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[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 11-13115
________________________
D.C. Docket Nos. 1:11-cv-00136-CAP ; USBC 10-74119-WLH
In re: LOU ANN CASSELL,
llllllllllllllllllllllllllllllllllllllllDebtor.
______________________________________
ROBERT B. SILLIMAN,
Chapter 7 Trustee,
llllllllllllllllllllllllllllllllllllllllPlaintiff - Appellant,
versus
LOU ANN CASSELL,
llllllllllllllllllllllllllllllllllllllllDefendant - Appellee.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
________________________
(August 3, 2012)
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Before CARNES, MARTIN, and JORDAN, Circuit Judges.
CARNES, Circuit Judge:
This is an appeal in a bankruptcy case that turns on the interpretation of a
Georgia statutory provision exempting certain annuities from bankruptcy estates.
The questions presented are sufficiently unsettled, important, and likely to recur
that we believe the best course is to certify them to the Georgia Supreme Court,
which is the one true and final arbiter of Georgia law. See Mullaney v. Wilbur,
421 U.S. 684, 691,
95 S.Ct. 1881, 1886 (1975) (noting that the United States
Supreme Court “repeatedly has held that state courts are the ultimate expositors of
state law”); Blue Cross & Blue Shield of Ala., Inc. v. Nielsen,
116 F.3d 1406,
1413 (11th Cir. 1997) (“The final arbiter of state law is the state supreme court . . .
.”).
I.
In late 2008, Cassell inherited $220,000 from her aunt. At that time, both
Cassell and her wholly owned company, J&L Arborists, LLC, were insolvent.
Cassell was still able to pay both her personal debts and the company’s debts as
they came due, at least for a while. After consulting with attorneys and
accountants, she used her $220,000 inheritance to purchase a single-premium
fixed annuity on May 1, 2009. Cassell was 65 years old at that time. She began
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receiving monthly payments of $1,389.14 on June 1, 2009, and under the annuity
contract she is scheduled to receive those payments for the rest of her life. The
contract also guarantees the payments for ten years regardless of when Cassell
dies. She designated her children as the beneficiaries of the payments if she dies
within the ten-year guarantee period.
On May 11, 2010, a year after she had purchased the annuity, Cassell filed a
Chapter 7 bankruptcy petition (as did her company). She included the annuity as
an asset in her Schedule B disclosures, and in her Schedule C filing she listed it as
exempt property under
Ga. Code Ann. § 44-13-100(a)(2)(E). That Georgia
statutory provision permits a debtor to exempt from her bankruptcy estate
“annuity” payments if the payments are both “on account of . . . age” and
“reasonably necessary for the support of the debtor.”
Id.
The trustee objected, contending that Cassell’s annuity is nonexempt
because it does not meet the requirements of the statute. The trustee argued that
the word “annuity” in the Georgia exemption statute has a special meaning and not
every investment or insurance product labeled as an annuity qualifies as one under
the statute. The trustee asserted that Cassell’s annuity does not qualify under
Ga.
Code Ann. § 44-13-100(a)(2)(E) because: (1) Cassell purchased it with funds she
inherited instead of with her salary or wages; (2) she did not intend for the
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payments to substitute for her wages; (3) she exercised too much control over it;
and (4) the circumstances suggest she purchased it as a prebankruptcy planning
measure. According to the trustee, the payments Cassell receives are not “on
account of . . . age” because she chose to begin receiving them immediately, and
the fact that she was 65 when she purchased the annuity is not enough to make the
payments on account of age. Finally, the trustee argued that the payments are not
“reasonably necessary” for Cassell’s support because she is self-sufficient and was
not supported by her aunt.
The bankruptcy court held that Cassell’s annuity is an “annuity” within the
meaning of the Georgia bankruptcy exemption statute. The court based that
conclusion on findings that: when Cassell purchased it she intended for the
payments she would receive to substitute for wages; the payment option she
selected reflected her intent to obtain income for the duration of her life; the
annuity was not prebankruptcy planning; and she did not have inappropriate
control over the corpus. The court also decided that the payments were “on
account of . . . age” due to the fact that she had purchased the annuity because of
her age. The court did not decide whether the payments were reasonably
necessary for Cassell’s support, believing that it lacked sufficient evidence to
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make that determination.1
The trustee appealed the bankruptcy court’s order to the district court,
which also concluded that Cassell’s annuity qualified as an “annuity” for the
purposes of the Georgia bankruptcy exemption. The district court agreed with the
bankruptcy court that the annuity payments are on account of Cassell’s age
because her age had motivated her to buy the annuity. The district court affirmed
as to the issues that the bankruptcy court had addressed but remanded the case,
leaving it for the bankruptcy court to decide in the first instance whether the
annuity payments are reasonably necessary for Cassell’s support.
