Schlossberg v. Barney ( 2004 )

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
ROGER SCHLOSSBERG, 
Trustee-Appellant,
v.  No. 03-2081
JEAN BARNEY,
Debtor-Appellee.

Appeal from the United States District Court
for the District of Maryland, at Baltimore.
Richard D. Bennett, District Judge.
(CA-03-784-RDB; BK-02-20552-PM)
Argued: June 3, 2004
Decided: August 16, 2004
Before WIDENER and DUNCAN, Circuit Judges,
and Louise W. FLANAGAN, United States District Judge for
the Eastern District of North Carolina,
sitting by designation.
Affirmed by published opinion. Judge Duncan wrote the opinion, in
which Judge Widener and Judge Flanagan joined.
COUNSEL
ARGUED: Roger Schlossberg, SCHLOSSBERG & DIGIROLAMO,
Hagerstown, Maryland, for Appellant. Lawrence Francis Regan, Jr.,
GARZA, REGAN & ROSE, P.C., Rockville, Maryland, for Appellee.
2 SCHLOSSBERG v. BARNEY
OPINION
DUNCAN, Circuit Judge:
Appellant Roger Schlossberg, Chapter 7 Bankruptcy Trustee
("Appellant"), challenges the order of the district court affirming the
bankruptcy court in overruling his objection to an exemption asserted
by the debtor, appellee Jean Barney ("Appellee").1 Appellant argues
that the district court erred in not allowing him to assert the rights of
the Internal Revenue Service ("IRS") as a hypothetical creditor in
objecting to Appellee’s claim of exemption from the bankruptcy
estate of certain property owned with her non-debtor spouse as ten-
ants by the entireties. For the reasons that follow, we affirm.
I.
The facts underlying this appeal are not in dispute. On September
10, 2000, Appellee filed a voluntary petition for individual bank-
ruptcy under Chapter 7 of the United States Bankruptcy Code in the
Bankruptcy Court for the District of Maryland. Appellant was
appointed Chapter 7 Interim Trustee, and has continued to serve as
Trustee in the bankruptcy case. As Trustee, he sought to recover
approximately $83,385 of unsecured, nonpriority debt Appellee owed
to various credit card companies.
At the time the petition was filed, Appellee owned a single-family
home with her spouse in a tenancy by the entireties in Silver Spring,
Maryland. According to the documents filed with the bankruptcy
court, the home was valued at $266,650, and was subject to a lien in
the amount of $56,000. Appellee and her spouse therefore owned
approximately $210,000 in equity in the home. Along with her peti-
tion, Appellee filed a Schedule C - Property Claimed as Exempt,
seeking to exempt the home from the property of the bankruptcy
estate under § 522 of the Bankruptcy Code.2
1
The term "debtor" as used herein refers to a person who has filed a
bankruptcy petition. See 11 U.S.C. § 101(13) ("‘[D]ebtor’ means person.
. .concerning which a case under this title has been commenced. . .").
2
11 U.S.C. § 522(b)(2) allows an individual debtor to exempt from
property of the estate "any interest in property in which the debtor had,
immediately before the commencement of the case, an interest as a ten-
ant by the entirety. . .to the extent that such interest. . .is exempt from
process under applicable nonbankruptcy law."
SCHLOSSBERG v. BARNEY 3
Appellant objected to the attempted exemption of the entireties
property, and sought to reach Appellee’s interest in the home for the
benefit of her individual creditors through § 544 of the Bankruptcy
Code.3 This section, often referred to as the "strong arm clause,"
accords to a trustee the rights and powers of a hypothetical "creditor
that extends credit to the debtor" on the date of the bankruptcy peti-
tion. 11 U.S.C. § 544(a).
In United States v. Craft, 535 U.S. 274 (2002), the Supreme Court
held that where federal taxes are owed by one spouse, and the spouse
has property owned as tenants by the entireties with a spouse who had
no delinquent tax liabilities, the IRS may attach the entireties property
to collect the tax debt under 26 U.S.C. § 6321. Appellant argued that
§ 544(a)(2) allows him to stand in the shoes of the IRS as a creditor
for purposes of reaching entireties property despite the exemption cre-
ated by § 522(b)(2).
