Johnston v. Hazlett ( 2000 )

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
ELECTRONIC CITATION: 2000 FED App. 0126P (6th Cir.)
File Name: 00a0126p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
;
Debtor. 
In re: ROBIN L. JOHNSTON,
________________________ 


No. 98-3954

ROBIN L. JOHNSTON, >
Appellant, 



v.


THOMAS HAZLETT,
Appellee. 

1
Appeal from the Bankruptcy Appellate Panel
of the Sixth Circuit.
No. 97-59613—Barbara J. Sellers, Bankruptcy Judge.
Argued: September 14, 1999
Decided and Filed: April 7, 2000
Before: BATCHELDER* and GILMAN, Circuit Judges;
HOOD, District Judge.
*
The Honorable Denise Page Hood, United States District Judge for
the Eastern District of Michigan, sitting by designation.
1
2 In re Johnston No. 98-3954
_________________
COUNSEL
ARGUED: Andrew W. Miller, Steubenville, Ohio, for
Appellant. Thomas Hazlett, HARPER & HAZLETT, St.
Clairsville, Ohio, for Appellee. ON BRIEF: Andrew W.
Miller, Steubenville, Ohio, for Appellant. Thomas Hazlett,
HARPER & HAZLETT, St. Clairsville, Ohio, for Appellee.
_________________
OPINION
_________________
ALICE M. BATCHELDER, Circuit Judge. Debtor-
Appellant Robin L. Johnston appeals the decision of the
Bankruptcy Appellate Panel affirming the Bankruptcy Court’s
denial of her claim that her 1997 earned income tax credit
(“EIC”) is exempt from inclusion in her Chapter 7 bankruptcy
estate. For the reasons that follow, we affirm the decision of
the Bankruptcy Appellate Panel.
I.
On October 20, 1997, Robin L. Johnston filed a voluntary
petition for relief under Chapter 7 of the United States
Bankruptcy Code. Johnston listed in her petition for relief a
1997 EIC in the amount of $2,000 and claimed the entire
amount as an exemption. The Bankruptcy Court sustained the
Trustee’s objection to the exemption, rejecting Johnston’s
argument that because she had no “legal or equitable interest”
in the EIC at the time she filed her petition, the EIC cannot be
defined as property of the estate under 11 U.S.C. § 541. The
Bankruptcy Appellate Panel for the Sixth Circuit affirmed the
disallowance of the exemption, holding that an EIC is
property of the bankruptcy estate under 11 U.S.C. § 541, even
if the bankruptcy petition is filed prior to the end of the tax
year in which the EIC is earned.
No. 98-3954 In re Johnston 3
Johnston raises three assignments of error on appeal: (1)
because she was not entitled to the EIC until the end of the tax
year, she had neither a legal nor an equitable interest in the
EIC at the time she filed her petition, and therefore, it was not
part of the bankruptcy estate; (2) the opt-out provision of 11
U.S.C. § 522(b)(1) is unconstitutional; and (3) public policy
militates in favor of allowing her to keep the EIC in light of
her limited earnings. Because she raises the latter two for the
first time on appeal, we will not address them,1 and will
confine our review to Johnston’s first assignment of error.
II.
Whether the EIC was properly included as property of the
bankruptcy estate is purely an issue of law. We review a
bankruptcy court’s conclusions of law de novo. Nicholson v.
Isaacman (In re Isaacman), 26 F.3d 629, 631 (6th Cir. 1994).
The overwhelming majority of courts confronted with this
issue have rejected the argument that Johnston makes here.2
In Baer v. Montgomery (In re Montgomery), 219 B.R. 913
(10th Cir. B.A.P. 1998), for example, the bankruptcy court
had determined that a debtor’s EIC for the pre-petition portion
of the tax year was not part of the bankruptcy estate. The
court based its reasoning on the opinion in Hoffman v. Searles
1
Issues not raised before the trial court are generally considered
waived. See White v. Anchor Motor Freight, Inc., 899 F.2d 555, 559 (6th
Cir. 1990).
2
See, e.g., Baer v. Montgomery (In re Montgomery), 219 B.R. 913
(10th Cir. B.A.P. 1998); In re Fraire, No. 96-1241-JTM, 1997 WL 45465