Instead of waiting to litigate the reasonably necessary issue in the
bankruptcy court, the trustee appealed to this Court, conceding that the annuity
payments are reasonably necessary for Cassell’s support.2 Appellant Br. 10. The
1
The bankruptcy court did rule, however, that any annuity payments that might be made
to Cassell’s children (if her death occurred within ten years of the purchase date) were not
exempt; as a result, the court ordered Cassell to irrevocably designate the bankruptcy estate
instead of her children as the residual beneficiary. That ruling is not involved in this appeal.
2
Absent that concession, we might lack appellate jurisdiction. In bankruptcy cases, we
have jurisdiction over only a final order of the district court, see
28 U.S.C. § 158(d), which is an
order that leaves only “ministerial” duties for the bankruptcy court, see Jove Eng’g v. I.R.S.,
92
F.3d 1539, 1548 (11th Cir. 1996). If the factual record is not fully developed or if there is
“significant judicial activity [for] the bankruptcy court involving considerable discretion,” In re
TCL Investors,
775 F.2d 1516, 1518–19 (11th Cir. 1985), the district court’s order is not final
and we lack jurisdiction,
id. at 1519. Because the trustee concedes that the payments are
reasonably necessary for Cassell’s support, the factual record is complete and there is no
“significant activity . . . involving considerable discretion” for the bankruptcy court to undertake.
That makes the district court order final and gives us appellate jurisdiction to review it. See 28
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trustee hangs his appeal on the contentions that Cassell’s annuity is not an
“annuity” within the meaning of the Georgia exemption statute and that, even if it
is, the annuity payments are not made “on account of . . . age.”
II.
We review de novo the legal determinations of the bankruptcy court and the
district court, In re Garner,
663 F.3d 1218, 1219 (11th Cir. 2011), but we review
only for clear error the bankruptcy court’s factfindings, In re Mitchell,
633 F.3d
1319, 1326 (11th Cir. 2011). The party objecting to an exemption, here the
trustee, bears the burden of showing that the exemption is improper. See Fed. R.
Bankr. P. 4003(c).
The Bankruptcy Code allows a debtor to exempt certain property from the
bankruptcy estate, see
11 U.S.C. § 522(b)(1), and it lists categories of property
eligible for exemption, see
id. § 522(b)(2), (d). Individual states, however, may
opt out of the exemptions provided in the Bankruptcy Code and provide their own
list of exemptions. See id. § 522(b)(2). Georgia is one of the states that has done
that. See
Ga. Code Ann. § 44-13-100.
Cassell contends that her annuity payments are exempt from inclusion in the
U.S.C. § 158(d); In re Porto,
645 F.3d 1294, 1298–99 (11th Cir. 2011); Jove Eng’g, Inc.,
92 F.3d
at 1548; In re TCL,
775 F.2d at 1518–19.
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bankruptcy estate under this provision of the Georgia exemption statute:
(a) . . . [A]ny debtor who is a natural person may exempt . . . for the
purposes of bankruptcy, the following property:
...
(2) The debtor’s right to receive:
...
(E) A payment under a pension, 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 . . . .
Id. § 44-13-100(a)(2)(E). To be exempt under that provision Cassell’s annuity
must meet three requirements. Cf. Rousey v. Jacoway,
544 U.S. 320, 325–26,
125
S.Ct. 1561, 1566 (2005). First, it must be an “annuity” as that term is used in the
Georgia statute.
Ga. Code Ann. § 44-13-100(a)(2)(E). Second, the annuity
payments to Cassell must be “on account of . . . age.”3
Id. Third, the payments
must be “reasonably necessary to the support of the debtor.”
Id. Because the
trustee concedes that the third requirement is met, we turn to the other two.
A.
