* Pursuant to Local Rule 47.5, the court has determined

that this opinion should not be published and is not precedent

except under the limited circumstances set forth in Local Rule

47.5.4.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

______________

No. 95-20935

Summary Calendar

______________

In the Matter of: TRANSAMERICAN NATURAL GAS CORPORATION,

Debtor.

-------------------------------------

TRANSAMERICAN NATURAL GAS CORPORATION

formerly known as GHR Energy Corporation,

Appellant,

versus

U.S. CUSTOMS SERVICE,

Appellee.

_________________________________________________________________

Appeal from the United States District Court 

for the Southern District of Texas

(CA-H-92-2509)

_________________________________________________________________

April 18, 1996

Before SMITH, BENAVIDES and DENNIS, Circuit Judges.

BENAVIDES, Circuit Judge*:

Appellant TransAmerican Natural Gas Corporation

("TransAmerican") appeals the district court's affirmance of the

bankruptcy court's final order granting Appellee U.S. Customs

Service's ("Customs") motion for reconsideration and second motion

and request for payment of reliquidated claims for duties arising

from TransAmerican's importation of four shipments of atmospheric
 

1 TransAmerican was formerly known as GHR Energy

Corporation.

 

2 The drawback applications were filed pursuant to 19

U.S.C. § 1313(b) and 19 C.F.R. § 191, which authorizes Customs to

refund duties paid on goods used in the manufacture of articles

that are later exported. 

2

residual fuel oil prior to filing for Chapter 11 bankruptcy in

1983. Finding that the reliquidated claims arose post-petition and

therefore qualify as administrative expenses, we affirm. 

BACKGROUND

TransAmerican1 filed a voluntary Chapter 11 petition on

January 26, 1983. Prior to that date, TransAmerican imported four

shipments of atmospheric residual fuel oil and paid duties assessed

by Customs for the fuel. After discovering Customs had been

overpaid, however, TransAmerican filed four drawback applications

between November 25, 1985 and January 6, 1986 requesting refunds

totaling $270,980.00.2 On September 26, 1986, Customs granted or

"liquidated" the four drawback applications and refunded

TransAmerican $270,993.11 on December 12, 1986.

However, on December 23, 1986, Customs' district director in

New Orleans reversed the original decision and "reliquidated" the

original payment on the drawback applications under 19 C.F.R. §

173.3(a). The reversal and reliquidation was based on Customs'

determination that TransAmerican had not maintained records

adequate to justify the drawbacks. See 19 C.F.R. § 199.22.

TransAmerican was notified of the reliquidation on January 30,

1987.

Meanwhile in TransAmerican's bankruptcy proceedings, notice of
3

the February 29, 1984 bar date for filing s against TransAmerican's

bankruptcy estate was published. On February 22, 1984, Customs

filed an unrelated proof of claim seeking payment for $26,458.95 in

duties on importation of fuel oil from Spain, which the bankruptcy

court allowed. 

On September 4, 1987, the bankruptcy court entered an order

confirming TransAmerican's Amended Restated Negotiated Chapter 11

Plan ("confirmation order"). The confirmation order provided for

consummation of the plan on October 19, 1987. Neither the plan nor

the confirmation order made provision for Customs' reliquidated

claims against TransAmerican.

On August 5, 1991, Customs filed a motion and request for

payment of the reliquidated claims total plus interest, which the

bankruptcy court dismissed based on a procedural defect. Customs

subsequently filed a second motion and request for payment on

August 20, 1991. The second motion was denied by the bankruptcy

court on November 22, 1991 on the equitable grounds of the doctrine

of laches because Customs inexplicably waited until August 1991 to

request payment even though it was aware that TransAmerican had

proposed and approved a plan of reorganization.

In response to the bankruptcy court's denial of the second

motion, Customs filed a motion to reconsider, arguing that laches

does not apply to the United States. The bankruptcy court granted

the motion to reconsider, vacated its November 22, 1991 order

denying Customs' second motion and request for payment, and granted

the motion and request for payment.
4

TransAmerican appealed to the district court. In a memorandum

opinion entered August 30, 1995, the district court affirmed the

bankruptcy court's final order granting Customs' second motion and

request for payment. The district court found that Customs'

reliquidated claims, arising post-petition, constituted an

administrative expense as defined by 11 U.S.C. § 503 that was

disputed because it had not been allowed or disallowed by the

confirmation date. The court further found that because a bar date

for filing an administrative expense claim is not provided in the

Bankruptcy Code, nor was one provided in TransAmerican's confirmed

plan of reorganization, the doctrine of laches could not be applied

to Customs as a matter of law.

