KARLIN, Bankruptcy Judge.

The issue we face is whether a debtor's wages need to be both earned and received during the applicable six-month "look-back" period in order to be included as part of his "current monthly income" under 11 U.S.C. § 101(10A). Debtor Vede Jacob Miller ("Miller") timely appealed the bankruptcy court's order dismissing his Chapter 7 petition after the court determined that, when properly calculated, Miller's current monthly income ("CMI") disqualified him from proceeding under Chapter 7 of the Bankruptcy Code.1 When Miller declined to convert his bankruptcy case from Chapter 7 to Chapter 13, the bankruptcy court dismissed his petition. We affirm the dismissal.

I. BACKGROUND

The relevant facts are undisputed. Miller filed his Chapter 7 bankruptcy petition in April 2013. He claimed the § 707(b) presumption of abuse did not apply to his bankruptcy filing, under § 707(b)(7)(A), which effectively exempts a filer from the presumption of abuse if his income is less that the median income for his state and family size. When Miller filed his bankruptcy, he was paid bi-weekly (26 times annually) and reported gross annual income of $77,705 and $81,066 in 2011 and 2012, respectively. When he filed, the median income for a family of three in Wyoming was $73,688; it was $78,733 for a family of four.

Miller's first Form B22A (the Chapter 7 means test) listed a family size of 3 and a CMI of $4,977, resulting in a calculated annual income of $59,721. Three months later, Miller filed an amended B22A form, this time claiming a family size of 4 and a CMI of $6,112—$73,338 annually, still $300 below Wyoming's median income for a family of three. The figure was also $5,395 less than the $78,733 median income for a family of four, the family size Miller claimed on the amended form.2

The United States Trustee (UST) contested Miller's CMI calculations, which Miller based on his understanding of the term "current monthly income," as defined in § 101(10A). That definition includes, "income from all sources that the debtor receives ... without regard to whether such income is taxable income, derived during the 6-month period." Miller argued that the "derived during" language means "earned during," such that his CMI only need include income he both received and earned during the look-back period.3 The UST read the definition to include all money received during the look-back period, regardless when it was earned.

These differing definitions led the UST and Miller to dispute the inclusion of one payment, which Miller received on October 10 in the amount of $2,942. Those wages were in compensation for work he completed in the two weeks before commencement of the look-back period—the "10/10 payment."4 Eliminating this payment from Miller's CMI calculation reduced his annualized income to nearly $6,000 below the Wyoming annual median for a family of four. But when the UST included that payment, Miller's income placed him at above-median income status. As a result, Miller's CMI would have resulted in Miller having to repay (under a 60-month repayment plan required of above median income debtors) approximately $42,000 to his unsecured creditors. Since he listed total non-priority unsecured debt of $58,062, creditors would have potentially received payment of more than 70% of their claims.

Based on this calculation, the UST filed a Statement of Presumed Abuse pursuant to §§ 707(b) and 704(b)(2),5 and a motion to dismiss Miller's case pursuant to § 707(b)(2) and (3).6 Miller then filed his own motion for partial summary judgment, claiming that because the 10/10 payment should be excluded, he should be allowed to proceed in Chapter 7.

The bankruptcy court agreed with the UST interpretation, holding that all income received by a debtor in the look-back period must be included in the calculation of CMI "without relation to when that income was earned."7 As a result, the bankruptcy court dismissed Miller's case pursuant to § 707(b)(2)8 when he declined to convert to a Chapter 13 proceeding.

II. APPELLATE JURISDICTION

This Court has jurisdiction to hear timely filed appeals from "final judgments, orders, and decrees" of bankruptcy courts within the Tenth Circuit, unless one of the parties elects to have the district court hear the appeal.9 A decision dismissing a bankruptcy case is a final order for purposes of appeal.10

Miller timely appealed the bankruptcy court's dismissal of his case as well as the order denying him summary judgment.11 Neither party elected to have the appeal heard by the district court, and the parties have therefore consented to appellate review by this Court.

III. ISSUE AND STANDARD OF REVIEW

In calculating CMI pursuant to § 101(10A), is income that was earned before the start of the six-month look-back period included if it is received during that period?

