Catholic Sch. Emps. Pension Trust v. Abreu
This text of 599 B.R. 634 (Catholic Sch. Emps. Pension Trust v. Abreu) is published on Counsel Stack Legal Research, covering Bankruptcy Appellate Panel of the First Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.
Opinion
Feeney, Chief U.S. Bankruptcy Appellate Panel Judge.
Catholic School Employees Pension Trust (the "Pension Trust" or the "Trust") appeals from the bankruptcy court's Opinion and Order (the "Dismissal Order"), dated March 13, 2018, dismissing the Pension Trust's chapter 11 case. In dismissing the case, the bankruptcy court ruled that the Pension Trust was not a "person" eligible to be a debtor under
INTRODUCTION
The Pension Trust administered and managed the Catholic Schools of the Archdiocese of San Juan Pension Plan (the "Pension Plan" or "Plan") which was terminated in June 2016.2 Prior to the commencement of the Pension Trust's bankruptcy case, hundreds of Pension Plan participants (identified in the Pension Plan as employees) had commenced actions against The Holy Catholic Apostolic Roman Church, the Archdiocese of San Juan, the "Superintendence" [sic] of Catholic Schools of the Archdiocese of San Juan, the Pension Plan, and various other entities and individuals, including the current president of the board of trustees of the 28 *639Pension Trust, Dr. Ramón A. Guzmán Rivera ("Dr. Guzmán"), in courts of the Commonwealth of Puerto Rico and the U.S. District Court for the District of Puerto Rico to recover unpaid pension benefits, as well as other forms of relief. Seeking a breathing spell from this litigation, the Pension Trust filed a chapter 11 petition on January 11, 2018.3
On February 6 and 7, 2018, motions to dismiss the chapter 11 case were filed by Yali Acevedo, on her own and on behalf of 180 plaintiffs in a case before the Court of First Instance, San Juan; Francisco Abreu, on his own and on behalf of six other plaintiffs in a case before the Court of First Instance, Aguadilla; and Edda D. González-Vázquez, a plaintiff in a case before the U.S. District Court for the District of Puerto Rico (collectively, the "Appellees"). The Appellees, who are participants under the Pension Plan, asserted that the Pension Trust was not a "person" eligible for bankruptcy relief because it was not a "business trust" under the Bankruptcy Code.4 They alleged that the Pension Trust did not engage in "income generating activities" or "business activities" and, therefore, was not a business trust eligible for relief under the Bankruptcy Code. The Pension Trust opposed the motions to dismiss, claiming, among other things, that it was a business trust because it had attributes of a corporation and engaged in business activities. According to the Pension Trust, the court needed to consider the "totality of the circumstances," including the terms of the Pension Trust document, the business activities in which the Trust engaged before the Pension Plan was terminated, and the economic landscape that led to its financial decline. The Pension Trust likened its post-termination activities to those an insolvent corporation would undertake in liquidating its assets in a chapter 11 bankruptcy case and stated that the bankruptcy case was commenced "specifically to effectuate the orderly liquidation of the business trust." (emphasis in original).
The bankruptcy court scheduled an evidentiary hearing on the two motions to dismiss and, in a pre-hearing order, identified the "key legal issue" in determining the Pension Trust's eligibility as "whether the Pension Trust is a business trust." After the evidentiary hearing, at which the only witness was Dr. Guzmán, the president *640of the Pension Trust's board of trustees, the bankruptcy court dictated into the record its findings and rulings and granted the motions to dismiss, indicating that it would issue a written decision at a later date. That written decision was the Dismissal Order in which the court determined that the Pension Trust was not a business trust and, therefore, was ineligible to be a debtor. Noting that the Bankruptcy Code does not define the term "business trust" and that no uniform standard has developed in the case law in the First Circuit and elsewhere, the bankruptcy court determined the relevant factors for evaluating whether an entity is a business trust are: (1) "whether the trust was created for the purpose of carrying [on] a business, as opposed to the preservation of the res "; (2) "whether the trust has the attributes of a corporation"; (3) "whether the trust engages in business-like activities"; and (4) "whether the trust has a profit motive." See In re Catholic Sch. Emps. Pension Tr.,
BACKGROUND 5
I. Pre-Bankruptcy Events
A. The Establishment of the Pension Trust and the Pension Plan
The Pension Trust was established on November 26, 1979 by a Deed of Trust. The Pension Plan was attached to, and incorporated into, the Deed of Trust. The Settlor of the Pension Trust was the Superintendent of the Catholic Schools of the Archdiocese of San Juan (the "Settlor" or the "Superintendent"). The Settlor also was denominated in the Pension Plan as its "Sponsor." Pursuant to the terms of the Pension Plan, the Settlor was responsible for the appointment of a "Retirement Committee" (hereinafter sometimes the "committee") of at least seven members who would be "under the control and direction of the Settlor and be accountable to it [sic]." Pursuant to the Pension Plan, the Settlor also was responsible for the appointment of trustees to take possession of Plan property.
The Deed of Trust incorporates by reference defined terms in the Pension Plan. The Pension Plan defines the term "Participant" as "any employee or their beneficiaries of a participating employer who has acquired or may acquire rights in the plan," and the term "Beneficiaries" as "the person or persons, natural or juridical [sic] designated to receive any benefits payable pursuant [to] this document upon the death of the participant," as well as "each and every one of the beneficiaries or heirs after the death of the participants."6 The term "Participating Employer" is defined as follows:
( [i] ) the Office of the Superintendent of Catholic Schools of the Archdiocese of San Juan and any school that is under the supervision of the Superintendent and chooses to participate in the plan, *641
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Feeney, Chief U.S. Bankruptcy Appellate Panel Judge.
Catholic School Employees Pension Trust (the "Pension Trust" or the "Trust") appeals from the bankruptcy court's Opinion and Order (the "Dismissal Order"), dated March 13, 2018, dismissing the Pension Trust's chapter 11 case. In dismissing the case, the bankruptcy court ruled that the Pension Trust was not a "person" eligible to be a debtor under
INTRODUCTION
The Pension Trust administered and managed the Catholic Schools of the Archdiocese of San Juan Pension Plan (the "Pension Plan" or "Plan") which was terminated in June 2016.2 Prior to the commencement of the Pension Trust's bankruptcy case, hundreds of Pension Plan participants (identified in the Pension Plan as employees) had commenced actions against The Holy Catholic Apostolic Roman Church, the Archdiocese of San Juan, the "Superintendence" [sic] of Catholic Schools of the Archdiocese of San Juan, the Pension Plan, and various other entities and individuals, including the current president of the board of trustees of the 28 *639Pension Trust, Dr. Ramón A. Guzmán Rivera ("Dr. Guzmán"), in courts of the Commonwealth of Puerto Rico and the U.S. District Court for the District of Puerto Rico to recover unpaid pension benefits, as well as other forms of relief. Seeking a breathing spell from this litigation, the Pension Trust filed a chapter 11 petition on January 11, 2018.3
On February 6 and 7, 2018, motions to dismiss the chapter 11 case were filed by Yali Acevedo, on her own and on behalf of 180 plaintiffs in a case before the Court of First Instance, San Juan; Francisco Abreu, on his own and on behalf of six other plaintiffs in a case before the Court of First Instance, Aguadilla; and Edda D. González-Vázquez, a plaintiff in a case before the U.S. District Court for the District of Puerto Rico (collectively, the "Appellees"). The Appellees, who are participants under the Pension Plan, asserted that the Pension Trust was not a "person" eligible for bankruptcy relief because it was not a "business trust" under the Bankruptcy Code.4 They alleged that the Pension Trust did not engage in "income generating activities" or "business activities" and, therefore, was not a business trust eligible for relief under the Bankruptcy Code. The Pension Trust opposed the motions to dismiss, claiming, among other things, that it was a business trust because it had attributes of a corporation and engaged in business activities. According to the Pension Trust, the court needed to consider the "totality of the circumstances," including the terms of the Pension Trust document, the business activities in which the Trust engaged before the Pension Plan was terminated, and the economic landscape that led to its financial decline. The Pension Trust likened its post-termination activities to those an insolvent corporation would undertake in liquidating its assets in a chapter 11 bankruptcy case and stated that the bankruptcy case was commenced "specifically to effectuate the orderly liquidation of the business trust." (emphasis in original).