ANALYSIS

TransAmerican contends that Customs' reliquidated claims are

not administrative expenses because they are based upon prepetition events that triggered the duty tax liability. See Matter

of Midland Industrial Service Corp., 35 F.3d 164, 166 (5th Cir.

1994), cert. denied, ___U.S.___, 115 S.Ct. 1359, 131 L.Ed.2d 216

(1995). TransAmerican argues that Customs' claims arise from the

four pre-petition shipments of fuel oil combined with Customs' preconfirmation decision to reliquidate, not from the administration

of the estate. Therefore, because only those expenses of the

debtor's estate that arise post-petition are entitled to treatment

as administrative expenses, Customs' reliquidated claims must be

disallowed.

TransAmerican next contends that payment of Customs'
5

reliquidated claims do not benefit either the estate or the

creditors. TransAmerican argues that because its only benefit

flowed from the receipt of fuel oil, which occurred pre-petition,

no benefit was conferred on its estate in bankruptcy.

TransAmerican also argues that paying these claims will make

successful implementation of the reorganization plan more

difficult.

TransAmerican's final contention is that even if Customs'

reliquidated claims can be treated as administrative expenses, they

are barred because Customs acted on it too late. TransAmerican

argues that the plan confirmation date was the deadline for Customs

to file, and because Customs failed to act until four years later,

the claims are now barred. See NL Industries, Inc. v. GHR Energy

Corp., 940 F.2d 957, 966 (5th Cir. 1991), cert. denied, 502 U.S.

1032, 112 S.Ct. 873, 116 L.Ed.2d 778 (1992).

Like the district court, we review the bankruptcy court's

findings of fact under the clearly erroneous standard, while

conclusions of law are subject to de novo review. See Matter of

Midland, 35 F.3d at 165 (citing Matter of Consolidated Bancshares,

Inc., 785 F.2d 1249, 1252 (5th Cir. 1986)).

Administrative expenses include only those expenses, rendered

post-petition, that are "actual" and "necessary" to the

preservation of the estate. See 11 U.S.C. § 503(b)(1)(A). The

words "actual" and "necessary" have been narrowly defined to

require that the debt benefit the estate and its creditors. NL

Industries, Inc., 940 F.2d at 966 (internal citations omitted).
6

Thus, in order for an expense to qualify as an administrative

expense, it must 1) occur post-petition and 2) benefit the estate

and its creditors.

We agree with the district court's finding that Customs'

reliquidated claims occurred post-petition. The reliquidated

claims, although related to the original duty tax imposed when the

fuel oil was imported pre-petition, actually arose when

TransAmerican filed its drawback applications in 1985 and Customs

erroneously refunded TransAmerican in 1986. Thus, this case is

distinguishable from the facts in Matter of Midland. In that case,

the tax, which was incurred pre-petition, was not paid prepetition. See Matter of Midland, 35 F.3d at 165. On the other

hand, Customs' original duty tax was satisfied by TransAmerican's

pre-petition payment. A new liability arose when TransAmerican

received the drawbacks from Customs in 1986. Once Customs'

reversed its decision to refund TransAmerican, the reliquidated

claims were rendered. We fail to see how a claim could possibly be

pre-petition when prior to the bankruptcy petition filing no claim

could have been made. Indeed, here the reliquidated claims could

not have been made prior to the claim bar date, February 29, 1984.

In addition, Transamerican's contention that Customs' claims

do not benefit its estate or its creditors is raised for the first

time in this appeal. Our review of the record from the district

court reveals that Transamerican's brief on appeal to the district

court did not challenge the bankruptcy court's finding that the

refunds constituted a necessary cost or expense of preserving the
7

estate. In fact, Customs' brief quotes the bankruptcy court as

stating that there was no dispute between the parties regarding

this issue. In any event, the record before us is devoid of any

contention by Transamerican that the reliquidated claims were not

actual or necessary. Therefore, we find that Transamerican may not

now raise this new argument before this Court. See Boddie v. City

of Columbus, 989 F.2d 745, 751 (5th Cir. 1993); Capps v. Humble Oil

& Refining Co., 536 F.2d 80, 81 (5th Cir. 1976) ("A party cannot

raise a new theory on appeal that was not presented to the court

below."). Consequently, we decline to address this new theory in

this appeal.

 CONCLUSION

For the reasons articulated above, we AFFIRM the judgment of

the district court affirming the bankruptcy court's final order.