The bankruptcy court overruled Appellant’s objection to the
exemption on several grounds. The bankruptcy court noted that
§ 544(a)(1) conveys the rights of a judicial lienholder, whereas the
lien described in Craft is statutory. Further, the bankruptcy court con-
cluded that "[t]here are voluntary creditors and involuntary creditors,
and in this situation, the IRS cannot be said to have extended credit."
J.A. 93. Finally, the bankruptcy court found that Appellant’s argu-
ment would have the effect of reading the tenancy by the entireties
exemption, which has long been recognized by the Supreme Court
and this circuit, out of the Bankruptcy Code.
3
Section 544(a)(2) provides:
The trustee shall have, as of the commencement of the case, and
without regard to any knowledge of the trustee or of any creditor,
the rights and powers of, or may avoid any transfer of property
of the debtor or any obligation incurred by the debtor that is
voidable by . . . a creditor that extends credit to the debtor at the
time of the commencement of the case, and obtains, at such time
and with respect to such credit, an execution against the debtor
that is returned unsatisfied at such time, whether or not such a
creditor exists. . .
11 U.S.C. § 544(a)(2) (emphasis added).
4 SCHLOSSBERG v. BARNEY
Appellant appealed the decision of the bankruptcy court to the dis-
trict court. The district court affirmed, finding that "[a] plain reading
of § 544(a)(2) clearly indicates that the IRS does not extend credit as
contemplated by the strong arm clause." J.A. 159. The district court
adopted the distinction relied on by the bankruptcy court that where
the IRS is a creditor, it is an involuntary one. Further, the district
court noted that § 544 gives Appellant the rights and powers a credi-
tor would have under state law. Even if the IRS were a creditor within
the meaning of § 544, Appellant would still not be invested with the
power possessed by an agency of the federal government, "powers
that are not conferred by state law." J.A. 162.
Appellant filed a timely appeal, arguing that the district court erred
in finding that he was not entitled to assert the rights and powers of
the IRS in reaching property owned as tenants by the entireties by a
debtor and a non-debtor spouse. The issue before us is whether
§ 544(a)(2) vests a trustee with the rights and powers of the IRS as
a hypothetical creditor to penetrate the entireties exemption for the
benefit of the individual creditors of the debtor. That the IRS is not
a "creditor that extends credit" is dispositive of the issue, and we
affirm on that reasoning.
II.
When reviewing a decision by a district court sitting as an appellate
court in bankruptcy matters, we apply the same standard of review as
did the district court. Bowers v. Atlanta Motor Speedway, Inc. (In re
Southeast Hotel Props. Ltd.), 99 F.3d 151, 154 (4th Cir. 1996).
Accordingly, legal conclusions are reviewed de novo, but findings of
fact will only be set aside if clearly erroneous. In re Bulldog Trucking,
Inc., 147 F.3d 347, 351 (4th Cir. 1998). Here, the bankruptcy court
made no findings of fact; the district court reviewed only its legal
conclusions. Therefore, we review the decision of the district court de
novo.
III.
Section 541 of the Bankruptcy Code defines the property of the
debtor that becomes the property of the bankruptcy estate. It includes
"all legal and equitable interests of the debtor in property as of the
SCHLOSSBERG v. BARNEY 5
commencement of the case." 11 U.S.C. § 541(a)(1). Notwithstanding
this provision, a debtor may exempt certain property from the bank-
ruptcy estate pursuant to § 522. Section 522 includes a list of allowed
exemptions, see § 522(d), and also gives states the right to opt out of
this exemption scheme, as Maryland has done. See § 522(b)(1); Md.