The bankruptcy court scheduled an evidentiary hearing on the two motions to dismiss and, in a pre-hearing order, identified the "key legal issue" in determining the Pension Trust's eligibility as "whether the Pension Trust is a business trust." After the evidentiary hearing, at which the only witness was Dr. Guzmán, the president *640of the Pension Trust's board of trustees, the bankruptcy court dictated into the record its findings and rulings and granted the motions to dismiss, indicating that it would issue a written decision at a later date. That written decision was the Dismissal Order in which the court determined that the Pension Trust was not a business trust and, therefore, was ineligible to be a debtor. Noting that the Bankruptcy Code does not define the term "business trust" and that no uniform standard has developed in the case law in the First Circuit and elsewhere, the bankruptcy court determined the relevant factors for evaluating whether an entity is a business trust are: (1) "whether the trust was created for the purpose of carrying [on] a business, as opposed to the preservation of the res "; (2) "whether the trust has the attributes of a corporation"; (3) "whether the trust engages in business-like activities"; and (4) "whether the trust has a profit motive." See In re Catholic Sch. Emps. Pension Tr.,
BACKGROUND 5
I. Pre-Bankruptcy Events
A. The Establishment of the Pension Trust and the Pension Plan
The Pension Trust was established on November 26, 1979 by a Deed of Trust. The Pension Plan was attached to, and incorporated into, the Deed of Trust. The Settlor of the Pension Trust was the Superintendent of the Catholic Schools of the Archdiocese of San Juan (the "Settlor" or the "Superintendent"). The Settlor also was denominated in the Pension Plan as its "Sponsor." Pursuant to the terms of the Pension Plan, the Settlor was responsible for the appointment of a "Retirement Committee" (hereinafter sometimes the "committee") of at least seven members who would be "under the control and direction of the Settlor and be accountable to it [sic]." Pursuant to the Pension Plan, the Settlor also was responsible for the appointment of trustees to take possession of Plan property.
The Deed of Trust incorporates by reference defined terms in the Pension Plan. The Pension Plan defines the term "Participant" as "any employee or their beneficiaries of a participating employer who has acquired or may acquire rights in the plan," and the term "Beneficiaries" as "the person or persons, natural or juridical [sic] designated to receive any benefits payable pursuant [to] this document upon the death of the participant," as well as "each and every one of the beneficiaries or heirs after the death of the participants."6 The term "Participating Employer" is defined as follows:
( [i] ) the Office of the Superintendent of Catholic Schools of the Archdiocese of San Juan and any school that is under the supervision of the Superintendent and chooses to participate in the plan, *641(ii) any successor to the property of any of them, (iii) any other Catholic school under the supervision of the Superintendence [sic] of their respective diocese or superintendence [sic] of Catholic schools that assumes in writing the obligation of this plan, and (iv) any agency and/or branch office of the Catholic Church of Puerto Rico, but in each case subject to the approval of the plan sponsor or their successor [sic].
The Pension Plan provides that it was created by the Superintendent "for the exclusive benefit of the employees of the participating employers and/or their beneficiaries," and that "[u]nder no circumstances shall any trust property be used or any contribution made by the employer[s] under the terms of this plan for purposes other than the exclusive benefit of the employees and their beneficiaries ...."7 It also provides that it applies "to current and future employees of participating employers."
The Deed of Trust provides that "the Trust shall consist of such funds as shall from time to time be deposited with the Trustee by the Settlor and its employees in accordance with the term of the Plan ...." The Pension Plan in turn provides that: "The custody and control of all the assets constituting part of the fund shall be held by the trustee[s] and neither the Settlor nor any participant shall have any property right on it [sic], except that participants are entitled to receive those payments and distributions that are set forth herein." Thus, a board of trustees (hereinafter sometimes the "trustees" or the "board") administers the Trust and oversees its compliance with the terms and conditions of the Deed of Trust and the (now terminated) Pension Plan. The Deed of Trust requires the trustees to discharge their duties with respect to both the Trust and the Pension Plan "solely in the interest of the participants and their beneficiar[ies]."
B. The March 2016 Termination of the Pension Plan
Article 18 of the Pension Plan contains provisions relating to its termination and the liquidation of assets of the Pension Trust. It provides:
A. The Settlor reserves the right to terminate this plan in its entirety at any time, for any reason, or no reason at all subject to the previous approval of the Secretary of the Treasury, and/or the Pension Benefit Guarantee Corporation, as well as the majority of participating employers.
B. This termination shall be effective if the committee and the trustee[s] receive a termination permit from the Secretary of the Treasury. In such case, each participant shall take possession of all rights, title and interests of accrued benefits acquired under the plan as provided in Section D of this article.
C. The trustee shall execute each and every one of the legal documents required to achieve the termination of the trust as provided herein.
D. When the termination of the plan has been approved, the plan trustees shall proceed to liquidate the trust fund and to apportion the assets in accordance *642with the priorities established by the regulations of Title IV of ERISA ....
If the assets available for distribution are not sufficient to cover all claims within one of the established priorities, these funds will be prorated and distributed equitably....
On March 14, 2016, Plan participants were informed that pension payments would cease as of June 30, 2016,8 and, in fact, payments did cease. Unlike the Pension Plan, there was no evidence or argument that the Pension Trust was ever terminated.
As noted above, following termination of the Pension Plan, hundreds of Plan participants (including the Appellees) filed complaints against the Pension Trust and other entities, including, inter alia, the Archdiocese of San Juan, in various local and federal courts seeking to recover pension payments allegedly owed as well as other forms of relief.9
II. The Bankruptcy Case
A. The Motions to Dismiss and Opposition
On January 11, 2018, the Pension Trust filed a voluntary petition for relief under chapter 11 of the Bankruptcy Code. On February 6, 2018, Ms. Yali Acevedo and Mr. Francisco Abreu, on their own and on behalf of other plaintiffs in cases in the Puerto Rico courts, filed a motion to dismiss the chapter 11 case, asserting that the Pension Trust was ineligible to be a debtor in a bankruptcy case because it was not a "business trust" under § 101(9)(A)(v).
Ms. Edda D. González-Vázquez also challenged the Pension Trust's eligibility to file a bankruptcy petition by filing a motion to dismiss the case. She maintained the Pension Trust could not be considered a business trust because it was "not created for a business purpose," had "no ongoing income generating activities," and because its formation document "prohibit[ed] the transferability of [ ] beneficial interests."
On February 20, 2018, the Pension Trust filed a single opposition to both motions to dismiss, alleging that it was a "business trust" and squarely fell within the definition of a "corporation" set forth in § 101(9)(A)(v).
Thereafter, the Appellees filed a response to the Pension Trust's opposition raising additional arguments, including: (1) the Pension Trust was "legally prohibited" from conducting further business upon termination under Article 18(D) of the Pension Plan; (2) the Pension Trust "neglected its duty to distribute the funds among the employees"; and (3) the Plan's termination was "illegal" because the Trust did not *643"obtain the previous approval by the Puerto Rico Secretary of Treasury" as required by the terms of the Pension Plan.
B. The March 6, 2018 Bankruptcy Court Hearing
The bankruptcy court held an evidentiary hearing on the two motions to dismiss on March 6, 2018.10 The parties introduced the Deed of Trust and the Pension Plan as a joint exhibit, and Dr. Guzmán testified. A four-part proffer of the direct testimony of Luis Carrasquillo, a certified public accountant, was considered by the court. The bankruptcy court determined that the only relevant portion of the proffer was Section D, in which Mr. Carrasquillo concluded: "In my opinion, the Trust has all the attributes of an insolvent corporation eligible for bankruptcy relief." The bankruptcy court remarked, however, that Mr. Carrasquillo offered no facts to support his opinion. The court admitted the proffer into evidence but gave it little weight.
1. Testimony of Dr. Guzmán
Dr. Guzmán was the sole witness to testify. He testified that he was appointed as a member of the board of trustees in 2011 and was elected president in 2012. He described his duties and responsibilities as president as organizing and presiding over meetings, preparing minutes and agendas, receiving information from the Plan administrator, communicating with other board members, recommending candidates to become members of the board, and participating in board determinations regarding the administration of the Pension Plan and its assets.
