In re Reinhart

559 B.R. 217, 2016 WL 5787248
CourtUnited States Bankruptcy Court, E.D. Wisconsin
DecidedSeptember 30, 2016
DocketCase No. 16-21042-beh
StatusPublished

This text of 559 B.R. 217 (In re Reinhart) is published on Counsel Stack Legal Research, covering United States Bankruptcy Court, E.D. Wisconsin primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re Reinhart, 559 B.R. 217, 2016 WL 5787248 (Wis. 2016).

Opinion

DECISION SUSTAINING TRUSTEE’S OBJECTION TO CONFIRMATION

Beth E. Hanan, United States Bankruptcy Judge

The Trustee has objected to confirmation of Mr. Reinhart’s Chapter 13 plan, asserting that the plan fails to pay all of Mr. Reinhart’s disposable income under 11 U.S.C. section 1325(b). Specifically, the Trustee asserts that Mr. Reinhart’s calcu-lation of his current monthly income (“CMI”) should have included reimburse-ments from his employer for mileage and meals, but not the corresponding expenses which prompted the reimbursements. Had only the reimbursement amounts been in-cluded, the debtor’s CMI would have yield-ed an above-median income status on Form 122C-1 of the means test, and conse-quently a 60-month plan commitment peri-od. 11 U.S.C. § 1325(b)(4).

Mr. Reinhart works as a salesman for Vita Healthcare Corp. Midwest. As part of his duties, he takes customers out for business meals and uses his personal vehicle for work travel. Mr. Reinhart’s employer reimburses him at 47 cents per mile, and reimburses him for meals after he supplies receipts. Mr. Reinhart has proposed a 46-month plan that pays in a total of $13,450. The plan provides for a claim secured by the debtor’s vehicle, the costs of adminis-tration, and a 1% dividend to general unse-cured creditors.

When calculating his current monthly income on Form 122C-1, Mr. Reinhart list-ed on line 2 his gross wages, salary, tips, bonuses, overtime, and commissions, be-fore payroll deductions, in the amount of $5,559.47. Although he is not self-em-ployed, on line 5 he listed net income from operating a business, profession, or farm in the amount of $0—an amount represent-ing $1,022.28 in reimbursement receipts from his employer reduced by the same amount for work-related mileage and food expenses. The result is that Mr. Reinhart’s CMI as shown on Line 14 is $5,559.47. That amount, when annualized on Line 15b, is below the median family income for a household of three and requires a three-year plan commitment period.1 Similarly, on Line 8(a) of his Schedule I, he entered $0 for net income from operating a business.

The Trustee argues that reimburse-ments are income, and also that it is inap-[219]*219propriate to net a reimbursement against its corresponding expense when calculat-ing a debtor’s CMI. Consequently, the Trustee asserts that Mr. Reinhart’s actual current monthly income is $6,581.75 ($5,559.47 + $1,022.28), which when annu-alized is above the median family income for a household of three and requires him to propose a plan with a five-year term.2 When the Trustee objects to confirmation of Chapter 13 plan, the court may not confirm the plan unless “the plan provides that all of the debtor’s projected disposa-ble income to be received in the applicable commitment period ... will be applied to make payments to unsecured creditors un-der the plan.” 11 U.S.C. § 1325(b)(1)(B).

The issue for the court is how, if at all, employment-related reimbursements are factored into the debtor’s current monthly income.3

The analysis begins by consulting the text of the Code. Where the language of the statute is clear, the court’s function is to enforce the statute according to its terms unless the disposition required by its terms is absurd. Lamie v. United States Trustee, 540 U.S. 526, 534, 124 S.Ct. 1023, 157 L.Ed.2d 1024 (2004).