(D. Kan. Jan. 2, 1997); In re McCourt, 217 B.R. 998 (Bankr. S.D. Ohio
1997); In re Barnett, 214 B.R. 632 (Bankr. W.D. Okla. 1997); In re
Beagle, 200 B.R. 595 (Bankr. N.D. Ohio 1996); In re Kurilich, 199 B.R.
161 (Bankr. N.D. Ohio 1996); In re Goertz, 202 B.R. 614 (Bankr. W.D.
Mo. 1996); In re George, 199 B.R. 60 (Bankr. N.D. Okla. 1996); In re
Brown, 186 B.R. 224 (Bankr. W.D. Ky. 1995); In re Goldsberry, 142
B.R. 158 (Bankr. E.D. Ky. 1992); In re Buchanan, 139 B.R. 721 (Bankr.
D. Idaho 1992); In re Davis, 136 B.R. 203 (Bankr. S.D. Iowa 1991); In
re Richardson, 216 B.R. 206 (Bankr. S.D. Ohio 1997).
4 In re Johnston No. 98-3954 No. 98-3954 In re Johnston 5
(In re Searles), 445 F. Supp. 749 (D. Conn. 1978), which held required to vest an individual with a property interest in
that under the “fresh start” provision of § 70a(5) of the EICs.” Id.
Bankruptcy Act, EICs are “expectancies” accruable at the end
of the tax year and payable in the year following bankruptcy. In the case before us here, the Bankruptcy Appellate Panel
Searles, 445 F. Supp. at 753. The Bankruptcy Appellate reviewed the reasoning and conclusions of Montgomery and
Panel for the Tenth Circuit reversed and remanded, noting concluded, “Montgomery also held that EICs are property of
that the bankruptcy court’s conclusions were misplaced in the estate under § 541, even when the bankruptcy petition is
light of the Bankruptcy Reform Act of 1978: filed prior to the end of the tax year. ‘Congress intended EICs
to be available to qualifying individuals at anytime during the
The Bankruptcy Act was repealed in favor of the tax year.’ We agree with Montgomery.” Johnston v. Hazlett
modern Bankruptcy Code by the Bankruptcy Reform Act (In re Johnston), 222 B.R. 552, 555 (6th Cir. B.A.P. 1998)
of 1978. Though the “fresh start” maxim rising from (internal citations omitted).
section 70a(5) of the Act may have been a fundamental
consideration in the formation of the Code, we recognize We agree with the Bankruptcy Appellate Panel that the
the maxim to be a limited, and no longer a completely reasoning of the Montgomery panel is correct. Accordingly,
unencumbered, guiding principle. Unlike the Act, the we hold that in the case before us here, the bankruptcy court
Code requires that all property of the debtor, whether or and appellate panel properly determined that Johnston’s EIC
not exempt, be included in the bankruptcy estate, was property of the bankruptcy estate, despite the fact that
mandating that an estate in bankruptcy comprise “all Johnston filed her bankruptcy petition prior to the end of the
legal or equitable interests of the debtor in property as of tax year in which the credit was earned.
the commencement of the case.” 11 U.S.C. § 541(a)(1)
(1994). Legislative history indicates section 541 is CONCLUSION
intended to be given a broad definition to include “all
kinds of property, including tangible or intangible The decision of the Bankruptcy Appellate Panel affirming
property, causes of action . . ., and all other forms of the judgment of the Bankruptcy Court is AFFIRMED.
property specified in section 70a of the Bankruptcy Act
. . . . [I]t includes as property of the estate all property of
the debtor, even that needed for a fresh start.” H.R.Rep.
No. 95-595, at 367 (1977). Any conclusion that EICs are
necessary or mandatory for a “fresh start” may be
reasonably inferred under the Act, but is incorrect in light
of the Code.
Montgomery, 219 B.R. at 916 (alteration in original).
Montgomery further held that “qualifying individuals may
request payment of EICs at the end of the tax year, or at any
time during the tax year,” id. at 917, and, citing In re Davis,
136 B.R. 203, 207 (Bankr. S.D. Iowa 1991), that “[n]either
possession nor constructive possession, either prior to or
contemporaneous with the filing for bankruptcy protection, is