As for the first requirement, neither party points to any decisions of the
3
The second requirement actually is that the annuity payments be “on account of illness,
disability, death, age, or length of service,”
Ga. Code Ann. § 44-13-100(a)(2)(E), but age is the
only one of those that conceivably fits Cassell’s situation.
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Georgia courts determining exactly what an “annuity” is for purposes of
Ga. Code
Ann. § 44-13-100(a)(2)(E), and we have found none. So we look to basic
principles of statutory construction and decisions analyzing analogous
exemptions.
Statutory construction under Georgia law starts with the familiar rule that
we are required “to construe a statute according to its terms [and] to give words
their plain and ordinary meaning.” Slakman v. Cont’l Cas. Co.,
587 S.E.2d 24, 26
(Ga. 2003). The plain meaning of “annuity” is “[a]n obligation to pay a stated
sum, usu[ally] monthly or annually, to a stated recipient.” Black’s Law Dictionary
105 (9th ed. 2009); see also NationsBank of N.C., N.A. v. Variable Annuity Life
Ins. Co.,
513 U.S. 251, 255,
115 S.Ct. 810, 812 (1995) (“Annuities are contracts
under which the purchaser makes one or more premium payments to the issuer in
exchange for a series of payments, which continue either for a fixed period or for
the life of the purchaser or a designated beneficiary.”). A “fixed annuity” is “[a]n
annuity that guarantees fixed payments, either for life or for a specified period.”
Black’s Law Dictionary 105; see also
id. (defining “annuity” as alternatively
meaning “a right, often acquired under a life-insurance contract, to receive fixed
payments periodically for a specified duration”).
Other Georgia statutes define “annuity” in a similar way. See, e.g., Ga.
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Code Ann. § 33-28-1(1) (“‘Annuity’ means a contract by which one party in return
for a stipulated payment or payments promises to pay periodic installments for a
stated certain period of time or for the life or lives of the person or persons
specified in the contract.”); id. § 47-2-1(3) (“‘Annuity’ means annual payments for
life derived from the accumulated contributions of a member.”); id. § 47-3-1(3)
(same). And at least one Georgia appellate decision has defined “annuity” the
same way in another context. See Wolfe v. Breman,
26 S.E.2d 633, 637 (Ga. Ct.
App. 1943) (“‘Annuity’ has been defined in general terms as technically a yearly
payment of certain sum or money, granted another in fee for life or years, but in
broader sense as fixed sum granted or bequeathed and payable periodically, but
not necessarily annually, subject to such specific limitations as to duration as
grantor or donor may lawfully impose.”).
When analyzing the analogous federal exemption statute,
11 U.S.C. §
522(d)(10)(E),4 the United States Supreme Court “look[ed] to the ordinary
4
The federal exemption states:
(d) The following property may be exempted . . . :
...
(10) The debtor’s right to receive—
...
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meaning of [the] term[].” Rousey,
544 U.S. at 330,
125 S.Ct. at 1568. It defined
an annuity as “an amount payable yearly or at other regular intervals for a certain
or uncertain period (as for years, for life, or in perpetuity).”
Id.,
125 S.Ct. at 1569
(alteration and quotation marks omitted). It noted that annuities differ from
pension plans in that “[e]mployers establish and contribute to . . . pension plans . .
. , whereas an individual can establish and contribute to an annuity on terms and
conditions he selects.”
Id. at 331,
125 S.Ct. at 1569. And it recognized that
annuities did not “necessarily provide[] retirement income.”
Id. Although the
Court in Rousey was interpreting the federal exemption statute instead of the
Georgia one, we may consider its statements on the question of the generally
accepted or plain meaning of the word “annuity.”
The trustee contends, however, that the word “annuity” in the Georgia
(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 debtor 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.
11 U.S.C. § 522(d)(10)(E) (emphasis added).
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exemption statute does not carry its plain meaning. Instead, his position is that to
be an exemptible “annuity” within the meaning of that statute the source of the
funds used to buy the annuity must be employment-related income, salary, or
wages, and not an inheritance. In support of that position, the trustee cites the
legislative history of
11 U.S.C. § 522(d)(10)(E), which is the analogous federal
exemption, and precedent from the United States Supreme Court and other courts
applying the federal exemption or some other state’s exemption. See H.R. Rep.
