In re Jensen

496 B.R. 615, 2013 WL 3877818, 2013 Bankr. LEXIS 3014
CourtUnited States Bankruptcy Court, D. Utah
DecidedJuly 26, 2013
DocketNo. 12-33826
StatusPublished
Cited by6 cases

This text of 496 B.R. 615 (In re Jensen) is published on Counsel Stack Legal Research, covering United States Bankruptcy Court, D. Utah primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re Jensen, 496 B.R. 615, 2013 WL 3877818, 2013 Bankr. LEXIS 3014 (Utah 2013).

Opinion

MEMORANDUM DECISION

WILLIAM T. THURMAN, Bankruptcy Judge.

The matter before the Court is the confirmation of the Chapter 13 Plan (“Plan”) [617]*617of Robert and JoAnn Jensen (the “Debtors” or “Robert” and “JoAnn” individually) dated November 1, 2012. Through counsel, the Chapter 13 Trustee filed an objection to the Plan on December 6, 2012 and filed continuing objections on January 23, 2013 and March 22, 2013. In all of those objections, the Trustee argued that the Plan should not be confirmed because, inter alia, the Debtors were improperly calculating their disposable income as required in § 707(b) and § 1325(b).1

For above median debtors, disposable income is calculated by fully completing the Chapter 13 Statement of Current Monthly Income and Calculation of Commitment Period and Disposable Income (“Form 22C”).2 Here, the Debtors are taking a deduction on Line 55 of Form 22C for voluntary retirement contributions begun within three months prior to the date of petition. The Trustee objected specifically that the Debtors must establish that they filed their petition in good faith and that they did not initiate the voluntary retirement contributions for the sole purpose of maximizing the deductions on Form 22C.

The Court conducted several hearings on this matter and has received and reviewed briefs from the parties. At the most recent hearing on May 9, 2013, the Court heard oral argument from David T. Berry on behalf of the Debtors and from Kevin R. Anderson, the Chapter 13 Trustee (the “Trustee”). At the conclusion of the hearing, the Court took the matter under advisement.

As an apparent issue of first impression in this Court, the question presented by this case is whether voluntary contributions to a qualified retirement plan constitute disposable income for purposes of a chapter 13 plan.

The Court has carefully considered the parties’ briefs and memoranda, the statutory authority, and case law and has conducted its own independent research of the law. The Court issues the following Memorandum Decision, which constitutes the Court’s findings of fact and conclusions of law under Federal Rule of Civil Procedure 52, made applicable to this proceeding by Federal Rules of Bankruptcy Procedure 9014 and 7052.

I. JURISDICTION AND VENUE

The Court has jurisdiction over this matter pursuant to 28 U.S.C. § 1334. The confirmation of a chapter 13 plan is a core proceeding under 28 U.S.C. § 157(b)(2)(D). Venue is properly laid in this District under 28 U.S.C. § 1408.

II. BACKGROUND AND FINDINGS OF FACT

The Debtors began this case by filing a voluntary petition for relief under chapter 13 of the Bankruptcy Code on October 31, 2012. Their Form 22C, filed on November 14, 2012, listed a current monthly income of $6,360.89, which, when annualized, places them over the median income threshold for a family of three in Utah.3 Form 22C also listed a qualified retirement deduction on Line 55 in the amount of $541.67. The Debtors’ monthly disposa[618]*618ble income on Line 59 was calculated as - $180.74. The Debtors filed an Amended Form 22C on January 31, 2013, which did not change the deduction for the voluntary retirement contribution, but did reduce a Line 57 deduction for an old car expense by $50, thereby changing Debtors’ monthly disposable income to -$130.74.

The $541.67 deduction on Line 55 represents the average monthly contribution Debtor JoAnn Jensen makes to her employer-sponsored retirement plan under § 457 of the Internal Revenue Code.4 JoAnn had not made any contributions to her retirement plan during 2012 until she initiated contributions commencing with the August 6, 2012 pay period,5 which was less than three months prior to the date of petition. According to the Debtors, there were two reasons motivating them to begin making contributions at that time. First, when JoAnn’s sister passed away earlier that summer, she did not leave her family with any savings, which gave the Debtors some degree of concern for themselves. Second, the Debtors were concerned that Social Security might run out of funds by the time they applied for it.6 JoAnn has been with the same employer since 1989,7 and Debtors are approximately 48 and 47 years old.8

JoAnn has continued making contributions to her retirement plan through her paycheck dated April 30, 2013. Debtor Robert Jensen is not contributing to a retirement plan.9

Debtors’ Plan proposes payments of $130 per month for 44 months and $418 per month for 16 months. Unsecured creditors will receive a return from the “plan base,”10 meaning that Debtors are required to make monthly plan payments for the duration of the 60-month commitment period. Once all other disbursements provided for in the Plan have been paid in full, the remaining balance, if any, will be apportioned among the nonpriority unsecured creditors according to their pro rata share. As stated by the Trustee, the proposed plan base totals $12,408 plus tax refunds.11 After deducting secured and administrative claims, the Trustee estimates that $2,352 will be available for distribution to unsecured creditors, with the caveat that that figure may increase with the receipt of tax refunds or may decrease with the allowance of additional attorney’s fees.12 The Court’s Claims Register shows four unsecured claims totaling $21,782.14, consisting primarily of credit card debt, and a pro rata distribution of $2,352 on those claims would result in a 10.8% dividend. Over the length of the Plan, the Debtors’ retirement contributions would total approximately $32,500.

III. DISCUSSION

A Debtors’ Voluntary Retirement Contributions Do Not Constitute Disposable Income

In this case, the Court is called upon to determine whether voluntary eon-[619]*619tributions to a qualified retirement plan are excluded from a debtor’s disposable income and therefore sheltered from repayment to creditors in the context of a chapter 13 plan. Part of the Court’s task involves interpreting additions to the Bankruptcy Code made by the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 (“BAPCPA”),13 a far-reaching legislative enactment that has engendered no shortage of exegetical conundrums.

The first step in statutory interpretation is to look at the language of the statute itself.14 If the language of the statute is clear, “the sole function of the courts is to enforce it according to its terms.”15

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Cite This Page — Counsel Stack

Bluebook (online)
496 B.R. 615, 2013 WL 3877818, 2013 Bankr. LEXIS 3014, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-jensen-utb-2013.