 

RAJ PAREKH 

Acting United States Attorney 

By: /s/ Robert P. McIntosh .

Robert P. McIntosh 

Assistant United States Attorney 

 

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CERTIFICATE OF SERVICE 

I hereby certify that I will on October 11, 2021 serve the foregoing by causing true and correct 

copies thereof to be placed in the United States mail, postage prepaid, addressed as follows: 

Lewis E. Wilkerson, Jr. 

PO Box 270 

Keysville, VA 23947 

Debtor 

I hereby certify that the foregoing is being filed October 8, 2021 with the United States 

Bankruptcy Court electronically in the CM/ECF system. Notice of this filing will be sent to all 

Notice Parties by operation of the Court's electronic filing system. Parties may access this filing 

through the Court's system. Parties currently listed by the CM/ECF system to receive electronic 

notice in this case include counsel representing the debtor/debtor-in-possession, the proponent of 

the plan, and the United States Trustee as follows: 

Counsel to the Debtors 

Robert A. Canfield 

Canfield Wells, LLP 

4124 E. Parham Road 

Henrico, VA 23228 

Email: bcanfield@canfieldbaer.com 

Subchapter V Trustee 

Peter J. Barrett 

Kutak Rock LLP 

901 East Byrd Street, Suite 1000 

Richmond, VA 23219 

Email: peter.barrett@kutakrock.com

Office of the U.S. Trustee

Kathryn R. Montgomery 

Office of the United States Trustee 

701 East Broad Street, Ste. 4303 

Richmond, VA 23219 

Email: Kathryn.Montgomery@usdoj.gov 

Date: October 8, 2021 

 /s/ Robert P. McIntosh .

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