No. 95-595, at 362 (1977), reprinted in 1978 U.S.C.C.A.N. 5787, 6318
(“Paragraph (10) exempts certain benefits that are akin to future earnings of the
debtor.”); see also Rousey,
544 U.S. at 331–32,
125 S.Ct. at 1569; In re Eilbert,
162 F.3d 523, 526–27 (8th Cir. 1998). The trustee also argues that general
principles of statutory interpretation indicate that we should interpret the word
“annuity” in light of the word “pension.” Doing so, he argues, leads to the
conclusion that the Georgia exemption requires the annuity to be, in his words,
“like a true retirement vehicle” and funded by wages or some other
employment-related income—not funded by an inheritance. See In re Eilbert,
162
F.3d at 526–27 (interpreting “annuity” in the Iowa exemption statute).
Both the Georgia and federal exemption statutes refer to a “pension,”
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“annuity,” “or similar plan or contract.”5 The Supreme Court held in Rousey that
an individual retirement account is a “similar plan or contract” for purposes of the
federal statute.
544 U.S. at 334–35,
125 S.Ct. at 1571. The Court reasoned that,
like the plans listed in the statute, IRAs “provide a substitute for wages (by wages,
for present purposes, we mean compensation earned as hourly or salary income),
and are not mere savings accounts.”
Id. at 329,
125 S.Ct. at 1568. It specifically
noted that “[w]hat all of [the listed] plans have in common is that they provide
income that substitutes for wages,”
id. at 331,
125 S.Ct. at 1569, and that “IRA
income substitutes for wages lost upon retirement and distinguish IRAs from
typical savings accounts,”
id. at 332,
125 S.Ct. at 1569. The trustee argues that
those statements mean that the source of the funds used to purchase an exemptible
annuity must be wages or other employment-related income and not an
inheritance.
The trustee also urges us to follow the In re Eilbert decision. The Eighth
Circuit held in that case that an annuity purchased with inherited funds is not a
“pension, annuity, or similar plan or contract” within the meaning of
Iowa Code §
5
The federal statute, unlike the Georgia statute, also includes in the list with pensions and
annuities “stock bonus” and “profitsharing” plans.
11 U.S.C. § 522 (d)(10)(E); see supra note 4.
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627.6(8)(e) (1998).6 In re Eilbert,
162 F.3d at 527. In doing so, the court noted
that Iowa’s exemption statute was modeled on the federal exemption statute,
11
U.S.C. § 522(d)(10)(E), and that “Congress described that federal exemption as
‘exempt[ing] certain benefits that are akin to future earnings of the debtor.’”
Id. at
526 (quoting H.R. Rep. No. 95-595, at 362 (1977), reprinted in 1978
U.S.C.C.A.N. 5787, 6318). Viewing “annuity” as a “purely generic term which
refers to the method of payment and not to the underlying nature of the asset,” the
Eighth Circuit reasoned that the term should be read in light of the other plan type
listed in the statute, which was “pension.”
Id. at 526–27. That is how it reached
the conclusion that only annuities that “provide benefits in lieu of earnings after
6
The Iowa exemption stated:
A debtor who is a resident of this state may hold exempt from execution the
following property:
...
8. The debtor’s rights in:
...
e. A payment or a portion of a payment under a pension, annuity, or similar plan
or contract on account of illness, disability, death, age, or length of service, unless
the payment or a portion of the payment results from contributions to the plan or
contract by the debtor within one year prior to the filing of a bankruptcy petition,
which contributions are above the normal and customary contributions under the
plan or contract, in which case the portion of the payment attributable to the
contributions above the normal and customary rate is not exempt.
Iowa Code § 627.6(8)(e) (1998).
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retirement,” however funded, can be exempted under
Iowa Code § 627.6(8)(e).
Id.
at 527. Because the annuity payments in that case did not “replace lost income”
and because the annuity was purchased with a single payment of inherited funds
instead of “with contributions over time,” the annuity payments were not “akin to
future earnings.”
Id. (quotation marks omitted). In sum, the trustee argues that
Cassell’s annuity is not an exemptible “annuity” because she used inherited funds
and not wages or salary income to purchase it.