(a) Financial Difficulties
Dr. Guzmán testified that at the time he became president of the board, the Pension Trust was experiencing financial difficulties, particularly with respect to the "investment" of Pension Plan funds, as the fund was a "limited fund" which only received contributions from "participating employers." In practice, the Pension Trust would turn over its funds to an investment company and, according to Dr. Guzmán, "the worst problem [the trustees] had to face was the matter of the investment of the funds of the [P]lan." According to Dr. Guzmán, the Pension Trust had invested funds with "UBS" "for more than ten years," but it "had to leave UBS." He stated: "[W]hat UBS was really doing was bleeding us because they were charging us commissions for all the money that the fund invested." Dr. Guzmán testified that, following numerous meetings, the board decided to withdraw funds from UBS and transfer them to Popular Securities, where the board believed it could obtain "safer profits" at less cost. The Pension Plan experienced further financial hardship, however, due to a significant decline in the number of participating employers making contributions to the Plan. Dr. Guzmán testified that, although the Pension Plan previously had about 76 participating employers, mostly Catholic schools, that number had decreased to 43 due to school closings. He added that participating employers were precluded from withdrawing from the Pension Plan, but "the reality is that schools have shut down and disappeared as participating employers."11
*644(b) Employees
Dr. Guzmán testified that during his tenure as president, the Pension Trust had two employees. One was a full-time plan "administrator" whose primary responsibilities were to "control [ ] the payments" made to and by the Plan and "bill participating employers" for their contributions. The other employee was a part-time administrative assistant who was responsible for preparing all necessary forms and submitting them to the appropriate government agencies. Dr. Guzmán testified that these employees were "paid with the funds of the plan itself; that is, from the revenues that the fund receive[d] from participating employers[.]"
(c) Termination of Plan
Dr. Guzmán also testified about the "termination" of the Pension Plan. When asked whether "the plan terminated in March 2016," he responded: "Exactly." He stated that "the participating employers [we]re ... the only ones who can decide whether the plan will continue or be closed" and that, after holding two meetings, the participating employers "decided to terminate the plan."12 As a result of the termination, payments to beneficiaries under the Plan ceased in June 2016. He stated, however, that notwithstanding the termination of the Plan, the board of trustees continued its efforts to collect the contributions still owed by participating employers. He also testified that, although the Pension Trust received no "new contributions" after termination, the trustees successfully collected some of the accounts receivable.
(d) Trustees' Duty to Invest
Dr. Guzmán testified that the board of trustees had a duty "to invest and reinvest the trust['s assets]" and it was his understanding that "[the board] had to invest to make the fund grow." He testified that the trustees were to "discharge [their] duties with respect to the funds of the trust with diligence and prudence" and that "business be conducted to achieve the objectives of the trust."
(e) The Bankruptcy Filing
Dr. Guzmán, while admitting a lack of familiarity with bankruptcy, opined that the Trust was insolvent and, in his words "broke," and that the filing of a bankruptcy petition was the most "equitable" way to "divide up" the assets remaining in the Pension Trust and distribute them to the Pension Plan beneficiaries. He also indicated that the trustees' efforts to distribute the remaining funds to the beneficiaries were thwarted due to litigation commenced by beneficiaries, and because "a group of plaintiffs [we]re carrying out an attachment of the funds of the plan[.]"
(f) Cross-Examination
On cross-examination, Dr. Guzmán admitted that the Pension Trust had no "inventory of goods for sale," "machinery or equipment for manufacturing," "real estate," or "intellectual property." He testified that the Trust's only assets were approximately $ 1.6 million-consisting of "money contributed by the participating employers" and "dividend[s] and/or interest[ ]"-and approximately $ 1.7 million in *645"accounts receivable"-representing amounts still owed by participating employers. He stated that the Pension Trust has a board of trustees, but it does not have any stockholders and it pays no dividends. It does not have any loans from third parties or lines of credit. Dr. Guzmán agreed that, under the terms of the Plan, participants and beneficiaries cannot "assign [ ]or transfer, encumber in any way, [or] dispose of any of the benefits to which that person is entitled[.]"
Dr. Guzmán confirmed that, pursuant to the Deed of Trust and the Pension Plan, "the obligation of the trustee[s] would be to receive the monies from the sponsoring employers, to deliver the monies to the investment company, and from that money in the investment companies, or accounts, to pay the beneficiaries and participants of the plan."
He testified that the Trust was a "not for profit" organization, that the only "original source of income" was from employer contributions, and that the trustees were responsible for the "administration" of the Trust funds. He stated that the "purpose" of the Trust was to "preserve" Trust funds, and "to make it [sic] grow," so that there would be "money [ ] there to pay" benefits to employees and the Trust's operational expenses. Dr. Guzmán agreed that the trustees' main obligation was to "receive monies from the sponsoring employers, to deliver the monies to the investment company, and from that money in the investment companies, or accounts, to pay the beneficiaries and participants of the [P]lan[.]" He rejected the suggestion that the Trust was akin to an "estate trust" or an "inheritance estate."
2. Pertinent Provisions of the Deed of Trust and Plan13
(a) Contributions from Participating Employers
To "finance" the Pension Plan, participating employers paid contributions to the trustees. Specifically, under the Plan, the participating employers agreed to "contribute the necessary funds through [sic] the trustee[s] for the operation and administration of the [P]lan, and that these funds should be part of the trust property, which will be maintained and managed by the trustee[s] for the benefit of employees and their beneficiaries[.]" The Pension Plan required all participating employers to make contributions as calculated by the committee and provided that those contributions were to be made "to accumulate the necessary reserves to cover monthly pension expenses that are payable to participants" of the Plan.14 The amounts contributed by the participating employers were to be "used solely and exclusively by the [Pension Trust] for exclusive purposes for the benefit of participants and/or beneficiaries." The participants did not contribute to the Pension Plan.
(b) The Pension Trust's Assets
The assets of the Pension Trust were mainly the contributions made by participating employers under the terms of the Pension Plan, but also could include, according *646to the Plan, "income, interest, dividends, profits, earnings or donations of any kind which became Trust property."15
Article 13 of the Pension Plan, entitled "Establishing the Trust," provided that the trustees would hold "custody and control of all the assets" of the Pension Trust and "neither the Settlor nor any participant shall have any property right on it [sic], except that participants are entitled to receive those payments and distributions" in accordance with the Pension Plan.
(c) The Board of Trustees
The Pension Trust is governed by a board of trustees, which is tasked with "manag[ing], invest[ing] and reinvest[ing] the Trust" pursuant to its terms and "mak[ing] payments of benefits from the Trust ... pursuant to the instructions of the Retirement Committee ...."16 Article III of the Deed of Trust, entitled "Powers of Trustees," directs that all of the trustees' actions shall be taken "by majority" vote. It also mandates that the trustees "discharge their duties" with respect to the Pension Trust and the Pension Plan "solely in the interest of the participants and their beneficiar[ies]," "with the care, prudence and diligence under the circumstances then prevailing that a prudent man acting in a like capacity and familiar with such matters would use in the conduct of an enterprise of like character with like aims."17
(d) Power to Invest
The Deed of Trust requires the trustees to make investments on behalf of the Pension Trust. It provides:
The Trustees shall invest and reinvest the Trust [assets], without distinction between principal and income thereof, in such bonds, notes, debentures, mortgages, preferred or common stocks, pooled investment funds, or in such other properties real or personal, and/or securities of any kind, class, or character as the Trustee[s] may deem suitable[.]
Moreover, the trustees are required to "diversify[ ] the investment of th[e] Trust so as to minimize the risk of large losses[.]" The Deed of Trust, however, provides that the trustees will "not be liable for any loss resulting, directly or indirectly, from any action taken by them to carry out the suggestions from the Committee."
The Deed of Trust further authorizes the trustees:
To invest and reinvest the Trust Estate, to collect the income, rents, issues, profits and increase therefrom, to sell upon any terms, give options to purchase, assign, lease, exchange, convert, encumber, pledge, and mortgage; to alter and change the investment thereof from time to time at its discretion; to improve, manage, protect, subdivide, and partition any real estate forming part of the Trust; to dedicate to public use and vacate all or any part thereof; to compromise, adjust and settle all claims to or *647against the Trust ...; to grant options to lease and to lease for any term ...; to make leases upon such terms and conditions as may be deemed by it to be proper; to renew, cancel, amend and/or extend leases and consent to the assignment and modification of any lease ...; and to vote personally or by proxy any shares of stock which may at anytime be held by it thereunder.
