Tradex, Inc. v. United States (In re IML Freight, Inc.), 65 B.R. 788 (Bankr.D.Utah)
PUBLISHED
In an action filed against it for shipping fees owed to debtor, the government counterclaimed to offset its claim against debtor for fees and penalties incurred due to insufficient funds tax payments. The parties stipulated to the facts and requested that the court decide the matter on summary judgment. Noting that, under certain circumstances, 11 U.S.C. § 553 allows a creditor to offset a debt owed to debtor against debtor's claim against it, the court emphasized that the availability of offset is left to the court's discretion. The court concluded that § 553 requires that the two debts be "mutual," which does not mean they must arise from the same transaction, and that both debts arise prepetition and are owed directly to each party. Under the stipulated facts, the court determined that offset should be allowed in the case before it.