Bankruptcy courts have generally agreed that not every annuity is an
“annuity” for the purposes of the Georgia exemption statute. See, e.g., In re
Cassell,
443 B.R. 200, 204 (Bankr. N.D. Ga. 2010); In re Bramlette,
333 B.R. 911,
920–21 (Bankr. N.D. Ga. 2005); In re Michael,
339 B.R. 798, 802–07 (Bankr.
N.D. Ga. 2005). See generally In re Green, No. 06–14084,
2007 WL 1031677
(Bankr. E.D. Tenn. Apr. 2, 2007) (unpublished) (applying the Georgia exemption).
Cassell contends, though, that her annuity is an “annuity” within the
meaning of
Ga. Code Ann. § 44-13-100, arguing that we should give “annuity” its
plain and ordinary meaning as set out in the Rousey opinion. See
544 U.S. at 330,
125 S.Ct. at 1569. Her fallback position is that if we do look beyond the plain
meaning of “annuity,” we should apply the multifactor test from In re Andersen,
259 B.R. 687, 691–92 (8th Cir. BAP 2001). In that case, the Bankruptcy
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Appellate Panel of the Eighth Circuit laid out six factors to consider when
deciding whether a particular annuity qualifies as an “annuity” under the federal
exemption statute:
[(1)] Were the payments designed or intended to be a wage
substitute?
[(2)] Were the contributions made over time? The longer the period
of investment, the more likely the investment falls within the ambit of
the statute and is the result of a long standing retirement strategy, not
merely a recent change in the nature of the asset.
[(3)] Do multiple contributors exist? Investments purchased in
isolation, outside the context of workplace contributions, may be less
likely to qualify as exempt.
[(4)] What is the return on investment? An investment which returns
only the initial contribution with earned interest or income is more
likely to be a nonexempt investment. In contrast, investments which
compute payments based upon the participant’s estimated life span,
but which terminate upon the participant’s death or the actual life
span, are akin to a retirement investment plan. That is, will the debtor
enjoy a windfall if she outlives her life expectancy? Is she penalized
if she dies prematurely?
[(5)] What control may the debtor exercise over the asset? If the
debtor has discretion to withdraw from the corpus, then the contract
most closely resembles a nonexempt investment.
[(6)] Was the investment a prebankruptcy planning measure? In this
regard, the court may examine the timing of the purchase of the
contract in relation to the filing of the bankruptcy case.
In re Andersen,
259 B.R. at 691–92.
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The trustee argues that the Andersen test conflicts with the analysis used in
Rousey and In re Eilbert. The test does, however, include factors that those two
decisions and others have considered when deciding whether a particular annuity
is an exemptible “annuity” under various statutes. See, e.g., Rousey,
544 U.S. at
329–332,
125 S.Ct. at 1568–1570 (considering whether IRAs provide a substitute
for wages, the first In re Andersen factor); In re Eilbert,
162 F.3d at 527
(considering the first, second, third, and sixth In re Andersen factors); In re
Huebner,
986 F.2d 1222, 1224 (8th Cir. 1993) (considering the debtor’s control
over the corpus, the fifth In re Andersen factor); In re Bramlette,
333 B.R. at 921
(considering all of the In re Andersen factors); In re Michael,
339 B.R. at 804
(considering the first In re Andersen factor).
Rousey would dictate that we give “annuity” its plain meaning if we were
applying the federal exemption statute, but we are not. We are applying the
Georgia exemption statute. When the Georgia legislature opted out of the federal
statutory list of bankruptcy exemptions and enacted its own, it intended that
Georgia debtors be treated differently from federal debtors in at least some
circumstances. That cautions against assuming that an interpretation of the federal
statute should be followed in a Georgia case, although the caution is lessened in
situations like this one where the relevant statutory language is materially
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identical. We are unsure whether the Georgia Supreme Court would be persuaded
by the Rousey reasoning, by the Eighth Circuit’s In re Eilbert reasoning, by the
Eighth Circuit Bankruptcy Appellate Panel’s In re Andersen reasoning, or by some
other reasoning.
B.
In addition to disagreeing about the meaning of “annuity,” the parties also
disagree about whether Cassell’s annuity gives her a right to receive payments that
are “on account of . . . age,” which is another requirement for this exemption.
Ga.