(e) Power to Exercise Options
The Deed of Trust authorizes the trustees to exercise options relating to bonds, stocks, and securities.
(f) Power to Participate in Reorganization of Corporation Held as Part of the Trust
The Deed of Trust permits the trustees to "become a party to any reorganization, consolidation, merger, or other capital readjustment of any corporation, the stocks or securities of which may at anytime be held as part of the Trust." The Deed of Trust and the Pension Plan do not expressly authorize the trustees to commence a bankruptcy case on behalf of the Pension Trust.
(g) Power to Enter Contracts
The Deed of Trust provides that the trustees "shall have full power and authority by contract to bind the Trust Estate without making themselves individually liable, and to perform any and all other acts which it may deem proper to carry out the purpose of this instrument."
(h) Power to Employ Professionals and Personnel
The trustees are authorized to "employ such agents, broker, attorneys ... and assistants as [they] may deem necessary or proper in the ... execution of th[e] Trust and pay reasonable compensation for such services." The Pension Plan also provides that the trustees are authorized to "hire the required personnel for the administration of th[e] [P]lan," and to pay such personnel from the Trust's funds.
(i) Limitations on Liability
The Deed of Trust authorizes the trustees to "act upon the instructions, directions, requests, and requisitions of the members of the Committee," and limits the trustees' liability in performing their duties under the Pension Trust by providing that they "shall not be liable ... except for their own negligence or willful misconduct."
(j) Prohibition from Engaging in Transactions with Disqualified Persons / Parties-in-Interest
The Deed of Trust prohibits the participating employers, the plan participants and their beneficiaries, and the trustees from engaging in certain transactions, such as any sale or lease of property or loans involving a "Disqualified Person" or "Party-in Interest."18
(k) Use of Assets for Exclusive Benefit of Participants
The Deed of Trust provides that "[a]t no time prior to the satisfaction of all liabilities with respect to the participants or their beneficiaries shall any part of the Fund ... be used for, or diverted to, purposes other than the exclusive benefit of the participants or their beneficiaries ...."
*648(l) Full Power and Authority
The Deed of Trust gives the trustees "full and complete power and authority over the Trust except as herein provided as fully and to the same extent any individual might, could or would have owning similar property or securities in his own right, and the enumeration of specific powers shall not be taken to restrict general powers and authority" given in the Deed of Trust.
(m) Duty to Maintain Accounts
The trustees are required to "keep accurate accounts of all investment[s], receipts, disbursements, and other transactions [ ], and all accounts, books and records relating thereto shall be open at all reasonable times to inspection and audit by any person or persons designated by the Settlor." In addition, the Deed of Trust requires the trustees to submit quarterly reports to the committee, and file annual "independent certified written account[s]" with the Settlor and the committee.
(n) Disbursement of Funds
The Deed of Trust provides: "For purposes of paying reasonable expenses of the [P]lan and [T]rust associated with benefits funded under the [P]lan, the trustees shall make such payments at such times to such persons and in such amounts as the Committee shall direct in writing." The trustees, however, are not required "to determine whether any directions issued to it by the committee are in accordance with the terms of the [P]lan, [and] may follow such directions without question."
(o) Participant Acquired Rights
The Pension Plan includes provisions governing the eligibility of employees to participate in the Plan, their entitlement to benefits, their ability to designate beneficiaries, and the disbursements of pension benefits. Article 11 of the Plan is entitled "Participant Acquired Rights," and provides that "[e]mployee participation in the [T]rust shall cease" when the employee's employment ceases for any reason other than "retirement before normal retirement age," except for certain situations.
(p) Non-transferability of Benefits
Both the Deed of Trust and the Pension Plan prohibit the transfer or assignment of any benefits. The Deed of Trust at Article VIII provides:
No interest in this Trust or any share thereof shall be assignable in anticipation of payment either by voluntary or involuntary act or by operation of law, or be liable in any way for debts or defaults of any participant or beneficiary of the [P]ension [P]lan ...; and every attempt at assignment or other disposition of any cash or property in this Trust, or any part thereof, except as herein authorized, shall be void. The Trustees shall not pay any money or assign any property payable or distributable to, or standing to the credit of, any person here under to any assignee or creditor of such person.
Article 5 of the Pension Plan is entitled "Alienation, Transfer or Assignment of Benefits," and subsection A specifies:
With the exception of any amount that might be owed to the employer or to the trustee[s] [neither] the participant[s] nor any of their beneficiaries shall be entitled to assign, transfer, encumber or in any way dispose of any benefit (either principal or interest) that they may be entitled to under this [P]lan .... If any participant or any beneficiary attempts to assign, transfer, or otherwise dispose of such right ..., such right shall be transferred to one or more persons appointed by the retirement committee among the beneficiaries, spouse, and relatives of the participant or beneficiary, in such proportion as the committee determines.
*649Under Article 6 of the Pension Plan, entitled "Designation of Beneficiary," the "committee may reassign the participant or beneficiary rights at any time, or make them to be destined for their own use, or to receive any payment that is due. The committee may revoke for just cause any appointment made under this section."
Neither the Deed of Trust nor the Pension Plan defines the scope of a beneficial interest of a Plan participant or beneficiary, other than to say that such interests are not transferable.
(q) Right to Terminate and Requirements upon Termination
Article VII of the Deed of Trust sets forth the "Duration and Termination of Trust." It provides:
This Trust shall continue for such time as may be necessary to accomplish the purpose for which it was created; but may be terminated and discontinued for reasons beyond the control of [the] Settlor. Notice of such termination shall be given to the Trustees by an instrument in writing executed by the Settlor ... and shall take effect as of the date of the delivery of such notice to the Trustees.
Upon termination of the Trust, "the Trustees shall upon the direction of the Committee[,] liquidate the Trust as promptly as possible and shall distribute the assets thereof remaining in the Trust Fund to or for the benefit of participants or beneficiaries of the Plan as directed by the Committee."
Finally, the Deed of Trust provides:
Upon termination of the Plan and liquidation and distribution of the Trust assets, in no event shall any of the Trust assets be returned to the Settlor or participating employers except such amounts as may remain after satisfaction of all liabilities with respect to participants and beneficiaries under the plan and result solely from an erroneous actuarial computation.
C. The Bench Ruling and the Dismissal Order
Throughout the hearing, the bankruptcy court made it clear that it considered the sole dispositive issue before it to be whether the Pension Trust was a business trust. It stated that the issue of whether "the [P]lan was validly terminated" was "irrelevant to the ultimate decision because what is more critical is whether or not the debtor is a business trust[.]" After hearing closing arguments from the parties, the court issued a bench ruling setting forth the positions of the parties, a summary of the testimony presented, the applicable law, and the court's application of the law to the facts of this case. The court ultimately concluded: "The debtor trust is not a business trust, and thus, is ineligible to file a bankruptcy petition. Case is dismissed." After the hearing, the court issued a "minute entry" memorializing its ruling.19
On March 13, 2018, the bankruptcy court entered the Dismissal Order granting the motions to dismiss and dismissing the petition as the Pension Trust "does not meet the definition of a corporation in § 101(9)(A)(v)." In re Catholic Sch. Emps. Pension Tr.,
POSITIONS OF THE PARTIES
I. The Pension Trust
The Pension Trust argues that the bankruptcy court erred in ruling that the Trust was not eligible to file for bankruptcy. It claims that the bankruptcy court: (1) incorrectly found that the purpose of the Trust was solely to preserve the res , instead of maximizing it; (2) failed to consider evidence that showed the Trust has the attributes of a corporation and was created for the purpose of carrying on a business operation to maximize its funds; (3) failed to consider the financial hardships that had a detrimental effect on the Trust's business activities; and (4) only considered the time period after the Pension Plan was terminated, rather than examining the totality of the circumstances, including the "decades of business activities that the Pension Trust engaged in prior to termination." The Pension Trust does not challenge the standard articulated by the bankruptcy court for determining whether the Pension Trust is a business trust. Rather, it alleges that all of the factors identified by the bankruptcy court were satisfied and that the bankruptcy court gave undue consideration to the alleged "lack of transferability of assets." Based on the foregoing, the Pension Trust asks that "the Dismissal Order be revoked."
