MEMORANDUM OPINION

ROBERT H. JACOBVITZ and DAVID T. THUMA, Bankruptcy Judges.

At the request of the Chapter 13 Trustee ("Trustee") and the Office of the United States Trustee ("UST"), the Court revisits a thorny issue involving payment of trustee's fees: May the Trustee pay herself the statutory percentage fee in Chapter 13 cases where no plan is confirmed?1 The question was raised in this District in 2001 and answered in the negative.2 Armed with new, thoughtful arguments about statutory construction, the Trustee and UST urge the Court to take another look.3 Debtors argue that the statutes have not changed materially since 2001, so there is no reason to second guess the well-reasoned Rivera/Miranda decisions. After a careful review, the Court has determined that the better interpretation of the statutes in question prohibits the Trustee from collecting her fees in cases where no plan is confirmed.

I. FACTS AND PROCEDURAL HISTORY

The same issue was raised in two cases, one assigned to Judge Jacobvitz and one assigned to Judge Thuma. Because there is a paucity of case law on the issue, and resolution of the issue is important to the administration of Chapter 13 cases, the judges heard the Debtors'4 motions en banc. The Debtors and the Trustee either stipulated to or conceded the following:5

1. The Debtors each filed Chapter 13 petitions and plans, and then began making payments to the Trustee in the amounts proposed by their plans.6

2. Debtors' plans are in the form typically used in New Mexico, and both provided that the Trustee "shall receive a percentage fee for each disbursement as fixed by the United States Trustee pursuant to 28 U.S.C. § 586, not to exceed 10 percent."

3. Neither plan was confirmed. Instead, before confirmation, the Harrell Debtors' case converted to chapter 7, and the Acevedo Debtors' case was dismissed.

4. The Chapter 13 Trustee collected a 10% commission on payments she received in both cases, and retained that amount before disbursing the balance of the payments received to Debtors' counsel in partial payment of counsel's approved fees.7

5. Debtors' counsel filed motions to require the Trustee to disgorge the retained trustee's fees. The Trustee and UST objected.

6. The Trustee did substantial work in each case.

7. The UST's current Handbook for Chapter 13 Standing Trustees (October 1, 2012 edition) provides the following guidance to trustees:

II. DISCUSSION

A. The Statutory Subsections in Question. Resolution of the issue before the Court turns on the construction of two statutory subsections. The first is 28 U.S.C. § 586(e), which authorizes the Attorney General in consultation with the UST to fix a percentage fee for standing trustees in Chapter 12 and Chapter 13 cases. 28 U.S.C. § 586(e)(1). Section 586(e) further provides:

28 U.S.C. § 586(e)(2).

The second subsection is 11 U.S.C. § 1326(a), found in Chapter 13 of the Bankruptcy Code. It provides:

11 U.S.C. § 1326(a)(1)(A) and (a)(2).

In Chapter 13 cases with confirmed plans, these two subsections make clear that the trustee is paid the designated percentage fee from the debtors' plan payments made to the trustee. The issue before the Court is whether the trustee may also be paid her percentage fee in cases where no plan is confirmed, or instead must return to the debtor all plan payments received after deducting any unpaid claim allowed under § 503(b).8

B. The Parties' Arguments. The Trustee asserts that § 586(e)(2) unambiguously requires her to deduct the trustee's percentage fee from all payments she receives from the debtors, whether or not a plan is confirmed, and to apply the funds received for the fee to pay the percentage fee. She further argues that § 586(e)(2) is the only statute that governs payment of the trustee's fee, and that § 1326 addresses distributions to creditors, not payment of the trustee's statutory percentage fee. Finally, the Trustee argues that under § 586(e)(2) her obligation to collect the percentage fee is "triggered" by receipt of plan payments, not plan confirmation.

The UST agrees with the Trustee that § 586(e)(2) is mandatory — "the trustee has no discretion in the matter but is required to collect the fee in every applicable case."9 The UST's argument varies from the Trustee's, however, because it acknowledges the relevance of § 1326 to the issue. The UST asserts that § 1326 can be read in harmony with § 586(e)(2) by construing § 1326(a)(2) to require the trustee to return to the debtor only those payments made to the trustee for distribution to creditors (less payment of administrative expenses), but not to require return of the trustee's percentage fee in unconfirmed cases.