Code Ann., Courts and Judicial Proceedings § 11-504(g). When a
debtor’s state elects to opt out, or the debtor chooses to exercise his
exemptions under state law, the debtor may exclude from the property
of the estate those items exempted by state or local law and by federal
nonbankruptcy law. § 522(b)(2)(A). Under § 522(b)(2)(B), the debtor
in an opt-out state may also exempt property owned as a tenancy by
the entireties.
As the bankruptcy court noted, Maryland has long recognized the
particular protections to be accorded tenancies by the entireties. See,
e.g., Diamond v. Diamond, 467 A.2d 510, 513 (Md. 1983) (citing
Lake v. Callis, 97 A.2d 316 (Md. 1953); Hertz v. Mills, 171 A. 709(Md. 1934); McCubbin v. Stanford, 37 A. 214 (Md. 1897)). A tenancy
by the entireties is essentially a joint tenancy with rights of survivor-
ship between the husband and wife rendered individually indissoluble
by the common law theory that the husband and wife are one person.
Bruce v. Deyer, 524 A.2d 777, 780 (Md. 1987). While both spouses
are alive, a tenancy by the entireties may only be severed by divorce
or joint action by both spouses. Id. at 781. Thus, under Maryland law,
such property is exempt from process by creditors of an individual
spouse. Id. at 781 n.2; Beall v. Beall, 434 A.2d 1015, 1021 (Md.
1981).
The instant case is not Appellant’s first attempt to overcome a ten-
ancy by the entireties exemption under Maryland law. In Sumy v.
Schlossberg (In re Sumy), 777 F.2d 921 (4th Cir. 1985), an individual
Chapter 7 debtor claimed an exemption of entireties property owned
with his non-debtor spouse. Unlike the property here, the Sumys’
property was subject to claims by joint creditors of the debtor and the
spouse. On those facts, we determined that the property was not
immune from process under state law. We specifically noted that in
Maryland, as is true in most states recognizing the entireties tenancy,
creditors of only one spouse may not reach entireties property for the
satisfaction of their claims. Id. at 925-26 (citations omitted). We
pointed out, however, that "[t]he opposite is true for creditors to
6 SCHLOSSBERG v. BARNEY
whom both spouses are obligated: ‘[A] judgement obtained against
both husband and wife arising out of a joint obligation may be satis-
fied by execution upon property held by the entireties.’" Id. (footnote
and citations omitted).
Appellant here seeks to circumvent the well-recognized distinction
between the rights of individual and joint creditors to reach entireties
property on the basis of a novel interpretation of the Supreme Court’s
decision in United States v. Craft. Relying on, among other factors,
the breadth of the federal tax code and the public policy favoring the
collection of taxes, the Court in that case allowed the IRS to attach
a federal tax lien to entireties property owned by an individual tax-
payer having delinquent tax liabilities with a spouse who had no such
tax liabilities. Craft, 535 U.S. at 288. Appellant extrapolates from
Craft that if the IRS can reach entireties property owned by a debtor
with a non-debtor spouse for the benefit of individual creditors, so can
he as Trustee. He relies for his argument on the authority of the IRS
to enter into forbearance agreements with taxpayers for the extended
payment of tax liabilities under certain circumstances. See 26 U.S.C.
§ 6159. According to Appellant, the ability to enter into such forbear-
ance agreements confers upon the IRS the status of a "creditor who
extends credit," into whose shoes he may step under the strong arm
clause. Despite some superficial appeal, Appellant’s argument is
fatally flawed.
We note, preliminarily, that every court to have addressed the
applicability of Craft to trustees in bankruptcy under the Bankruptcy
Code has rejected Appellant’s argument, although in differing con-
texts.