II. The Appellees
The Appellees counter that the bankruptcy court correctly ruled that the Pension *651Trust was not a business trust. According to the Appellees, the Pension Trust is not a business trust because it was not created for a business purpose and is not engaged in any business activities. They claim that the "passive act of sitting on a corpus consisting of invested moneys" cannot be considered a business activity, and that Dr. Guzmán's testimony confirmed that the Pension Trust "was, at best, an investment vehicle for the [P]ension [P]lan up until June 2016." They also assert that the Pension Trust cannot be a business trust because the Deed of Trust "prohibits the transferability of the beneficial interests." This is significant, they claim, because the Internal Revenue Code (which sets forth the characteristics of a business trust for federal tax purposes) "lists transferability among the six elements it uses to characterize a trust as a business trust." According to the Appellees, the Pension Trust is "nothing more than a 'wasting asset' irreversibly declining in value as a function of time." They ask us to affirm the Dismissal Order as the Pension Trust does not qualify as a business trust entitled to bankruptcy relief.
JURISDICTION
"Pursuant to
STANDARD OF REVIEW
When considering a bankruptcy court's dismissal of a bankruptcy case, the Panel reviews the bankruptcy court's findings of fact for clear error and its conclusions of law de novo. Jeffrey P. White & Assocs., P.C. v. Fessenden (In re Wheaton),
DISCUSSION
I. Cause for Dismissal under Chapter 11
Section 1112(b)(1) provides that, after notice and a hearing, the bankruptcy court "shall ... dismiss a case under this chapter ... for cause ...."
A. Eligibility Under § 109
A determination of a debtor's eligibility to file a bankruptcy petition begins with § 109. Section 109(a) provides that only a "person" or "municipality" may be a debtor under the Bankruptcy Code, see
B. Time for Making Eligibility Determination
Several courts have stated that the relevant date for making a determination of eligibility under § 109 is the petition date. See TD Bank, N.A. v. Landry,
C. Burden of Proof
Generally, a party seeking dismissal of a case has the burden of proof. See In re Charles St. African Methodist Episcopal Church of Bos.,
The bankruptcy court in this case utilized the approach it articulated in Gulfcoast, stating in its bench ruling: "I think that the movants have made a prima facie case, and I agree with you, it's debtor's ultimate burden to establish that the debtor is a business trust, eligible to file bankruptcy under a Chapter 11." The case law regarding the burden of proof as to eligibility of business trusts is sparse. We conclude that the burden shifting approach utilized by the bankruptcy court appropriately balances the competing interests of the party seeking dismissal and the debtor seeking the protections and remedies available under the Bankruptcy Code, particularly where determination of eligibility is a fact-intensive inquiry and dependent upon circumstances unique to each case.
D. What Constitutes a Business Trust
There is consensus among courts that no uniform standard exists to define what constitutes a "business trust"
*654for purposes of the debtor's eligibility under § 109(a). Murphy v. Bernstein (In re Dille Family Tr.), No. 17-24771-JAD,
Although there is consensus that federal law should govern the determination of eligibility for trusts, a standard definition of the term "business trust" remains elusive. In 1989, the Honorable James Queenan observed that "[t]he decisions are sharply, and perhaps hopelessly divided[.]" In re Medallion Realty Tr.,
Three different approaches are evident from the case law, subject to various permutations. These approaches can be summarized as "the primary purpose" test, the multi-factor test, and a six-factor test derived from a Supreme Court tax case. See David S. Jennis and Kathleen L. DiSanto, Trust or Debtor: You Decide, 32 Am. Bankr. Inst. J. 34 (2013). Before considering these approaches, a review of pertinent case law from the First Circuit is warranted as the bankruptcy court fashioned its test with reference to several decisions from the U.S. Bankruptcy Court for the District of New Hampshire.
1. Case Law within the First Circuit
The U.S. Court of Appeals for the First Circuit has not formulated a test for defining business trusts for eligibility purposes, but bankruptcy courts in the First Circuit have been in the forefront when considering the issue.22
*655(a) Medallion Realty Trust
No discussion of business trusts would be complete without reference to In re Medallion Realty Trust. In that frequently cited case, Judge Queenan set forth relevant history pertinent to the issue of what constitutes a business trust. He stated:
The unadorned term "business trust" first appeared in a proposed new bankruptcy act which was part of the Report of the Commission on the Bankruptcy Laws of the United States, H.R. Doc. No. 93-137, 93d Cong., 1st Sess. Part II at 27, (1973). The Commission subsequently filed its proposal as a bill in both houses of Congress, thus commencing the legislative process which culminated in the Bankruptcy Reform Act of 1978, P.L. 95-598,92 Stat. 2549 . The Commission's report contains these statements:
The reference at the end of the definition to a "business trust" eliminates the requirement of the present Act that beneficial interest or ownership "be evidenced by certificate or other written instrument." The requirement gives undue significance to an evidentiary formality. In construing the term "business trust" the courts may be expected to give heed to the canon of e [j]usdem generis. Cf. Pope & Cottle Co. v. Fairbanks Realty Trust,124 F.2d 132 (1st Cir. 1941).
This explanation does not appear in any later legislative history. It is clear from the later history, however, that except for a "business trust" a trust is not a "person" eligible for relief. Both the House and Senate Committee Reports state: "The definition [of "person"] does not include an estate or a trust ..." H.R. Rep. No. 95-595, 95th Cong., 1st Sess. 313 (1977); S. Rep. No. 95-989, 95th Cong., 2d Sess. 25 (1978), U.S. Code Cong. & Admin. News 1978, pp. 5787, 5810, 6270.
....
The bankruptcy law of this country, unlike that of England, has always barred estates from relief in bankruptcy. 1 Collier on Bankruptcy, § 4 at 200 (13th ed. 1923). Under both the Bankruptcy Act of 1867 (14 Stat. 517 ) and the Bankruptcy Act of 1898 (30 Stat. 544 ) the courts construed the word "person" in the eligibility provision to exclude estates. In re Fackelman,248 F. 565 ( [ ] S.D. Cal. 1918) ; Adams v. Terrell,4 F. 796 ( [ ] W.D. Tex. 1880). As explained in Adams v. Terrell, a principal reason for doing so was the view that state probate law provides an adequate framework for the administration of insolvent estates. The continued use by Congress of the word "person" in the law's eligibility provision indicates Congressional agreement with this reasoning. In denying general eligibility to trusts, Congress presumably viewed trusts, even those of the intervivos variety, as being much like estates in that they are typically enmeshed in an estate plan and are under the control of state probate courts.
A trust which is not part of a settlor's estate plan presents different considerations. A probate court is not its traditional *656forum. Its beneficiaries are investors in a business enterprise rather than recipients of a settlor's largess. Congress obviously recognized these differences when in 1926 it amended what was then § 1(8) of the prior Act to allow bankruptcy relief for "any business conducted by a trustee or trustees wherein beneficial interest or ownership is evidenced by certificate or other written instrument." This opened the door to the traditional Massachusetts business trust. Because of the restrictive language, eligibility continued to be denied to a trust whose creating instrument was the only document evidencing beneficial ownership. E.g., Pope & Cottle Co. v. Fairbanks Realty Trust,124 F.2d 132 (1st Cir. 1941). The Commission's Report ... makes it clear that the Commission viewed this documentary requirement as a needless technicality.... The failure of Congress to spell this out further in a committee report seems inconclusive in comparison to the wording of the statute itself. That it chose to make such a change is sufficient indication of a purpose to broaden the types of trusts which can qualify. In re Treasure Island Land Trust,2 B.R. at 332 . That purpose is consistent with the general statutory framework which liberalized eligibility in other contexts. In re Tru Block Concrete Products, Inc.,27 B.R. 486 (Bankr. S.D. Cal. 1983).
In re Medallion Realty Tr.,
According to the court in Medallion, the distinction between trusts "created for the purpose of carrying on some kind of business or commercial activity for profit and those created to preserve the trust res ," while helpful, presented "too fine [a distinction] for practical application[.]"
