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IN RE 995 FIFTH AVE. ASSOCIATES, L.P.

No. 416, Docket 91-5038.

963 F.2d 503 (1992)

In re: 995 FIFTH AVENUE ASSOCIATES, L.P., Debtor. 995 FIFTH AVENUE ASSOCIATES, L.P., Plaintiff-Appellee, v. NEW YORK STATE DEPARTMENT OF TAXATION AND FINANCE; James W. Wetzler, as Commissioner of Taxation and Finance; Edward V. Regan, as Comptroller of the State of New York, Defendants-Appellants.

United States Court of Appeals, Second Circuit.

Decided April 13, 1992.

Amended Opinion May 8, 1992.

Attorney(s) appearing for the Case

David S. Cook, Sr. Atty., Atty. Gen.'s Office, State of N.Y., New York City (Robert Abrams, Atty. Gen., Frederic L. Lieberman, Marcie S. Mintz, Asst. Attys. Gen., of counsel), for defendants-appellants.

Joshua J. Angel, New York City (Leonard H. Gerson, Ira R. Abel, Angel & Frankel, P.C., of counsel), for plaintiff-appellee.

Before OAKES, Chief Judge, FEINBERG and ALTIMARI, Circuit Judges.

OAKES, Chief Judge:

This appeal requires us to decide whether the Eleventh Amendment bars a debtor's suit to recover taxes paid to the State of New York, and whether 11 U.S.C. § 1146(c) (1988) exempts the debtor from payment of the New York gains tax on the transfer of property, N.Y.Tax Law § 1441 (McKinney 1987). The United States Bankruptcy Court for the Southern District of New York, Tina L. Brozman, Bankruptcy Court Judge, found that the New York...

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