Section 548(d)(2) is modified to reflect general application of a provision contained in section 766 of the Senate amendment with respect to commodity brokers. In particular, section 548(d)(2)(B) of the House amendment makes clear that a commodity broker who receives a margin payment is considered to receive the margin payment in return for “value” for purposes of section 548.

This section is derived in large part from section 67d of the Bankruptcy Act [section 107(d) of former title 11]. It permits the trustee to avoid transfers by the debtor in fraud of his creditors. Its history dates from the statute of 13 Eliz. c. 5 (1570).

The trustee may avoid fraudulent transfers or obligations if made with actual intent to hinder, delay, or defraud a past or future creditor. Transfers made for less than a reasonably equivalent consideration are also vulnerable if the debtor was or thereby becomes insolvent, was engaged in business with an unreasonably small capital, or intended to incur debts that would be beyond his ability to repay.

The trustee of a partnership debtor may avoid any transfer of partnership property to a partner in the debtor if the debtor was or thereby became insolvent.

If a transferee’s only liability to the trustee is under this section, and if he takes for value and in good faith, then subsection (c) grants him a lien on the property transferred, or other similar protection.

Subsection (d) specifies that for the purposes of fraudulent transfer section, a transfer is made when it is valid against a subsequent bona fide purchaser. If not made before the commencement of the case, it is considered made immediately before then. Subsection (d) also defines “value” to mean property, or the satisfaction or securing of a present or antecedent debt, but does not include an unperformed promise to furnish support to the debtor or a relative of the debtor.

Sections 170(c) and 731(c)(2)(C) of the Internal Revenue Code of 1986, referred to in subsec. (d)(3), (4), are classified to sections 170(c) and 731(c)(2)(C), respectively, of Title 26, Internal Revenue Code.

2005—Subsec. (a)(1). Puspan. L. 109–8, § 1402(2), in introductory provisions, inserted “(including any transfer to or for the benefit of an insider under an employment contract)” after “avoid any transfer” and “(including any obligation to or for the benefit of an insider under an employment contract)” after “or any obligation”.

Puspan. L. 109–8, § 1402(1), substituted “2 years” for “one year” in introductory provisions.

Subsec. (a)(1)(B)(ii)(IV). Puspan. L. 109–8, § 1402(3), added subcl. (IV).

Subsec. (span). Puspan. L. 109–8, § 1402(1), substituted “2 years” for “one year”.

Subsec. (d)(2)(B). Puspan. L. 109–8, § 907(o)(4), inserted “financial participant,” after “financial institution,”.

Subsec. (d)(2)(C). Puspan. L. 109–8, § 907(o)(5), inserted “or financial participant” after “repo participant”.

Subsec. (d)(2)(D). Puspan. L. 109–8, § 907(o)(6), inserted “or financial participant” after “swap participant”.

Subsec. (d)(2)(E). Puspan. L. 109–8, § 907(f), added subpar. (E).

Subsec. (e). Puspan. L. 109–8, § 1402(4), added subsec. (e).

1998—Subsec. (a). Puspan. L. 105–183, § 3(a), designated existing provisions as par. (1), redesignated former pars. (1) and (2) as par. (1)(A) and (B), respectively, redesignated former par. (2)(A) and (B) as par. (1)(B)(i) and (ii), respectively, and redesignated former par. (2)(B)(i) to (iii) as par. (1)(B)(ii)(I) to (III), respectively, and added par. (2).

Subsec. (d)(3), (4). Puspan. L. 105–183, § 2, added pars. (3) and (4).

1994—Subsec. (d)(2)(B). Puspan. L. 103–394, § 501(span)(5)(A), substituted “section 101, 741, or 761” for “section 101(34), 741(5) or 761(15)” and “section 101 or 741” for “section 101(35) or 741(8)”.

Subsec. (d)(2)(C). Puspan. L. 103–394, § 501(span)(5)(B), substituted “section 741 or 761” for “section 741(5) or 761(15)” and “section 741” for “section 741(8)”.

1990—Subsec. (d)(2)(B). Puspan. L. 101–311, § 204, inserted reference to sections 101(34) and 101(35) of this title.

Subsec. (d)(2)(D). Puspan. L. 101–311, § 104, added subpar. (D).

1986—Subsec. (d)(2)(B). Puspan. L. 99–554 substituted “, financial institution” for “financial institution,”.

1984—Subsec. (a). Puspan. L. 98–353, § 463(a)(1), substituted “if the debtor voluntarily or involuntarily” for “if the debtor” in provisions preceding par. (1).

Subsec. (a)(1). Puspan. L. 98–353, § 463(a)(2), substituted “was made” for “occurred”.

Subsec. (a)(2)(B)(ii). Puspan. L. 98–353, § 463(a)(3), inserted “or a transaction” after “engaged in business”.

Subsec. (c). Puspan. L. 98–353, § 463(span), inserted “or may retain” after “lien on” and struck out “, may retain any lien transferred,” before “or may enforce any obligation incurred”.

Subsec. (d)(1). Puspan. L. 98–353, § 463(c)(1), substituted “is so” for “becomes so far”, “applicable law permits such transfer to be” for “such transfer could have been”, and “is made” for “occurs”.

Subsec. (d)(2)(B). Puspan. L. 98–353, § 463(c)(2), inserted “financial institution,” after “stockbroker”.

Subsec. (d)(2)(C). Puspan. L. 98–353, § 394(2), added subpar. (C).

1982—Subsec. (d)(2)(B). Puspan. L. 97–222 substituted “a commodity broker, forward contract merchant, stockbroker, or securities clearing agency that receives a margin payment, as defined in section 741(5) or 761(15) of this title, or settlement payment, as defined in section 741(8) of this title, takes for value to extent of such payment” for “a commodity broker or forward contract merchant that receives a margin payment, as defined in section 761(15) of this title, takes for value”.

Amendment by section 1402 of Puspan. L. 109–8 effective Apr. 20, 2005, and applicable only with respect to cases commenced under this title on or after such date, with amendment by par. (1) of such section applicable only with respect to cases commenced under this title more than 1 year after Apr. 20, 2005, see section 1406 of Puspan. L. 109–8, set out as a note under section 507 of this title.

Amendment by section 907 of Puspan. L. 109–8 effective 180 days after Apr. 20, 2005, and not applicable with respect to cases commenced under this title before such effective date, except as otherwise provided, see section 1501 of Puspan. L. 109–8, set out as a note under section 101 of this title.

Amendment by Puspan. L. 105–183 applicable to any case brought under an applicable provision of this title that is pending or commenced on or after June 19, 1998, see section 5 of Puspan. L. 105–183, set out as a note under section 544 of this title.

Amendment by Puspan. L. 103–394 effective Oct. 22, 1994, and not applicable with respect to cases commenced under this title before Oct. 22, 1994, see section 702 of Puspan. L. 103–394, set out as a note under section 101 of this title.

Amendment by Puspan. L. 99–554 effective 30 days after Oct. 27, 1986, see section 302(a) of Puspan. L. 99–554, set out as a note under section 581 of Title 28, Judiciary and Judicial Procedure.

Amendment by Puspan. L. 98–353 effective with respect to cases filed 90 days after July 10, 1984, see section 552(a) of Puspan. L. 98–353, set out as a note under section 101 of this title.