In re Rove

505 B.R. 502, 2013 WL 5592907
CourtUnited States Bankruptcy Court, E.D. Wisconsin
DecidedOctober 10, 2013
DocketNo. 13-25638-svk
StatusPublished
Cited by1 cases

This text of 505 B.R. 502 (In re Rove) 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 Rove, 505 B.R. 502, 2013 WL 5592907 (Wis. 2013).

Opinion

AMENDED (to correct clerical error) DECISION AND ORDER ON TRUSTEE’S OBJECTION TO EXEMPTION

SUSAN V. KELLEY, Bankruptcy Judge.

Susan Marie Rove (the “Debtor”) filed a Chapter 7 bankruptcy petition on April 26, 2013. Her schedule of assets included “Stock in Dairy Farmers of America” valued at $6,462. Actually, the “stock” is an equity account comprised of capital retained from milk sales she made and allocated earnings of the Dairy Farmers of America Cooperative. The Debtor claimed this equity account exempt under 11 U.S.C. (Bankruptcy Code) § 522(d)(10)(E), and the Trustee objected. The parties do not dispute any of the facts or operative documents. After the submission of briefs, the Court took the issue under advisement. This decision and order constitutes the Court’s findings of fact and conclusions of law in this contested matter. ■

The Trustee bears the burden of proving that the exemption is not properly claimed. Fed. R. Bankr.P. 4003. Although exemptions are construed liberally in favor of the debtor, courts may not enlarge an exemption or read into it provisions not found there. Johnston v. Barney, 842 F.2d 1221, 1223 (10th Cir.1988). The exemption claimed here permits a debtor to exempt the right to receive:

(E) a payment under a stock bonus, pension, profitsharing, annuity, or similar plan or contract on account of illness, disability, death, age, or length of service, to the extent reasonably necessary for the support of the debtor and any dependent of the debtor, unless—
(i) such plan or contract was established by or under the auspices of an insider that employed the debt- or at the time the debtor’s rights under such plan or contract arose;
(ii) such payment is on account of age or length of service; and
(iii) such plan or contract does not qualify under section 401(a), 403(a), 403(b), or 408 of the Internal Revenue Code of 1986 [26 USCS § 401(a), 403(a), 403(b), or 408].

11 U.S.C. § 522(d)(10)(E).

The Supreme Court explained that the debtor must satisfy three requirements to claim this exemption: “(1) The right to receive payment must be from a stock bonus, pension, profitsharing, annuity, or similar plan or contract; (2) the right to receive payment must be on account of illness, disability, death, age, or length of service; and (3) even then, the right to receive payment may be exempted only to the extent that it is reasonably necessary [to] support the accountholder or his dependents.” Rousey v. Jacoway, 544 U.S. 320, 325-26, 125 S.Ct. 1561, 161 L.Ed.2d 563 (2005) (internal quotations omitted). The parties do not dispute that the funds in the account are reasonably necessary for the Debtor’s support, but the Debtor contends that the equity account is a prof-itsharing or similar plan from which the Debtor is entitled to receive payments because of her age, while the Trustee maintains that the Debtor’s account is simply a stock or capital investment account.

The parties’ submissions show that the Debtor and her late husband were farmers who sold milk to the Dairy Farmers of America (“DFA”) Cooperative. The Debt- or filed a copy of a DFA brochure explaining her right to receive payments from the [505]*505DFA account. According to the brochure, the Debtor’s DFA equity account was funded by deductions from her milk checks plus allocated earnings of the DFA Cooperative. As an inactive equity holder, the Debtor may receive her the funds in her account through (1) normal retirement— defined as ten years from the time she ceased milking operations; (2) age retirement — available when an equity holder who has ceased milk production reaches age 67; (3) estate retirement — paid on death of the account holder; or (4) selling the equity to an active DFA member. The Debtor’s attorney filed a letter stating that the Debtor is claiming the right to payment under the age retirement provision. The Debtor was 65 years old when she filed her petition, and she will be entitled to withdraw her funds at 10% per year when she reaches 67 on October 8, 2014.

The Debtor’s attorney’s letter states: “She is currently unable to access the fund. It appears, therefore, that the fund is a profit sharing plan as authorized by 522(d)(10)(E).” However, the Debtor’s Base Capital Statements show that the last year she sold milk to DFA was 2003. Therefore, under the “normal” retirement option, the Debtor can receive 100% of the equity account in 2013. And, as the Trustee points out, she also could access her funds by selling her equity account to an active DFA member.

Neither the Debtor nor the Trustee cited a case on point, and the Court’s independent research failed to unearth any precedent on whether a debtor’s interest in a dairy cooperative equity account qualifies for the § 522(d)(10)(E) exemption. But, in Rousey, the Supreme Court examined whether an IRA qualified for the same exemption. In that case, the Bankruptcy Court, Bankruptcy Appellate Panel and Eighth Circuit Court of Appeals all held that the debtors’ IRA was not payable on account of age and was not a similar plan to a stock bonus, profitsharing or annuity plan. Similar to the Trustee’s argument here, the Eighth Circuit reasoned that the IRA was a “readily accessible savings account” which the debtors could access at any time (albeit with some tax penalties). In re Rousey, 347 F.3d 689, 693 (8th Cir.2003). The Supreme Court reversed.

First the Court analyzed whether the debtors’ right to receive distributions from the IRA was on account of the debtors’ age. The trustee argued that, since the debtors could receive early withdrawals from the IRA, their right to payment was not on account of their age. Defining “on account of’ to require a causal connection, the Court found that the debtors’ right to payment was causally connected to their age. Rousey, 544 U.S. at 327, 125 S.Ct. 1561.

Because the 10-percent penalty applies proportionally to any amounts withdrawn, it prevents access to the 10-percent that the Rouseys would forfeit should they withdraw early, and thus it effectively prevents access to the entire balance in their IRAs. It therefore limits the Rouseys’ right to “payment” of the balance of their IRAs. And because this condition is removed when the account-holder turns age 59 1/2, the Rouseys’ right to the balance of their IRAs is a right to payment “on account of’ age.

Id. at 327-28, 125 S.Ct. 1561.

In response to the trustee’s argument that the debtors were entitled to penalty-free distributions for reasons other than age in certain circumstances, the Court stated that the exceptions do not undermine the fact that the debtors could not obtain unrestricted use of their funds until age 591/2, and that § 522(d)(10)(E) requires that the right to payment be on [506]*506account of age, “not that it be solely on account of this factor.” Id. n. 3.

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Bluebook (online)
505 B.R. 502, 2013 WL 5592907, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-rove-wieb-2013.