(b) New Hampshire Bankruptcy Cases
Turning to the New Hampshire cases upon which the bankruptcy court below relied, In re Gonic Realty Trust,
In In re Woodsville Realty Trust,
My decision in In re Gonic,supra , may be read as conflicting with my present conclusion because there I stated that the Code's deletion of the Act's reference to trusts "wherein beneficial interest or ownership is evidenced by certificate or other written instrument," Bankruptcy Act § 1(8), meant that "the lack of transferable shares by numerous beneficiaries is no longer a relevant factor for decision." [50 B.R.] at 713. That was an overstatement. Transferable certificates are no longer relevant, but transferability per se is still relevant to the concept of an entity akin to a "corporation" for federal Bankruptcy Code purposes.
Id. at 5-6.
In In re BKC Realty Trust,
Because the First Circuit has not adopted a specific test, the three approaches referenced above, see supra at 654-55, assist in the determination of whether the bankruptcy court erred in the test it formulated. Those approaches can be better understood with reference to decisions relying upon a test fashioned by the United States Supreme Court in Morrissey v. Commissioner,
*6582. The Six-Factor Test - Morrissey v. Commissioner
The six-factor test set forth in Morrissey v. Commissioner was utilized by the court in In re Mosby, whose decision was affirmed by the Eighth Circuit. See 61 B.R. at 638. The court in Mosby set forth the characteristics for determining a business trust articulated by the Supreme Court, observing:
It is well established that a business trust is something more than simply a trust that carries on a business. Hecht v. Malley,265 U.S. 144 ,44 S.Ct. 462 ,68 L.Ed. 949 (1924). The distinguishing characteristics of a business trust include:
1. a trust created and maintained for a business purpose;
2. title to property held by trustees;
3. centralized management;
4. continuity uninterrupted by death among beneficial owners;
5. transferability of interests; and
6. limited liability.
Morrissey v. Commissioner,296 U.S. 344 ,56 S.Ct. 289 ,80 L.Ed. 263 (1935). Essentially, Congress included business trusts in the Bankruptcy Code definition of a corporation as a person because of their similarity to corporations. See, Associated Cemetery Management Incorporated v. Barnes,268 F.2d 97 (8th Cir. 1959).
In re Mosby, 61 B.R. at 638.
3. The Multi-Factor Approach - In re Secured Equipment Trust
The U.S. Court of Appeals for the Second Circuit considered the issue of what constitutes a "business trust" for purposes of debtor eligibility in In re Secured Equipment Trust, 38 F.3d at 89. It utilized the multi-factor approach for determining whether a trust created to serve as a vehicle to facilitate secured financing was a "business trust." Id. These factors are: (1) whether the trust at issue has attributes of a corporation; (2) whether it was created for the purpose of conducting a business or whether it was created "to protect and preserve the res "; (3) whether the trust engages in "business-like activities"; (4) whether the trust "transact[s] business for the benefit of investors"; and (5) whether there is "the presence or absence of a profit motive." Id. at 89-90 ; see also In re Blanche Zwerdling Revocable Living Tr.,
4. The Primary Purpose Test - In re Kenneth Allen Knight Trust
The U.S. Court of Appeals for the Sixth Circuit adopted a "primary purpose" test in In re Kenneth Allen Knight Trust,25 stating:
The standard consists in two propositions: first, "trusts created with the primary purpose of transacting business or carrying on commercial activity for the benefit of investors qualify as business *659trusts, while trusts designed merely to preserve the trust res for beneficiaries generally are not business trusts"; and second, "the determination is fact-specific, and it is imperative that bankruptcy courts make thorough and specific findings of fact to support their conclusions"-findings, that is, regarding what was the intention of the parties, and how the trust operated.
Application of the primary purpose test is not always straightforward, particularly where the trust may have been created with more than one purpose. For example, some trusts are intended to be estate-planning vehicles or to provide for the maintenance of the beneficiaries, but also authorize the trustees to invest the trust's assets. If, however, the trust was created with the primary purpose of transacting business or carrying on commercial activity, it will be deemed a business trust. See, e.g., Rubin Family Irrevocable Stock Tr.,
*660As one court stated in the context of a family trust:
If incidental business activity can transform a family trust into a qualified debtor then the dividing line really would evaporate since almost every family trust of realty or commercial property would involve some business activity in terms of upkeep and maintenance of the property together with paying taxes and other bills until the property is to be liquidated and distribution is made to family members.
In re Westgate Vill. Realty Tr.,
5. The Dille Family Trust Test
Among courts fashioning their own tests, the court in In re Dille Family Trust recently formulated a simplified test based upon its review of the earlier tests, stating:
[W]hether a trust constitutes a valid "business trust" turns upon two generally required elements. The first is whether the trust itself was created for the purpose of transacting business for a profit (as opposed to merely preserving a res for beneficiaries). The second is whether the trust in-fact has all of the indicia of a corporate entity. If both of these items are present, then the trust at issue is more than a gratuitous or ordinary trust and is a business trust. If any one of these two characteristics is not present, then the trust is not a "business trust" and is ineligible for bankruptcy relief under Chapter 11 pursuant to11 U.S.C. § 109 (d).
6. Pension Related Cases
A number of courts have found the reasoning articulated by the New Hampshire bankruptcy court in BKC Realty Trust,
*661In another case involving pension benefits, the court determined, in the context of an employee benefit trust fund's request for a preliminary injunction, that the trust was not eligible to seek chapter 11 relief because it was "not engaged in any business activities and d[id] not generate any business profits." In re Westchester Cnty. Civil Serv. Emps. Ass'n, Inc., Benefit Fund,
In In re Affiliated Food Stores, Inc. Group Benefit Trust,
The type of business activity described in the trust instrument contrasts sharply with that of donative trusts, entities traditionally excluded by the Bankruptcy Act and Code from the category of business trusts. Here Debtor's principal purpose is not effectuating a settlor's estate plan through the preservation of a trust res. The purpose of its business activity is designed to lower costs of health care coverage for the member stores. Debtor does not merely hold title to funds and attempt to preserve them for the benefit of member stores' employees. Through pooling the assessments paid by the member stores, it provides health care coverage for member stores' employees at a financial discount.... Debtor analogizes its business activity to that of a large volume purchaser of medical services, such as an HMO, which, through arrangements reached with health care providers, is able to control costs for its enrollees. The lowered health costs represent a tangible financial benefit realized by both the member stores and the Trust beneficiaries, whose claims are paid through this system.
As one court noted when considering the "sound reasoning" of the Affiliated Food Stores court in determining that the health care trust before it was a business trust:
Providing health care benefits to employees is a major activity of American business, involving substantial allocations of funds.
A health care trust might be likened to [a] jointly owned subsidiary of a business. It takes the place o[f] private or self-funded insurance which must be characterized as a business in nature. In fact, the expenses of insurance and health care are a major factor in many bankruptcies. The Plan and other analogous plans are founded on the belief that they are an administratively efficient method of assisting groups of employers in supplying health care benefits to large pools of employees at reduced costs. Without such collaborative practices, the already almost unmanageable costs of health care would undoubtedly be even higher. To the small employers and unions that generally take advantage of such devices, these plans are critical business arrangements.
*662Cutler,
Regardless of whether the primary purpose test, or some other test, is applied to determine whether an entity is eligible to be a debtor under § 109 of the Bankruptcy Code, "[t]he one overriding principle that emerges from the cases is that the determination of whether a trust is a business trust is fact-specific and focuses on the purpose and operations of the trust." Jin Suk Kim Tr.,
Courts, when dealing with a trust's eligibility for bankruptcy relief, generally focus not on how they were formed but rather on whether the trust existed solely to preserve and protect assets, whether it operates only passively, whether the trustee actually conducts business as it is ordinarily understood , whether the trust was created as a family trust for family purposes, whether control was exclusively vested in a trustee, and whether the trust's beneficiaries were investors and hence expecting a profit from operations just as in any other private business.
Robert J. D'Agostino, The Business Trust and Bankruptcy Remoteness, 2011 Ann. Surv. of Bankr. L. 4, 5-6 (2011) (emphasis added) (footnotes omitted).