C. Statutory Construction. When interpreting federal statutes, the Court's primary goal is to deduce the intent of Congress from the statute's language, and apply the statute accordingly. See In re HealthTrio, Inc., 653 F.3d 1154, 1161 (10th Cir.2011) ("`It is our primary task in interpreting statutes to determine congressional intent, using traditional tools of statutory construction.'") (quoting St. Charles Inv. Co. v. Comm'r, 232 F.3d 773, 776 (10th Cir.2000)(additional internal quotation marks omitted)). When interpreting a statute, words should generally be given their ordinary or natural meaning. Leocal v. Ashcroft, 543 U.S. 1, 9, 125 S.Ct. 377, 160 L.Ed.2d 271 (2004). See also, Hackwell v. United States, 491 F.3d 1229, 1236 (10th Cir.2007)(stating that words used in a statute will be interpreted according to "`their ordinary, contemporary, common meaning' at the time Congress enacted the statute")(quoting Perrin v. United States, 444 U.S. 37, 100 S.Ct. 311, 62 L.Ed.2d 199 (1979)). If the language of a statute is clear, ordinarily the Court's inquiry ends. See State Bank of Southern Utah v. Gledhill (In re Gledhill), 76 F.3d 1070, 1077 (10th Cir.1996) ("If the statute is clear, our inquiry ends.") (citation omitted). "`It is a well-established law of statutory construction that, absent ambiguity or irrational result, the literal language of a statute controls.'" HealthTrio, 653 F.3d at 1161 (quoting Edwards v. Valdez, 789 F.2d 1477, 1481 (10th Cir.1986)).10 Further, courts must read statutes as a whole, rather than in isolation. See United States v. Morton, 467 U.S. 822, 828, 104 S.Ct. 2769, 81 L.Ed.2d 680 (1984) ("We do not ... construe statutory phrases in isolation; we read statutes as a whole."). Accordingly, the meaning ascribed to a particular phrase must be consistent with the larger statutory context. See Rake v. Wade, 508 U.S. 464, 474, 113 S.Ct. 2187, 124 L.Ed.2d 424 (1993) ("[S]tatutory terms are often `clarified by the remainder of the statutory scheme-because the same terminology is used elsewhere in a context that makes [its] meaning clear....'") (quoting United Sav. Ass'n v. Timbers of Inwood Forest Assocs., Ltd., 484 U.S. 365, 371, 108 S.Ct. 626, 98 L.Ed.2d 740 (1988)). In general, only if the language of a statute is ambiguous should the court consider legislative history and public policy underlying the statute to discern its meaning. See United States v. LaHue, 170 F.3d 1026, 1028 (10th Cir.1999) ("Where the statute is ambiguous, we look to the legislative history and the underlying public policy of the statute.")(citing United States v. Simmonds, 111 F.3d 737, 742 (10th Cir.1997)). See also, United States v. Montgomery, 475 B.R. 742, 746 (D.Kan.2012) (the court looks to the legislative history and the underlying public policy only if a statute's plain language is ambiguous as to Congressional intent). Finally, whenever possible, the Court should construe apparently conflicting statutes harmoniously. See Chemical Weapons Working Group, Inc. v. U.S. Dept. of the Army, 111 F.3d 1485, 1490 (10th Cir.1997) ("We also must construe apparently conflicting statutes harmoniously where possible.") (citation omitted); Precision Indus., Inc. v. Qualitech Steel SBQ, LLC, 327 F.3d 537, 544 (7th Cir.2003) (court has an obligation to construe two statutory provisions in such a way as to avoid conflicts between them, if such a construction is possible and reasonable). With these principles in mind, the Court will consider the language of the two statutes in question.

D. Section 1326(a)(2) Refers to All of the Debtors' Plan Payments to the Trustee, not Only the Portion for Distribution to Creditors. Section 1326 refers to two types of payments. First, the debtor makes plan payments to the trustee. See 11 U.S.C. § 1326(a)(1)(A) (providing that the debtor make "payments ... in the amount ... proposed by the plan to the trustee"). Then, when the plan is confirmed the trustee takes those payments, deducts her fee, pays administrative claims, and pays pre-petition creditors in accordance with the terms of the plan. See § 1326(a)(2), (b) and (c).11

Section 1326(a)(2) states that, if no plan is confirmed, the Trustee must return to the debtor all payments made under § 1326(a)(1)(A), less allowed administrative claims.12 Section 1326(a)(1)(A) provides:

Thus, in cases where no plan is confirmed, whether § 1326(a)(2) allows the trustee to retain the trustee's fee depends on the meaning of "payments ... in the amount... proposed by the plan to the trustee." 11 U.S.C. § 1326(a)(1)(A). If the payment described in § 1326(a)(1)(A) includes trustee's fees, then under § 1326(a)(2) the trustee would not be entitled to retain the fees in unconfirmed cases.