The sole issue on appeal requires us to interpret a statute, a question of law that we review de novo.12

IV. DISCUSSION

Under § 707(b)(1), "the court . . . may dismiss a case . . . or, with the debtor's consent, convert such a case to a case under chapter 11 or 13 of this title, if it finds that the granting of relief would be an abuse of the provisions of this chapter." Section 707(b)(2) sets out a means test that creates a presumption of abuse in many cases, but § 707(b)(7)(A) effectively exempts a debtor from the means test presumption of abuse "if the current monthly income of the debtor . . . and the debtor's spouse combined . . . when multiplied by 12, is equal to or less than" the median income for the debtor's family size in the applicable state. The term "current monthly income" is defined in § 101(10A) as follows:

The parties offer differing interpretations of the term "current monthly income." Miller reads "derived during" to mean "earned during." As a result, he reads § 101(10A) to include only income that he both received and earned during the 6-month look-back period. In other words, he contends the statute excludes both income received in the look-back period that he earned outside of that period and income he earned during the look-back period for which he received payment outside of it. The UST contends that all income received during the look-back period must be included in the calculation of CMI, regardless when it was earned.13

The Tenth Circuit Court of Appeals has not considered this issue, and our independent research has produced no other appellate decisions addressing the meaning of this language. We are thus left to interpret the Code in the first instance. "[I]nterpretation of the Bankruptcy Code starts `where all such inquiries must begin: with the language of the statute itself.'"14 "It is well established that `when the statute's language is plain, the sole function of the courts—at least where the disposition required by the text is not absurd—is to enforce it according to its terms.'"15 Further, "[i]t is a fundamental canon of statutory construction that the words of a statute must be read in their context and with a view to their place in the overall statutory scheme."16 "If the statute's plain language is ambiguous as to Congressional intent, we look to the legislative history and the underlying public policy of the statute."17

The most common definition of "derive" is "to take, receive, or obtain especially from a specified source,"18 and both parties rely on this definition.19 But this definition is actually defining the phrase "derive from." Using the term "derive," as outlined in these definitions, requires the preposition "from." But Congress did not choose the phrase "derived from;" instead, it used the term "derived" in a temporal setting, that is, "derived during." And a dictionary definition analogous to the one for "derived from" for the phrase "derived during" would read as follows: "to take, receive, or obtain, especially during a specified period." Using this definition in the statute, then, the primary dictionary meaning leads us to read "income derived during the look-back period" as "income taken, received, or obtained during the look-back period." The meaning of the terms "taken" and "obtained" are subsumed in the broader term "received,"20 so we read the definition of "income derived during the look-back period" as "income received during the look-back period." This appears to be the plain meaning of the statute.

Admittedly, construing the words "derived during" to be essentially synonymous with the word "received" presents a statutory interpretation challenge, given that Congress used the word "receives" earlier in the same sentence. If the legislature intended the words to have the same meaning, why would it use different words?

Miller makes just this argument, asserting that "if different language is used in different parts of a statute, then a court should presume the legislature intended a different meaning and effect with respect to each term."21 This argument appears to rely on the idea that courts should not read a statute to render any portion of the statute redundant, and reading dissimilar terms to mean the same thing risks creating redundancy. But there is little precedential support for the alleged rule that different words must have different meanings.

The United States Supreme Court has specifically recognized that Congress's use of two different terms in a statute does not preclude the courts assigning the terms the same meaning, noting that Congress may have used the terms, "not as contrasting, but as synonymous or alternative terms."22 And even if this purported rule were a canon, "canons are not mandatory rules" but, rather, are "guides [ ] designed to help judges determine the Legislature's intent as embodied in particular statutory language. And other circumstances evidencing congressional intent can overcome their force."23

Nevertheless, Miller argues "derive" must have a different definition from "receive", and so ultimately interprets "derived during" to require that "the income at issue must originate from, or be earned during, the applicable six-month "look-back" period (i.e., the "specified source" or "origin" of the income)" (emphasis added). But there is simply no basis in the statute or the dictionary definitions for interpreting "derived" as "earned," the latter being a word Miller adds to the definition without explanation. This unjustified addition twists the meaning of the term "derived" and would fundamentally alter the CMI definition. None of the dictionary definitions of "derive" uses the term "earn." Even if Miller is correct that Congress generally does not use two words to mean the same thing, there is simply no basis to substitute "earned" for "derived," as Miller advocates.

Moreover, Miller's general argument, that reading two different words to mean the same thing renders portions of the statute redundant, fails in this case. Careful consideration of this statute indicates that, even when "received" and "derived" are given the same meaning, every portion of the statute remains essential. We note that the first portion of the statute, containing the term "receives," is in the present tense and explains what kind of income is included in a CMI calculation, without respect to its receipt. Thus, "income from all sources that the debtor receives . . . without regard to whether such income is taxable" is included in CMI. The second part of the CMI definition sets the time period applicable to that income; the income must have been "derived during" the look-back period. When the statute is read as a whole, then, it contains no surplusage—both portions of the definition of CMI are necessary to the calculation.