Although courts examine trust documents, it is not appropriate to focus solely on the formation document to determine whether a trust is a business trust. In re Jin Suk Kim Tr.,
Given the various approaches to what constitutes a business trust, we conclude that the multi-factor approach is correct and that in future cases the distilled multi-factor approach advanced by the court in In re Dille Family Trust provides a proper, as well as a practical, standard that strikes a fair balance among factors various courts have considered. In Dille, the court stated:
A fair reading or synthesis of the case law cited above is that the riddle of whether a trust constitutes a valid "business trust" turns upon two generally required elements. The first is whether the trust itself was created for the purpose of transacting business for a profit (as opposed to merely preserving a res for beneficiaries). The second is whether *663the trust in-fact has all of the indicia of a corporate entity. If both of these items are present, then the trust at issue is more than a gratuitous or ordinary trust and is a business trust. If any one of these two characteristics is not present, then the trust is not a "business trust" and is ineligible for bankruptcy relief under Chapter 11 pursuant to11 U.S.C. § 109 (d).
In re Dille Family Tr.,
II. Whether the Bankruptcy Court Erred in Determining that the Pension Trust Was Not a Business Trust
A. The Standard Applied by the Bankruptcy Court
Like the bankruptcy court, we consider the dispositive issue to be whether the Pension Trust is a business trust. In making that determination, the bankruptcy court employed the following factors: (1) "whether the trust was created for the purpose of carrying a business, as opposed to the preservation of the res "; (2) "whether the trust has the attributes of a corporation"; (3) "whether the trust engages in business-like activities"; and (4) "whether the trust has a profit motive." In re Catholic Sch. Emps. Pension Tr.,
According to the bankruptcy court, the second factor, that the trust must have the attributes of a corporation, especially the transferability of interests, stems from the following decisions: In re Gonic Realty Tr., supra, In re Woodsville Realty Tr., supra, and In re Parade Realty Tr., supra. In re Catholic Sch. Emps. Pension Tr.,
B. Did the Bankruptcy Court Apply the Correct Standard?
The bankruptcy court engaged in a fact-specific analysis considering the totality of the circumstances based on the Trust documents as well as the actual operations of the Pension Trust using a four-part test. The bankruptcy court articulated the relevant factors developed from those set forth by the New Hampshire bankruptcy court in In re BKC Realty Trust, In re Woodsville Realty Trust, and In re Gonic Realty Trust, and the Second Circuit in In re Secured Equipment Trust, 38 F.3d at 90 ("[R]egardless of whether generating a profit is a necessary element of a business trust, petitioners cannot dispute that many courts have found the presence or absence of a profit motive influential in their determination of whether the trust at issue was a business trust."). Absent First Circuit authority, the bankruptcy court properly developed and applied a standard that incorporated required elements utilized by both circuit and bankruptcy courts in the *664cases discussed above. Additionally, the standard was consistent with the two-part standard employed by the court in Dille that synthesized the existing factors used by courts engaging in a multi-factor review. The factors it utilized were warranted and useful for making a determination as to whether the Pension Trust is a business trust for eligibility purposes. The New Hampshire bankruptcy court's practical three-part test was well-reasoned, combining traditional trust principles with the less restrictive totality of the circumstances approach. Accordingly, conducting de novo review, we conclude the bankruptcy court did not err in adopting the standard used to resolve the issue of whether the Pension Trust satisfied its ultimate burden of demonstrating that it was a business trust. See In re Gulfcoast Irrevocable Tr.,
C. The Pension Trust's "Temporal Aspect" Argument
The Pension Trust challenges the bankruptcy court's determination that the Trust was not a business trust, contending that all of the factors articulated by the bankruptcy court were satisfied and the bankruptcy court erred in its analysis. It asserts the bankruptcy court erred by resting its determination on the Pension Trust's post-termination activities "rather than giving weight to the decades of business activities and business-like decision-making processes undertaken during the pre-termination period." According to the Pension Trust, the bankruptcy court imposed a "temporal constriction" in its analysis by limiting its consideration to the Trust's activities after the termination.
The Pension Trust's argument is unpersuasive for two reasons: (1) the bankruptcy court did not impose a "temporal constriction" in its analysis; and (2) regardless of whether the court looks at the Pension Trust's activities on the petition date or over the course of its existence, the Pension Trust did not qualify as a business trust at any time.
1. No "Temporal Constriction" by the Bankruptcy Court
Although the Pension Trust argues that the bankruptcy court limited its consideration to the Trust's post-termination activities, a reading of the Dismissal Order does not show that the bankruptcy court imposed the "temporal constriction" suggested by the Pension Trust. First, although the bankruptcy court did not identify every provision of the Trust documents on which it relied, it expressly stated that its decision was based on "due consideration of the [P]ension [T]rust documents, the Pension Plan, the uncontested facts as the parties presented the same to the court, and the applicable law[.]" In re Catholic Sch. Emps. Pension Tr.,
2. The Relevant Date for Determining the Pension Trust's Status as a Business Trust
Although there is an abundance of case law on the question of what constitutes a business trust for bankruptcy purposes, the cases do not address the "temporal aspect" of the court's determination-i.e., what is the appropriate date or time period for the bankruptcy court to consider when determining the trust's status as a business trust. Eligibility for bankruptcy relief is generally determined as of the petition date. Thus, in this case, determination of whether the Pension Trust is eligible for bankruptcy relief as a business trust does not hinge on the termination date of the Pension Plan. The pre-petition termination of the Pension Plan was not determinative of the Pension Trust's eligibility to be a debtor. The bankruptcy court, without expressly ruling, correctly determined the eligibility of the Pension Trust at the petition date as it accepted evidence of Trust activities after the termination of the Pension Plan. In re Catholic Sch. Emps. Pension Tr.,
D. Applying the Bankruptcy Court's Standard
1. The Purpose of the Pension Trust
The record reflects that the Trust was created to administer the Pension Plan and to manage, invest, and distribute assets received from participating employers in the Pension Plan. The Deed of Trust provides that, at all times, the Trust's assets are held for the exclusive benefit of the Plan participants and their beneficiaries, and the Pension Plan provides that it was created "for the exclusive benefit of the employees of the participating employers and/or their beneficiaries[.]" The Trust's assets primarily consisted of contributions from participating employers, although it also included any "income therefrom." The Deed of Trust required the trustees to make "payments of benefits from the Trust" and to pay the "reasonable expenses of the plan and trust."
There is no question that the trustees were required by the Deed of Trust to invest and reinvest the Trust's assets. The Deed of Trust provided: "The Trustees shall invest and reinvest the Trust [assets] ... in such bonds, notes, debentures, mortgages, preferred or common stocks, pooled investment funds, or in such other properties real or personal, and/or securities of any kind, class, or character as the Trustee[s] may deem suitable[.]" The trustees also were required, however, to "diversify[ ]" their investments "so as to minimize the risk of large losses[.]" Therefore, the Trust was not created for a business purpose, let alone primarily for a business purpose. Rather, the Trust documents reflect that the Trust was intended as a "passive" investment vehicle. Moreover, the trustees passively managed the Trust assets as the participant employers' contributions were invested in UBS and Popular Securities.
Dr. Guzmán testified that the Trust was a "not for profit" organization, the only "original source of income" was from employer contributions, and the trustees were *666responsible for the "administration" of the Trust funds. He also testified that the "purpose" of the Trust was to "preserve" Trust funds, and "to make it grow," so that there would be "money [ ] there to pay" benefits to employees and the Trust's operational expenses. This testimony supports the conclusion that the purpose of the Trust when it was created was the preservation of the res so that the Trust had the funds to distribute pension payments to Plan participants when directed to do so by the committee.
The Pension Trust, of course, asserts that the Trust was created primarily for a business purpose, arguing the Deed of Trust "mandates the trustees to increase and maximize the funds 'in the conduct of an enterprise of a like character with like aims.' " According to the Pension Trust, this "clear mandate" demonstrates the "business purpose of the Trust geared towards asset maximization." While it can be inferred that the purpose of investing the Trust's assets was to increase their value through positive investments returns, nowhere in the Deed of Trust does it require the trustees to "increase and maximize" funds. In fact, the Deed of Trust requires the trustees to take a low-risk investment approach by diversifying their investments to minimize the risk of large losses. Moreover, the Deed of Trust does not require the trustees to invest " 'in the conduct of an enterprise of a like character with like aims,' " as asserted by the Pension Trust. The Pension Trust has taken the quoted language out of context. The Deed of Trust requires the trustees to discharge their duties "with the care, prudence, and diligence ... that a prudent man ... would use in the conduct of an enterprise of a like character with like aims." This does not mean the trustees were required to aggressively invest the Trust's assets with the primary goal of maximizing interest and dividends.