The UST does not dispute that "payments ... in the amount ... proposed by the plan to the trustee" includes all payments to the trustee for ultimate distribution to creditors. The UST asserts, however, that the amount "proposed" under § 1326(a)(1) includes only payments for ultimate distribution to creditors, and cannot include funds received for payment of trustee's fees. The UST reasons that the term "proposed" connotes discretion or choice. Because trustee's fees are mandated by § 586(e)(2), such fees cannot be "proposed" by a plan.13 If the UST's construction were adopted, 11 U.S.C. § 1326(a) and 28 U.S.C. § 586(e) could be harmonized: § 586(e)(2) would require payment of the trustee's fees in all cases in which a debtor makes payments to the trustee, including cases in which no plan is confirmed, while payments under § 1326(a)(1)(A) would only include payments to the trustee for disbursement to creditors; thus, the payments the trustee is required to return to the debtors under § 1326(a)(2) would not include the trustee's fee.14

We begin by examining the plain language of § 1326(a)(1) in the context of the relevant statutes as a whole, giving words their ordinary and natural meaning. The Court finds that the ordinary and natural meaning of the phrase "the amount proposed by the plan to the trustee" is whatever amount will be paid to the trustee under the plan. This amount includes both the amount of the trustee's percentage fee and the amount to be distributed by the trustee to creditors.15 A debtor's plan ordinarily proposes monthly lump sum payments to the trustee for the term of the plan.16 The trustee collects her percentage fee from the payments she receives,17 and ordinarily the only payments she receives are the monthly lump sum payments provided for in a debtor's proposed plan.18 Thus, payments under § 1326(a)(1)(A) necessarily include the amount for the trustee's fee.

The Tenth Circuit's decision in In re BDT Farms, Inc., 21 F.3d 1019 (10th Cir.1994), supports this conclusion. In BDT Farms, the Tenth Circuit held (construing 28 U.S.C. § 586(e)(2)) that the Chapter 12 trustee collects the percentage fee from the entire monthly payment specified under a Chapter 12 plan. BDT, 21 F.3d at 1023.19 The "payments" addressed in BDT Farms are the ones referred to in § 1226(a), the parallel section to § 1326(a) in Chapter 13 cases. In reaching its conclusion, the Tenth Circuit construed "all payments received by such individual [the trustee] under plans," contained in § 586(e)(2), to mean the entire monthly payment, without deduction a portion for the trustee's percentage fee.

The Court rejects the UST's assertion that a debtor cannot "propose" to pay trustee's fees. First, while the Court agrees that the fee percentage is fixed as set forth in § 586(e), the actual dollar amount of the fee is not fixed. Instead, the dollar amount of the fee depends on the size of the debtor's monthly lump sum plan payment. Often, the debtor files a plan proposing a smaller monthly plan payment (which would result in a smaller trustee's fee), while the trustee objects and argues that the monthly payment should be larger. The fee the trustee actually collects can vary significantly, depending on the outcome of the dispute over the size of the monthly plan payment. Thus, although the fee percentage is mandated, the debtor nevertheless "proposes" the amount of the monthly fee when she files her plan.

Second, other payments a debtor proposes to pay the trustee under § 1326(a)(1)(A) are as "mandatory" as the trustee's fee. For example, in jurisdictions requiring residential mortgage payments to be made through the trustee, a debtor must pay, without modification, all amounts due after commencement of the Chapter 13 case under a residential mortgage loan in accordance with the pre-bankruptcy agreement of the parties. See 11 U.S.C. § 1322(b)(2).20 Similarly, pursuant to § 1322(f) a plan may not materially alter the terms of certain loans from ERISA-qualified plans; where such a loan is outstanding and if the court requires that the payment be made through the trustee, the debtor has no choice but to repay through the trustee the loan as agreed. In either case, there is no dispute or potential dispute to be resolved by a proposal, but the amounts are included in the monthly payment "proposed" by a plan under § 1326(a)(1)(A).