Code Ann. § 44-13-100(a)(2)(E). Neither party points to any Georgia decisions
that would help us resolve the disagreement, nor have we found any. The
bankruptcy court and the district court concluded that the payments are on account
of age based in part on Cassell’s testimony that she purchased this annuity because
she was 65. Both courts also relied on a federal early-withdrawal tax penalty for
annuities that is similar to the one for IRAs that the Supreme Court found
significant in Rousey.
The Supreme Court held in Rousey that IRAs do “provide a right to
payment on account of age.”
544 U.S. at 328–29,
125 S.Ct. at 1567–68. It
reasoned that “on account of” means “because of,” which “require[s] a causal
connection between the term that the phrase ‘on account of’ modifies and the
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factor specified in the statute at issue.”7
Id. at 326,
125 S.Ct. at 1566. The Court
concluded that the debtor’s rights to the IRA payments were causally connected to
the debtor’s age because of a 10% tax penalty for withdrawing funds from an IRA
before the age of 59 years and 6 months.
Id. at 327–29,
125 S.Ct. at 1566–68; see
also
26 U.S.C. §§ 72(t), 408(a). The early withdrawal penalty “suggests that
Congress designed it to preclude early access to IRAs,” Rousey,
544 U.S. at 327,
125 S.Ct. at 1567, and because the penalty “is removed when the account holder
turns age 59 1/2, the [debtors’] right to the balance of their IRAs is a right to
payment ‘on account of’ age,”
id. at 328,
125 S.Ct. at 1567.
Cassell argues that for the same reason the Supreme Court found IRA
payments to be on account of age, her annuity payments are as well—both types of
payments are tax advantaged. An annuitant is permitted to exclude a portion of
the payments from her gross income each year until she has recovered all of her
investment in the annuity contract. See generally
Treas. Reg. §§ 1.72-1 to -11.
At least some annuities are subject to the same early withdrawal penalties as IRAs.
See
26 U.S.C. § 72(q). When she purchased her annuity Cassell had already
passed the age at which the early-withdrawal penalty would have applied, but she
7
Georgia case law also suggests that “on account of” and “because of” are synonymous.
See Lunceford v. Peachtree Cas. Ins. Co.,
495 S.E.2d 88, 90–91 (Ga. Ct. App. 1997) (“[A]nother
construction could be that the phrase [‘because of’] means ‘by reason of’ or ‘on account of.’”).
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argues that is irrelevant.
The trustee counters that Cassell’s annuity does not qualify for favorable tax
treatment and insists that the annuity contract itself states that it does not. He
argues that the annuity payments do not qualify for favorable tax treatment under
the Internal Revenue Code because, he believes, sections 401(a), 403(a), 403(b),
and 408 of the Code limit qualifying assets to those purchased with one’s own
earnings. Cassell purchased her annuity with inherited funds instead of earnings.
Because of that difference, her annuity payments are different from the IRA
payments considered in Rousey.8
Cassell argues, as the bankruptcy court and the district court concluded, that
the annuity payments meet the “on account of age” requirement for exemption in
another way: Cassell purchased the annuity because of her advancing age. The
bankruptcy court drew a distinction between a mandatory and a permissible
inference. It reasoned that Cassell’s age when she purchased the annuity did not
compel a finding that the payments are on account of age, cf. In re Eilbert, 162
8
Although we have set out the parties’ positions about whether the annuity payments are
eligible for favorable federal tax treatment based on Cassell’s age, we need not decide that issue,
at least not now. Whether we will ever have to decide it will depend on the answer to our
certified questions. If the Georgia Supreme Court decides that the state exemption issue turns on
the federal tax law issue, we can then decide that federal issue. On the other hand, if the Georgia
Supreme Court decides that the state exemption issue does not turn on the federal tax issue, there
(mercifully) will be no need to decide it.
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F.3d at 528, but that fact did permit the court to make that finding. And the court
made it.
It may be that payments from all fixed life annuities, such as the one in this
case, should be considered to be made on account of age under the Georgia statute.