The cases upon which the Pension Trust relies are distinguishable from this case. For example, in Jin Suk Kim Trust, the court determined that:
[F]rom the moment of its inception, Kim managed the Debtor to maximize its profits and the value of its assets in order to enhance the overall wealth of her family. She managed it, and the real estate assets it acquired, the same way she ran her other businesses, without regard to trust principles, including traditional trust principles of prudent, diversified investment and protection of trust res.
Similarly, in Rubin Family Irrevocable Stock Trust, the court held that the trust, which was established as an estate-planning vehicle, qualified as a business trust because its primary purpose was to generate profits.
In light of all this risk-taking with the res , it would defy reason to conclude that the primary purpose of the Trust Debtors is to 'protect and preserve' it. If the protection and preservation of the res were the Trust Debtors' primary purpose, then they would invest much more conservatively than they have done.
Id. (emphasis added).
The courts in these cases emphasized the profit-making goal of the business trust and the objective of distributing that profit to the business owners as returns on their investment. Here, the investment *667purpose of the Trust was "incidental" to the Trust's primary purpose of collecting contributions from participating employers, and preserving those contributions for distribution to the Plan participants in the form of pension payments. Although the Pension Trust also sought to generate income, it was only authorized to do so, and, in fact, did so, by engaging in "passive" forms of investment (such as common stock or other securities, certificates of deposit, and the like), rather than in active forms of investment (like real estate development activity and high-risk investments). See In re St. Augustine Tr.,
2. Substantial Attributes of a Corporation
Courts have not articulated a uniform list of factors to consider when assessing whether a trust has substantial attributes of a corporation to qualify as a business trust. Rather, they tend to look at the specific characteristics of the trust and determine whether, based on a totality of the circumstances, the trust has a sufficient number of the attributes of a corporation. One of the most significant considerations for the court when determining whether a trust has the attributes of a corporation is "whether the trust's beneficiaries were investors and hence expecting a profit from operations just as in any other private business." See D'Agostino, The Business Trust and Bankruptcy Remoteness, supra, at 6; see also In re Woodsville Realty Tr.,
The Pension Trust argues that it has the following attributes of a corporation: (1) it engages in business-related activities; (2) it is governed by a board of trustees which "is akin to a Board of Directors" with "ample powers to manage and [m]ake decisions in favor of maximizing the funds for the benefit of pensioners, employers and beneficiaries"; (3) the Deed of Trust authorizes the trustees to hire personnel; and (4) the Deed of Trust limits the trustees' liability for actions taken in accordance with its terms.
As the Pension Trust asserts, the Deed of Trust reflects that the Pension Trust is governed by a board of trustees, the trustees are authorized to hire, and, in fact, hired personnel, and the Deed of Trust limits the trustees' liability. That is not, however, the end of the inquiry. The record also reflects that the Trust lacks many of the other commonly recognized attributes of a corporation. Dr. Guzmán testified that the Pension Trust has no "inventory of goods for sale," "machinery or equipment for manufacturing," "real estate," or "intellectual property." The Trust's only assets were approximately $ 1.6 million-consisting of "money contributed by the participating employers" and "dividend and/or interest[ ]"-and approximately $ 1.7 million in "accounts receivable"-representing *668amounts still owed by participating employers. It does not have any loans from third parties or lines of credit.
Most importantly, however, the Trust is completely funded by the participating employers. There are no outside investors and the Plan participants and beneficiaries make no contributions to the Trust. The participants are not investors who contribute capital to the Trust with the expectation of receiving a return on their investment from the operation of a business. The participants and their beneficiaries do not hold anything equivalent to a stock certificate and are prohibited from transferring or assigning their beneficial rights. They are not equity investors or contributors to capital. Therefore, the Trust is more akin to a traditional trust which has been formed for the purpose of effecting, preserving, and protecting a gift or contribution, rather than a profit-generating corporation.
The Pension Trust argues that the bankruptcy court erred in giving too much "weight" to the "lack of transferability of assets" of the Pension Trust and in concluding that there was a lack of transferability. This argument is unpersuasive because it confuses the transferability of assets with the transferability of beneficial interests under the Pension Plan. The Pension Trust is correct that the bankruptcy court found that the "transferability of Trust property is limited to qualified persons," but is not entirely prohibited. See In re Catholic Sch. Emps. Pension Tr.,
The bankruptcy court correctly ruled that while the Pension Trust exhibited several of the attributes of a corporation, based on a totality of the circumstances, the Pension Trust did not have enough of such attributes to qualify as a business trust. Significantly, in addition to lacking capital contributions by the Plan participants and the transferability of beneficial interests, the Pension Trust lacked one of the other most important characteristics of a corporation-it did not engage in business-like activities. See *669In re Treasure Island Land Tr.,
3. Engages in Business-Like Activities
The Pension Trust argues that, prior to its termination, it was engaged in business activities that were consistent with "asset maximization" as evidenced by its investment of "sizeable amounts" with various "money makers" which investments were "pooled together with the Participating Employer[s'] contributions [to] maximize the Trust's assets[.]" In addition, the Pension Trust asserts that its "commercial activities" included: (1) "investing in capital markets, managing portfolios, [and] supervising investments"; (2) "keeping a payroll for regular employees for its support and routine maintenance"; (3) "conduct[ing] business which require[d] specific accounts with the IRS, Puerto Rico Treasury Department and the State Insurance Funds"; (4) "serv[ing] as an account receivable division to collect from [P]articipating [E]mployers"; (5) "invoic[ing] on a regular monthly basis"; and (6) "manag[ing] and contract[ing with] professionals such as attorneys, accountants, financial advisors, and money managers." Although the record reflects that the Pension Trust was authorized to make investments and employ professionals, and Dr. Guzmán testified that the trustees transferred money to UBS and then to Popular Securities to invest, the other asserted "commercial activities" are not supported by the testimony of Dr. Guzmán or any other part of the record.
As discussed above in connection with the "primary purpose" analysis, although the record reflects that the Trust sought to generate income by transferring funds to various investment companies, the trustees were only authorized to engage in passive forms of investment (such as the purchase of common stock or other securities, certificates of deposit, and the like), rather than in active forms of investment (like real estate development activity and high-risk investments). "The mere fact that [a] settlor intended to enhance the assets through commercial activity does not equate th[e] entity with a corporation, and [ ] bring it within the scope of § 101 [9]." In re St. Augustine Tr.,
The Pension Trust also argues that the bankruptcy court erred by failing to consider the "financial hardships that had a detrimental effect on the Trust's business activities." According to the Pension Trust, the "fall of money markets had a significant detrimental effect on the Trust's business activities, further contributing to its financial hardship." These financial hardships, the Pension Trust alleges, "are clear evidence that the Trust behaved as a corporation that struggled to continue under a profitable scenario" and "clear evidence of its business nature[.]" The bankruptcy court correctly observed, however, that allegations regarding the economic reasons which prompted the filing of the bankruptcy petition are not directly related to the Pension Trust's eligibility to file a bankruptcy petition.
4. The Totality of the Circumstances
Based upon the foregoing, the bankruptcy court properly employed a burden shifting approach, placing the ultimate burden of establishing eligibility under §§ 109(d) and 101(9) and (41) on the Pension Trust. The bankruptcy court also formulated and applied a proper standard for eligibility, and correctly ruled that: (1) the Trust was not formed "primarily for a business purpose"; (2) the Trust has some "attributes of a corporation," but does not have two of *670the most important attributes-the contribution of capital by the beneficiaries and the transferability of beneficial interests; and (3) although the Trust may have engaged in "passive" investment activities which produced gains and losses, those activities were "incidental" to the trustees' duties to preserve, protect, and distribute the trust res. The Trust documents clearly establish that the Trust's primary purpose was the preservation of the trust res for distribution to the Plan participants and Dr. Guzmán's testimony demonstrated that the Pension Trust's activities were limited to low-risk investment of the res. Based on the totality of the circumstances as reflected in the record, the Pension Trust failed to establish that it was a business trust and thus does not qualify as a debtor under the Bankruptcy Code.
CONCLUSION
The Dismissal Order is AFFIRMED.
Related
Cite This Page — Counsel Stack
599 B.R. 634, Counsel Stack Legal Research, https://law.counselstack.com/opinion/catholic-sch-emps-pension-trust-v-abreu-bap1-2019.