Section 1326(b) supports the Court's interpretation of § 1326(a)(1)(A). Section 1326(b) requires the standing Chapter 13 trustee to pay the trustee's percentage fee "before or at the time of each payment to creditors under the plan." But the trustee may pay creditors only under a confirmed plan. See 11 U.S.C. § 1326(a)(2) (requiring the trustee to retain the payments until confirmation or denial of confirmation, and then distribute the payments in accordance with the plan "[i]f a plan is confirmed"). Because the trustee will never pay creditors if no plan is confirmed, and § 1326(b) provides for payment of trustee fees before or the time the trustee pays creditors, it follows that, if confirmation never happens, § 1326(b) does not contemplate payment of the trustee's percentage fee. See Rivera, 268 B.R. at 294 (observing that § 1326(b) "seems to assume a prior confirmation.").

The Court's interpretation of § 1326(a)(1)(A) is also consistent with the overall purpose of § 1326. When the Bankruptcy Code was enacted in 1978, § 1326 consisted only of what are now subparagraphs (b) and (c).21 There was no mention of payments proposed by a plan, payments by the debtor to the trustee, or disbursement of payments under a plan if a plan is not confirmed; the section only addressed payment of the trustee's fee and "payments to creditors" to be made by the trustee. Section 1326(a) was added in 1984, to require debtors to start making plan payments to the trustee shortly after the case was filed and prior to plan confirmation.22 It seems very unlikely Congress intended to require that debtors make only partial payments, i.e. the payments for the benefit of creditors but not the trustee's fees. The Court therefore concludes that the § 1326(a)(1)(A) payments include the trustee's fees.

Finally, the Court's interpretation of § 1326(a)(1)(A) is consistent with the structure of § 1326. The UST's proposed reading of § 1326(a)(1)(A) would mean that the debtor's required payments to the trustee are less than the payments the trustee must make under § 1326(b) and (c). Such a construction is not reasonable given the language of § 1326(a)(1)(A). The better reading is that payments proposed by a plan to the trustee under § 1326(a)(1)(A) include the trustee's fees, so the proposed amount matches what the trustee is required to pay out under § 1326(b) and (c).

E. Section 586(e)(2) Cannot be Read in Isolation, and Can be Harmonized with § 1326. The first sentence of 28 U.S.C. § 586(e)(2)23 can be construed in at least three ways:

Each of these three constructions is plausible. Without reference to Chapter 12 and Chapter 13, the Trustee's and UST's proposed "mandatory" construction makes some sense. Given the Court's construction of § 1326(a)(1)(A), however, the "mandatory payment" interpretation of § 586(e)(2) creates a conflict with § 1326 because it requires the Trustee to collect and retain the percentage fee (or to pay any surplus to the UST System Fund) in the face of § 1326(a)(2)'s directive to return payments to the debtor if a plan is not confirmed.

To avoid this conflict, the Court concludes that the best, most harmonious reading of the two statutes is that § 586(e)(2) directs the trustee to collect and hold the percentage fees pending plan confirmation, while § 1326(a)(2) tells the trustee when and how to disburse payments after confirmation or denial of confirmation, including the trustee's percentage fee.24 The UST points out that § 586(e)(2) requires the trustee to collect the percentage fee on all payments received under plans, not limiting such collection to confirmed plans. The UST points out further that in the Code, the term "plan" is used to refer to both confirmed and unconfirmed plans unless the term "confirmation" or "confirmed" appears in close proximity or the context clearly dictates otherwise. The Court finds this argument persuasive as it relates to § 586(e)(2) and agrees that the trustee is to collect the percentage fee from all payments received under both confirmed and unconfirmed plans. This construction is consistent with the Court's determination that payments proposed by a plan under § 1326(a)(1)(A) include all payments the debtor makes to the trustee, including the trustee's percentage fee. The Court disagrees that the term "collect," as used in § 586(e)(2), includes not only setting aside funds from payments received under plans for trustee's fees but also paying those funds to the trustee or to the UST System Fund. Such a construction would conflict with §§ 1326(a)(1)(A) and 1326(b)(2). As discussed above, § 1326(b)(2) requires the trustee in unconfirmed cases to return to the debtor all funds received, including the trustee's fee, after payment of administrative expenses. Consequently, even though § 586(e) does not specifically address when the collected trustee's fees are to be paid out, the Court rejects the UST's construction of § 586 payment of such fees from payments in cases with unconfirmed plans.

