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theory for the expenses of administration based upon unsatisfied cleanup costs in the case.
The Third Circuit addressed the problem of pro-ration under § 365(d)(3) concerning obligations accrued before the bankruptcy filing but which did not become enforceable until after. Montgomery Ward was required to reimburse its landlord for real estate taxes. The debtor paid the tax obligations pro-rated based upon the date of the order for relief, and declined to pay the pre petition taxes. The landlord argued that all of the taxes were payable under the lease as the obligation was billed after the bankruptcy filing, and accordingly was due under § 365(d)(3). The Third Circuit panel rejected those courts that have prorated the obligation, and found that the determinative question was when the obligation became due under the lease. Accordingly, where the tax payment was billed after the date of the bankruptcy filing, and before the lease was rejected, the debtor incurred a chapter 11 expense of administration in the amount of the full bill. The dissenting opinion pointed out the problems the ruling creates, as well as the conflict with the Seventh Circuit's Handy Andy opinion.
Without citing any Third Circuit authority, a Delaware bankruptcy court held that the DIP was not obligated to pay stub rent for the portion of the month it filed its bankruptcy petition. Rent was due on the first of the month. Accordingly, when the debtor filed its voluntary petition during the month, no additional slims were owed for the balance of the month. The estate was liable, however, for administrative rent for the fair market value of the premises for the stub period. Another Delaware court held that such stub rent was payable upon the debtor's receipt of rent from its sublessee for the same period. This avoided the unfairness of the debtor collecting sublease rent