In re Kelly, 289 B.R. 38 (Bankr. D. Del. 2003), involved an objec-
tion by a judgment creditor to an exemption under § 522(b)(2)(B),
and not the assertion of a trustee’s rights as a hypothetical creditor
under § 544(a)(2). The bankruptcy court found Craft inapplicable in
that context because of its reliance on the federal tax lien statute. The
court noted that, in contrast to federal tax law, Delaware law does not
permit a judgment against one spouse to attach to that spouse’s entire-
ties property. Id. at 43-44. The bankruptcy court in In re Ryan, 282
B.R. 742 (Bankr. D.R.I. 2002), considered the valuation of an individ-
ual debtor’s equity interest in entireties property. The bankruptcy
SCHLOSSBERG v. BARNEY 7
court determined that under Rhode Island law, the debtor’s expec-
tancy interest in entireties property is 100% of the total equity in that
property. The bankruptcy court stated that Craft did not address the
issue of valuation, and went on to note that the Supreme Court gave
no indication that its reasoning should be extended beyond federal tax
law. Id. at 750.
In re Knapp, 285 B.R. 176 (Bankr. M.D.N.C. 2002), is more
closely analogous to the facts in the instant case, though still not
directly on point. The trustee in Knapp argued that the Bankruptcy
Code gave him the same power to attach entireties property as Craft
held the Internal Revenue Code gave the IRS. Id. at 181. The court
disagreed, reasoning that federal tax creditors are "unique" because
federal law permits them to "collect tax debts against property that
most creditors cannot reach." Id. According to the court, Craft
expressly relied on the IRS’s status as the federal tax collector, and
its authority as such under the federal tax lien statute, to hold that the
IRS can reach a taxpayer’s interest in entireties property. A bank-
ruptcy trustee, by contrast, has the rights of a judicial lien creditor or
bona fide purchaser, both of which can only assert the rights granted
them under state law. Id. at 182-83. Because North Carolina law pre-
cluded creditors of only one spouse from reaching entireties property,
the trustee was similarly so limited. Id. "Craft did not add the rights
and powers of a hypothetical federal tax lien creditor to Section 544."
Id. at 183.4
The foregoing cases, while instructive, do not squarely address
Appellant’s argument regarding his rights under the strong arm
clause. We therefore turn to a consideration of whether the IRS can
be analogized to a "creditor that extends credit" within the meaning
of § 544(a)(2).
A.
"In the absence of expressed Congressional intent, we must assume
that Congress intended to convey the language’s ordinary meaning."
Md. State Dep’t of Educ. v. U.S. Dep’t of Veterans Affairs, 98 F.3d
4Although predictably critical of Knapp, Appellant points us to no
decision adopting his position. Nor have we been able to locate one.
8 SCHLOSSBERG v. BARNEY
165, 169 (4th Cir. 1996). As the Bankruptcy Code does not define the
phrase "extends credit," we consider the ordinary meaning of the
words. According to the dictionary, "extend" is defined as "to post-
pone (the payment of a debt) beyond the time originally agreed
upon." RANDOM HOUSE WEBSTER’S UNABRIDGED DICTIONARY 684 (2d
ed. 2001). "Credit" is defined as "confidence in purchaser’s ability
and intention to pay, displayed by entrusting the buyer with goods or
services without immediate payment." Id. at 473. The act of extending
credit thus necessarily involves an element of volition, based on an
assessment by the creditor of the borrower’s willingness and ability
to pay.
The attempt to apply such a definition to the relation of the IRS
with federal taxpayers yields a result that is incongruous on its face.
A tax liability is in no sense a debt for a good or a service the govern-
ment entrusts to the taxpayer pending payment. The IRS does not
choose whom to "entrust" with tax liabilities, nor can it always make
an individualized determination of when to enter into a forbearance
agreement with respect to the payment of those liabilities. See 26
U.S.C. § 6159(c) (stating that the Secretary of the Treasury is required
to enter into installment agreements when the tax liability in question
does not exceed $10,000 and certain other conditions are met).
In distinguishing between the extension of credit by a private
lender and the accrual of tax liability, the Supreme Court has stated
that "[t]he Government, by contrast [to a private lender that may
decline the extension of credit], cannot indulge the luxury of declin-
ing to hold the taxpayer liable for his taxes. . . ." United States v.
