Hildebrand v. Kimbro (In Re Kimbro)

389 B.R. 518, 59 Collier Bankr. Cas. 2d 1356, 2008 Bankr. LEXIS 1692, 2008 WL 2369141
CourtBankruptcy Appellate Panel of the Sixth Circuit
DecidedJune 12, 2008
DocketBAP 07-8052
StatusPublished
Cited by48 cases

This text of 389 B.R. 518 (Hildebrand v. Kimbro (In Re Kimbro)) is published on Counsel Stack Legal Research, covering Bankruptcy Appellate Panel of the Sixth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Hildebrand v. Kimbro (In Re Kimbro), 389 B.R. 518, 59 Collier Bankr. Cas. 2d 1356, 2008 Bankr. LEXIS 1692, 2008 WL 2369141 (bap6 2008).

Opinions

OPINION

STEVEN RHODES, Bankruptcy Appellate Panel Judge.

This appeal requires the Panel to decide whether in the means test of 11 U.S.C. § 707(b)(2)(A)(ii)(I), a debtor may deduct an “ownership expense” for a vehicle that is subject to neither secured debt nor a lease. For the reasons stated herein, the Panel concludes that the debtor is entitled to that expense deduction and affirms the decision of the bankruptcy court.

I. JURISDICTION AND STANDARD OF REVIEW

The Bankruptcy Appellate Panel of the Sixth Circuit has jurisdiction to decide this appeal. The United States District Court for the Middle District of Tennessee has authorized appeals to the BAP. A final order of a bankruptcy court may be appealed by right under 28 U.S.C. § 158(a)(1). For purposes of appeal, an order is final if it “ ‘ends the litigation on the merits and leaves nothing for the court to do but execute the judgment.’ ” Midland Asphalt Corp. v. United States, 489 U.S. 794, 798, 109 S.Ct. 1494, 1497, 103 L.Ed.2d 879 (1989) (citations omitted).

The only issue on appeal is whether a debtor may claim the “vehicle ownership expense” on the means test form for a vehicle that is not encumbered by debt or subject to a lease. This is a legal issue which is reviewed de novo. See Nicholson v. Isaacman (In re Isaacman), 26 F.3d 629, 631 (6th Cir.1994). “De novo review requires the Panel to review questions of law independent of the bankruptcy court’s determination.” First Union Mortgage Corp. v. Eubanks (In re Eubanks), 219 B.R. 468, 469 (6th Cir. BAP 1998) (citation omitted).

II. FACTS

The facts of this case are not in dispute. The Kimbros filed a voluntary chapter 13 bankruptcy petition on June 7, 2007. Their yearly income exceeded the state median income for a family of their size. The trustee objected to the Kimbros’ chapter 13 plan, asserting that it did not comply with 11 U.S.C. § 1325(b).

Section 1325(b) provides:

If the trustee or the holder of an allowed unsecured claim objects to the confirmation of the plan, then the court may not approve the plan unless, as of the effec[521]*521tive date of the plan — ... the plan provides that all of the debtor’s projected disposable income to be received in the applicable commitment period beginning on the date that the first payment is due under the plan will be applied to make payments to unsecured creditors under the plan.

11 U.S.C. § 1325(b)(1)(B).

For purposes of § 1325(b), the term “disposable income” means the current monthly income received by the debtor less amounts reasonably necessary to be expended for the maintenance or support of the debtor or a dependent of the debtor and for charitable contributions. 11 U.S.C. § 1325(b)(2)(A)(I) and (ii). Subpar-agraph (3) provides: “Amounts reasonably necessary to be expended under paragraph (2) shall be determined in accordance with subparagraphs (A) and (B) of section 707(b)(2), if the debtor has current monthly income” greater than the median income. 11 U.S.C. § 1325(b)(3).

The Kimbros’ means test form, Form 22C, disclosed monthly disposable income of $183.60. Using the means test form to calculate this amount of “disposable income,” the Kimbros deducted an ownership expense of $358.82 for their first vehicle. This figure was calculated by subtracting their car payment of $112.18 from the Local Standard of $471.18, as required by 11 U.S.C. § 707(b)(2)(A)(ii)(I). The Kimbros also deducted an ownership expense $332 for the Kimbros’ second vehicle. The Kim-bros reported no payment on any debt secured by the second vehicle.

The trustee argues that the Kimbros’ plan did not propose to pay all “projected disposable income” to unsecured creditors because on Form 22C, the Kimbros deducted a vehicle ownership expense for a second vehicle for which they were not indebted and did not make any payments. In support of this argument, the trustee relies on the Internal Revenue Manual, Financial Analysis Handbook (“IRM”), which he contends does not allow taxpayers to claim an ownership expense for a vehicle for which they do not make payments.1 Accordingly, the trustee asserts that the monthly disposable income reflected on the Kimbros’ means test form does not accurately reflect their disposable income. The trustee asserts that the Kim-bros are not entitled to deduct the expense and that the bankruptcy court erred in confirming the plan.

III. DISCUSSION

The issue of whether a debtor may deduct a vehicle ownership expense in the bankruptcy means test when the debtor has no debt or lease payment has arisen with some frequency since the enactment of the 2005 amendments to the bankruptcy code. At least twenty eight published decisions have addressed the issue and there is a close split of authority on the question.2

The issue arises based on the language in 11 U.S.C. § 707(b)(2)(A)(ii)(I), the means test, which states, “The debtor’s monthly expenses shall be the debtor’s applicable monthly expense amounts specified under the National Standards and Local Standards, and the debtor’s actual monthly expenses for the categories specified as Other Necessary Expenses issued by the Internal Revenue Service for the [522]*522area in which the debtor resides[.]” The reference to National and Local Standards is to the standards used by Internal Revenue Service for revenue officers to determine a taxpayer’s ability to pay a delinquent tax. These standards are compiled in a table format and are published on the internet. The U.S. Trustee’s website and most bankruptcy courts’ websites provide links to these standards.

The Local Transportation Standards vary by census region. There are two components, one for operating expenses and one for ownership expenses. The table for “Operating Costs and Public Transportation Costs” sets forth various amounts depending on whether the debtor owns no car, one car or two cars. The table for “Ownership Costs” provides amounts for the debtor’s “first car” and “second car.”

The IRS Local Transportation Standards do not state or suggest that a taxpayer must have a debt or lease payment for the revenue officer to deduct the applicable ownership expense. However, the trustee argues that because under the IRM, the IRS does not deduct a vehicle ownership expense when there is no debt or lease payment for the vehicle, 11 U.S.C.

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Cite This Page — Counsel Stack

Bluebook (online)
389 B.R. 518, 59 Collier Bankr. Cas. 2d 1356, 2008 Bankr. LEXIS 1692, 2008 WL 2369141, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hildebrand-v-kimbro-in-re-kimbro-bap6-2008.