On June 21, 2021, the US Trustee’s Program (USTP) will implement new rules regarding the periodic reporting required in non-small business Chapter 11 bankruptcy cases.
The new USTP process requires that Chapter 11 debtors in possession (DIPs) and Trustees file monthly reports utilizing a uniform, data-embedded report form.
The uniformity of the new USTP reporting form is the innovation of the rule change. Previously, Chapter 11 Trustees and DIPs fulfilled reporting obligations with more than 150 different forms, depending on the local practice of the region in which the filing occurred.
The USTP’s new rule aims to streamline the reporting process, ensuring clarity of the information conveyed as well as compliance.
Specific Requirements of the New USTP Chapter 11 Reporting Form
The new uniform non-small business Chapter 11 reporting form must be completed by every DIP or by the Chapter 11 Trustee, if one has been appointed.
The form requires that only the financial information of the debtor that filed the Chapter 11 bankruptcy be reported. This is true even where the debtor and affiliated entities maintain financial information and records in a consolidated manner.
It must be filed with the Bankruptcy Court between the 21st day and the last day of the month following the reporting timeframe in question. Local USTP guidelines may establish a specific deadline.
Depending on when in a given month the Chapter 11 case is filed, the initial reporting form will cover one reporting period or another.
Cases filed on 1st through the 20th day of a month will cover a reporting period from the petition filing date through the last date of the month.
Cases filed after the 21st day of a month will cover a reporting period from the petition filing date through the last date of the month following the month in which the petition was filed.
The reporting form must be provided to the US Trustee, each official committee and its counsel, and any taxing authority if local rule requires it.
The DIP or Trustee must disclose the following information in the reporting form:
- Information regarding the debtor’s industry classification;
- The length of time that the Chapter 11 bankruptcy case has been pending;
- The debtor’s number of full-time employees as of the date of commencement of the Chapter 11 case and within the reporting period;
- Cash receipts, disbursements, and profitability for the reporting period in question and in total since case commencement;
- The filing of tax returns and the specifics of tax payments;
- All court-approved professional fees for the period in question and since the date of Chapter 11 commencement;
- Any Chapter 11 plan of reorganization filed.
The debtor may additionally be required by the US Trustee to submit a variety of financial documentation as required, including statements of cash receipts, balance sheets, accounts receivable aging, post-petition liabilities, schedules of payments, and more.
These items are not filed with the court along with the reporting form, however.
All debtors must utilize an accrual basis of accounting in completing the new reporting form, regardless of whether, prior to the Chapter 11 filing, a cash-basis method was used.
Debtors are required to follow GAAP in the completion of the form. All supporting schedules must adhere to general accounting principles.
The USTP Chapter 11 operating reports and their corresponding instructions can be found at: https://www.justice.gov/ust/chapter-11-operating-reports
New USTP Non-Small Business Reporting Requirements: The Bottom Line
The bottom line with regard to the new USTP Chapter 11 reporting process is that an experienced business bankruptcy attorney should be consulted to ensure timely and accurate compliance.
The local US Trustee has discretion under the new reporting rule to customize the required documentation with the overall goal of obtaining sufficient information from the DIP or Trustee to ascertain the debtor’s financial condition.
If you are investigating your options for a reorganization of your business through the bankruptcy process, contact us to discuss your options.