McDermott, 507 U.S. 447, 455 (1993); see also Haas v. Internal Rev-
enue Serv., 31 F.3d 1081, 1088 (11th Cir. 1994) ("The IRS is an
involuntary creditor; it does not make a decision to extend credit.").
The legislative history of the Bankruptcy Reform Act of 1978 pro-
vides further support for the recognition of a distinction between vol-
untary and involuntary creditors. When discussing how proposed
changes would affect tax claims in bankruptcy, the Senate Committee
on the Judiciary stated that "the goals of rehabilitating debtors and
giving equal treatment to private voluntary creditors must be balanced
with the interests of governmental tax authorities who, if unpaid taxes
exist, are also creditors in the proceedings." S. REP. NO. 95-989, at 13-
SCHLOSSBERG v. BARNEY 9
14 (1978) (emphasis added). Additionally, when discussing the ratio-
nale for changes in priorities, the House Report states that "[a] taxing
authority is given preferred treatment because it is an involuntary
creditor of the debtor." H.R. REP. No. 95-595, at 190 (1977).5
We agree with the district court that "it is clear from the plain defi-
nitions of ‘extend’ and ‘credit’ that voluntariness is implicit in the
statute." J.A. 160. Appellant’s contention that the volun-
tary/involuntary distinction regarding the genesis of the IRS’s claim
against a debtor is irrelevant has the effect of reading the words "that
extends credit" out of the statute. Every creditor involved in bank-
ruptcy proceeding, including the IRS, necessarily "has a claim against
a debtor," § 101(10). If the claim is not volitional in any sense, the
phrase "that extends credit" becomes surplusage. "Such a reading,
therefore, is inconsistent with the principle that a court is obliged to
‘give effect, if possible, to every word Congress used.’" United States
v. Williams, 364 F.3d 556, 559 (4th Cir. 2004)(quoting Reiter v. Sono-
tone Corp., 442 U.S. 330, 339 (1979)).
B.
Even if we considered the IRS a "creditor that extends credit," we
do not believe that Congress intended a bankruptcy trustee to wield
the extraordinary collection powers of the federal government. The
Internal Revenue Code grants the IRS "powers to enforce its tax liens
which are greater than those possessed by private secured creditors
under state law." Knapp, 285 B.R. at 181 (citing United States v.
Whiting Pools, Inc., 462 U.S. 198, 210 (1983)). This enforcement
authority—including the ability to attach entireties property to secure
5
Appellant argues that we are bound by our definition of "extension of
credit" in Foley & Lardner v. Biondo (In re Biondo), 180 F.3d 126 (4th
Cir. 1999), as including any "transaction that results in the lengthening
of a debtor-creditor relationship" or any "allowance of additional time for
the payment of debts." Id. at 132 (internal quotations omitted). We do not
disagree. However, that decision involved a voluntary creditor, a law
firm, seeking a determination that a debt arising from a settlement of its
legal fees and costs was not dischargeable due to the debtors’ fraud. It
did not address the distinction between voluntary and involuntary credi-
tors at issue here.
10 SCHLOSSBERG v. BARNEY
the delinquent taxes of but one of the co-tenants—is based on the
IRS’s status not as a creditor, but as federal tax collector:
[T]he Government’s right to seek a forced sale of the entire
property in which a delinquent taxpayer had an interest does
not arise out of its privileges as an ordinary creditor, but out
of the express terms of [the Internal Revenue Code]. More-
over, the use of th[is] power . . . is not the act of an ordinary
creditor, but the exercise of a sovereign prerogative, incident
to the power to enforce the obligations of the delinquent tax-
payer himself, and ultimately grounded in the constitutional
mandate to lay and collect taxes.
United States v. Rodgers, 461 U.S. 677, 697 (1983) (internal quota-
tions omitted). Accordingly, the Court’s discussion in Craft of the
IRS’s authority under the federal tax lien statute would appear to be
limited to the IRS as the federal tax collector, not as an ordinary cred-
itor. Cf. Knapp, 285 B.R. at 183.