The requirement in the second sentence of § 586(e)(2),25 directing the Trustee to pay certain excess funds to the UST System Fund, does not conflict with the Court's interpretation of § 586 and § 1326. Both clauses in the second sentence of § 586(e)(2) can be reasonably interpreted only to require payments in cases in which plans are confirmed. Nothing in the second sentence of § 586(e)(2) requires the trustee to generate such a surplus by paying her salary and operating expenses from funds collected in cases where no plan is confirmed.

F. Comparing § 1226 and § 1326. The Court's harmonization of § 586 and § 1326 is further supported by the differences between § 1326(a)(2) and its Chapter 12 counterpart, § 1226(a)(2). Section 1226(a) provides:

11 U.S.C. § 1226(a) (emphasis added). Thus, for Chapter 12 cases, Congress specifically addressed the issue by allowing the standing Chapter 12 trustee to deduct her percentage fee in unconfirmed cases from funds returned to the debtor. Congress did not, however, add similar language to § 1326(a)(2). Section 1226(a) was adopted in 1986, two years after Congress added what is now § 1326(a). When Congress enacted § 1226(a), it also amended § 1326, leading the Court to conclude that Congress could have easily inserted a similar provision into § 1326(a). The fact that it did not supports an inference that Congress intended different treatment of trustee fees in Chapter 12 and 13 cases. When "`Congress includes particular language in one section of a statute but omits it in another section of the same Act,'" the difference is presumed to be intentional. Russello v. United States, 464 U.S. 16, 23, 104 S.Ct. 296, 78 L.Ed.2d 17 (1983) (quoting United States v. Wong Kim Bo, 472 F.2d 720, 722 (5th Cir.1972)). See generally Miranda, 2001 WL 1538003, at *2 (citing the foregoing cases and stating that "Congress knew how to clearly express such allowance of percentage fees, and its failure to do so in § 1326(a) indicates Congress did not intend to allow such fees in Chapter 13 cases where plans are not confirmed."). It would be improper for the Court to read § 1226(a)(2) into Chapter 13, or to ignore the crucial difference between the sections.

G. Rivera and Miranda. Finally, although neither Rivera nor Miranda is binding on this Court,26 the Court remains persuaded by the reasoning in those cases. Both Rivera and Miranda found that while § 586(e) authorizes the standing Chapter 13 trustee to collect the percentage fee and determine how the fee shall be calculated, it must be read in conjunction with § 1326, the applicable Bankruptcy Code section which calls for the standing Chapter 13 trustee to return payments to the debtor (less administrative expenses) if a plan is not confirmed. See Rivera, 268 B.R. at 293-294; Miranda, 2001 WL 1538003, at *2. Miranda also found persuasive the specific language contained in § 1226 which Congress did not include in the parallel statute applicable to Chapter 13. Id. The UST's and the Trustee's request for a different result is not based on a substantial change in the relevant statutes, but rather on new arguments about the construction of those statutes.27 That is too slender a reed. The Court has considered the UST's and the Trustee's arguments and found them unpersuasive.

III. CONCLUSION

The two statutes at issue can best be harmonized if § 586(e)(2) is construed to a) identify a source from which trustee's percentage fees are to be paid; and b) instruct the Trustee to collect and hold the fees pending plan confirmation; § 1326(a), in turn, dictates the conditions and timing of payment. This construction, the Court believes, is what Congress intended, and is a more natural reading of the subsections. The Court acknowledges that its method of harmonizing the statutes is not totally satisfying — it is based on a somewhat unnatural reading of the first sentence of § 586(e)(2). The only alternative, however, is a substantially less natural reading of § 1326(a). On the whole, the Court believes that its construction better reflects legislative intent. 11 U.S.C. § 1326(a)(2) and 28 U.S.C. § 586(e)(2), read together, require the Trustee to return all plan payments to the Debtors (after deducting administrative expenses) without first deducting her percentage fees.

The Motions will be granted. Separate orders will be entered.