Fixed life annuities use the annuitant’s age at the time the annuity payments begin
to calculate the size of the payments,9 and in that way the payments will always be
tied to the annuitant’s age. However, neither the parties nor we have been able to
find any decisions of the Georgia courts addressing whether Cassell’s annuity
payments are on account of age as required by
Ga. Code Ann. §
44-13-100(a)(2)(E). And it is unclear to what extent, if any, federal tax treatment
of annuities is relevant to the Georgia exemption statute’s treatment of them. The
intent of Congress is not necessarily the intent of the Georgia legislature. Also
unclear is whether Cassell’s intent in buying the annuity or the manner in which
the payments are calculated results in them being on account of age. Lacking any
9
Life annuity payments are based on, among other things, the life expectancy of the
annuitant at the time the payments begin. See Explaining Types Of Fixed Annuities,
Investopedia (Feb. 23, 2011),
http://www.investopedia.com/articles/retirement/05/071205.asp#axzz215PRPKps. An
annuitant’s life expectancy depends in no small part on her age. See U.S. Soc. Sec. Admin.,
Period Life Table, 2007, http://www.ssa.gov/STATS/table4c6.html. Because an older person has
a shorter life expectancy, an annuitant who is older when the annuity payments begin will receive
larger annuity payments. See, e.g., AARP Lifetime Income Plan With 20 Year Guarantee,
AARP, http://www.nylaarp.com/Annuities/20-Year-Guarantee (last visited July 23, 2012).
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guidance from the Georgia courts on these questions, we are reluctant to hazard a
guess.
III.
Fortunately, guessing is not our only option. When there is substantial
doubt about the correct answer to a dispositive question of state law, a better
option is to certify the question to the state supreme court. See World Harvest
Church, Inc. v. Guideone Mut. Ins. Co.,
586 F.3d 950, 960–61 (11th Cir. 2009)
(“[T]he certification procedure [is] a valuable tool for promoting the interests of
cooperative federalism . . . . [that] helps save time, energy, and resources and
produces authoritative answers to novel or unsettled questions of state law.”
(citation and quotation marks omitted)).
This case presents a significant state law issue that is likely to arise again.
At oral argument, counsel for the trustee stated that a significant number of
bankruptcy debtors are seeking to exempt these types of annuity payments. With
the graying of the population and more Americans shuffling toward retirement,
that number will only increase. A final resolution of how to apply this Georgia
exemption is needed, and only the Georgia Supreme Court can provide one. See
LaFrere v. Quezada,
582 F.3d 1260, 1262 (11th Cir. 2009) (“Because state
supreme courts are the final arbiters of state law, when we write to a state law
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issue, we write in faint and disappearing ink, and once the state supreme court
speaks the effect of anything we have written vanishes . . . .” (quotation marks
omitted)). Absent certification, the question seems unlikely to reach that court.
So we refrain from writing to this state law issue in our own faint ink and ask for
the help of the one court that can write the answer in bold, black letters.
We certify the following questions to the Georgia Supreme Court:
(1) Is a single-premium fixed annuity purchased with inherited funds
an “annuity” for the purposes of
Ga. Code Ann. §
44-13-100(a)(2)(E)?
(2) Is a debtor’s right to receive a payment from an annuity “on
account of . . . age” for the purposes of
Ga. Code Ann. §
44-13-100(a)(2)(E) if the annuity payments are subject to age-based
federal tax treatment, if the annuitant purchased the annuity because
of her age, or if the annuity payments are calculated based on the age
of the annuitant at the time the annuity was purchased?
Of course, “[o]ur statement of the questions is not designed to limit the
inquiry of the” Georgia Supreme Court. Mosher v. Speedstar Div. of AMCA Int’l,
Inc.,
52 F.3d 913, 917 (11th Cir. 1995). Instead, as we have stated before:
[T]he particular phrasing used in the certified question is not to
restrict the [Georgia] Supreme Court’s consideration of the problems
involved and the issues as the Supreme Court perceives them to be in
its analysis of the record certified in this case. This latitude extends
to the [Georgia] Supreme Court’s restatement of the issue or issues
and the manner in which the answers are to be given, whether as a
comprehensive whole or in subordinate or even contingent parts.
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Martinez v. Rodriguez,
394 F.2d 156, 159 n.6 (5th Cir. 1968).10 The entire record
on appeal in this case, including copies of the parties’ briefs, is transmitted along
with this certification.
QUESTIONS CERTIFIED.
10
In Bonner v. Prichard,
661 F.2d 1206, 1207 (11th Cir. 1981) (en banc), we adopted as
binding precedent all Fifth Circuit decisions handed down before October 1, 1981.
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