Nothing in the text or legislative history of the strong-arm clause
suggests that Congress intended a bankruptcy trustee to be capable of
invoking the "sovereign prerogative" to attach property that ordinary
secured creditors could not reach. To read § 544 as granting such
authority would lead to two anomalous results. First, it would eviscer-
ate the exemption for tenancies by the entireties that the Bankruptcy
Code explicitly recognizes.6 See 11 U.S.C. § 522(b)(2)(B). Second, it
6
At oral argument, Appellant contended that the federal tax lien statute
relied on in Craft constitutes "applicable nonbankruptcy law" for pur-
poses of § 522(b)(2)(B). He then argued that because a debtor may
exempt property owned as a tenancy by the entireties from the bank-
ruptcy estate pursuant to § 522(b)(2)(B) only to the extent that the prop-
erty is "exempt from process under applicable nonbankruptcy law," the
holding in Craft effectively disallows the exemption of entireties prop-
erty. Because Appellant failed to raise this argument in his opening brief,
we consider it waived. United States v. Brower, 336 F.3d 274, 277 n.2
(4th Cir. 2003). We pause to note, however, that Appellant’s reading of
"applicable nonbankruptcy law" would also effectively eliminate the
entireties exemption from the Bankruptcy Code and thus suffers from the
same analytical infirmity discussed above. Consequently, we would not
accept Appellant’s argument even if it were properly before us.
SCHLOSSBERG v. BARNEY 11
would eliminate the protections afforded to a non-debtor spouse under
11 U.S.C. § 363(h), which permits a trustee to sell entireties property
for the benefit of joint creditors of the debtor and her spouse only
under certain circumstances. See 11 U.S.C. § 363(h) (permitting sale
of entireties property only if, inter alia, (1) partition in kind is imprac-
ticable, (2) sale of the estate’s undivided interest would realize signif-
icantly less than sale free of the spouse’s interest, and (3) the benefit
of the sale to the estate outweighs the detriment to the spouse); see
also Sumy, 777 F.2d at 927-30. Because we "‘must account for a stat-
ute’s full text,’" we cannot interpret one section of a statute in a way
that would nullify the clearly worded language of other sections of the
same statute. Gadsby v. Grasmick, 109 F.3d 940, 952 (4th Cir. 1997)
(quoting United States Nat’l Bank of Or. v. Indep. Ins. Agents of Am.,
Inc., 508 U.S. 439, 455 (1993) (internal quotations omitted)).
Moreover, were Appellant able to stand in the shoes of the IRS,
conceivably no state law exemption would continue to exist, despite
the Bankruptcy Code’s explicit recognition of exemptions under state
law. Section 6334(c) of the Internal Revenue Code authorizes the IRS
to levy upon any property or rights to property "other than the prop-
erty specifically made exempt by [§ 6334(a)]." 26 U.S.C. § 6334(c).
In other words, once the taxpayer’s property interest is established for
purposes of the federal tax lien statute, "state law is inoperative to
prevent the attachment of liens created by federal statute in favor of
the United States." Drye v. United States, 528 U.S. 49, 52 (1999); see
also Mitchell, 403 U.S. at 204 (holding that Texas Homestead Law
does not bar IRS from levying against such property). The Bank-
ruptcy Code explicitly recognizes that property exempt from the
estate remains subject to a federal tax lien. 11 U.S.C. § 522(c)(2)(B).
Thus, if a trustee could assert the rights of a hypothetical federal tax
lien holder, no state law exemption would exempt property from the
estate, and § 522(b)(2)(B) would be superfluous. We are unwilling to
read Craft to compel this result.
IV.
Because we cannot conclude that the strong-arm clause of the
Bankruptcy Code vests Appellant with the rights and powers of the
IRS under federal tax laws to reach entireties property for the benefit
of a debtor’s individual creditors, the judgment of the district court is
AFFIRMED.