Section 101 (10A) of the Bankruptcy Code defines current monthly income as “the average monthly income from all sources that the debtor receives ... with-out regard to whether such income is taxable income,” that is derived during the 6-month period before commencement of the case. 11 U.S.C. § 101(10A)(A). CMI in-eludes any amount paid by any entity other than the debtor on a regular basis for the household expenses of the debtor or the debtor’s dependents. CMI expressly excludes benefits under the Social Security Act, payments to victims of war crimes or crimes against humanity, and payment to victims of international or domestic terrorism. 11 U.S.C. § 101(10A)(B). Section 1325(b)(2) of the Code defines “disposable income” as “current monthly income” less “amounts reasonably necessary to be ex-pended” by a debtor.

Two things are immediately apparent from these texts—CMI necessarily is de-termined before disposable income is de-termined, and the Code envisions deduction for expenses once: in the disposable income calculation, but not in the CMI calculation.

The parties do not cite and the court could not identify case law directly on point, where the debtor is not self-em-ployed but seeks to include employer reim-bursement income netted against required employment-related expenses as part of his CMI calculation. Consequently, the court draws guidance from cases address-ing the netting question for self-employed debtors.

A majority of courts considering this analogous question have concluded that when a self-employed Chapter 13 debtor calculates his CMI, he must include his gross business receipts but may not in-clude the ordinary and necessary operat-ing expenses arising from that self-em-ployment. See, e.g., In re Hoffman, 511 [220]*220B.R. 128 (Bankr. D. Minn. 2014) (if a Ch. 13 debtor is engaged in a business, the debtor’s CMI is income without regard to business expenses, while disposable income is income with regard to business ex-penses); In re Harkins, 491 B.R. 518, 522 (Bankr. S.D. Ohio 2013) (same); Drummond v. Wiegand, 386 B.R. 238, 239 (9th Cir. BAP 2008) (same); In re Sharp, 394 B.R. 207, 216 (Bankr. C.D. Ill. 2008) (finding section 1325(b)(2)(B) clear that business expenses are deductions from CMI, and not part of the calculation of what CMI is); In re Bembenek, No. 08-22607, 2008 WL 2704289, at *2 (Bankr. E.D. Wis. July 2,2008) (a debtor engaged in business should deduct her business expense on Form 22C under the “Other Expenses”' category when calculating her disposable income, and not “above the line” for CMI).

Those same courts acknowledge a dis-connect between the Code text and some of the information required by Official Form 122C-1.4 Code section 101(10A)(A) requires “income from all sources” for the CMI calculation without reference to a deduction for expenses, while Line 5 of the Form seeks a net amount of gross business receipts minus operating expenses. See, e.g., Hoffman, 511 B.R. at 136-37 (“when the Code and the Official Forms conflict, the Code controls); In re Harkins, 491 B.R. at 522 (statute does not permit inclusion of business expenses in calculat-ing CMI, “despite what the means tests forms say”); In re Bembenek, 2008 WL 2704289, at *3 (“Form B22C should be changed”); In re Harman, 435 B.R. 596, 599 (8th Cir. BAP 2010) (“it is ultimately the statute, not the form which determines the applicable commitment period”).

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Related

Lamie v. United States Trustee
540 U.S. 526 (Supreme Court, 2004)
Blausey v. U.S. Trustee
552 F.3d 1124 (Ninth Circuit, 2009)
Drummond v. Wiegand (In Re Wiegand)
386 B.R. 238 (Ninth Circuit, 2008)
In Re Sharp
394 B.R. 207 (C.D. Illinois, 2008)
In Re Martin
189 B.R. 619 (E.D. Virginia, 1995)
Harman v. Fink (In Re Harman)
435 B.R. 596 (Eighth Circuit, 2010)
In Re Hornung
425 B.R. 242 (M.D. North Carolina, 2010)
In Re Tinsley
428 B.R. 689 (W.D. Virginia, 2010)
In re Harkins
491 B.R. 518 (S.D. Ohio, 2013)
In re Hoffman
511 B.R. 128 (D. Minnesota, 2014)
In re Kuwik
511 B.R. 696 (N.D. Georgia, 2014)
In re Gourley
549 B.R. 210 (N.D. Iowa, 2016)

Cite This Page — Counsel Stack

Bluebook (online)
559 B.R. 217, 2016 WL 5787248, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-reinhart-wieb-2016.