After reviewing the accepted definitions for the term "derived," in the context of the phrase "derived during," the Court concludes that the phrase "income derived during the look-back period" has the plain meaning "income received during the look-back period." This reading does not raise the concerns about redundancy or surplusage sometimes associated with reading dissimilar terms to mean the same thing, and this reading directly applies the commonly accepted dictionary definition of the term "derived" to the question at hand. Because this is the only reasonable interpretation of the statutory language, the language is not ambiguous.24

The Court is aware of the divided case law on this question,25 and Miller relies extensively on two prior Chapter 7 cases, Arnoux and Meade,26 which merit additional discussion. First, Miller relies on Arnoux, but the definition of "derived" was not at issue in Arnoux, as both the Chapter 7 debtor and the UST apparently agreed that the term meant "earned." The only dispute was whether income the debtor received after the look-back period, for work performed during that period, must be included in CMI. Debtor Arnoux argued (as does Miller) that income must be both received and earned in the look-back period, whereas the trustee argued (as does the UST here) that only the term "derived" is actually limited to the look-back period. The debtor had included all income she received during the look-back period, but had excluded a two-week payment for work performed during that period, but received outside of it.

The Arnoux trustee argued that the "natural reading" of § 101(10A) imposed two conditions on income inclusion (only one of which was subject to a time parameter): 1) it was received by the debtor, and 2) it was "derived" (i.e., earned) during the look-back period. Contrary to that trustee's plain language assertion, the Arnoux court determined § 101(10A) to be ambiguous.27 It then considered the statute's legislative history, concluding that the drafters intended the look-back period to apply to both "receives" and "derived."28 Thus, the court held that income must be both received and earned during the look-back period, so income the debtor received outside of the look-back period but earned during it was excluded from the debtor's CMI.

Miller also relies on In re Meade29 to support his position. In Meade, the principal dispute centered around whether the entire $9,000 annual bonus received by one of the debtors during the November 1, 2008 through April 30, 2009 look-back period—theoretically for work done throughout 2008—should be included.30 As the entirety of the bonus was received during the look-back period, the trustee argued that it should all be included in calculating the debtors' CMI. The Meades countered that "a common sense approach" would be to divide the bonus into twelve months, rather than six, since it was an annual bonus.31 Significantly, the Meades had stipulated to their above-median status, and that the statutory presumption of ability to pay their creditors arose under § 727(b)(2). As such, the specific issue in Meade was whether debtors' "disposable income" (CMI, less allowed expenses, times sixty) exceeded the threshold for presumption of abuse.32

The Meade court elected to include only half of the annual bonus in the debtors' CMI. It did so based in large part on the parties' agreement that the term "derived," as used in § 101(10A), meant "earned." This is apparent from the court's discussion regarding the difficulty of prorating a bonus that was paid prior to the look-back period under the parties' statutory reading.33 The court then "acknowledge[d] the conceptual difficulties" of its holding, but found them to be no greater than the problem of using past income to determine what a debtor will pay in a future repayment plan.34 Ultimately, however, the court granted the trustee's motion to dismiss the Meades' case, finding that they had failed to rebut the statutory presumption.35 Thus, Meade neither supports Miller's assertion that income must be both received and earned in the look-back period, nor does it hold that the term "derived" means "earned."

Although the statute is unambiguous, its legislative history and underlying public policy also support our interpretation of the statute. As several courts have already noted, the word "derived" was never used in the legislative history of § 101(10A), and very little was said about the statute at all.36 One of only two nearly identical legislative statements regarding CMI is found in a section-by-section discussion of BAPCPA's 2005 overhaul of the Bankruptcy Code:

And as the Burrell court noted, "[t]he legislative history only makes reference to when income is received; nowhere is reference made to when the income is earned. The phrase `derived during' is completely absent."38 The legislative history thus supports a reading of the terms at issue here as merely synonymous.

Finally, the doctrine that we should be guided by the underlying public policy of the statute reinforces our interpretation of CMI as requiring inclusion of all income received by a debtor during the look-back period. As a general matter, remedial legislation should be construed in a way that effectuates its remedial purpose:

This Court is well aware of the remedial concerns BAPCPA was intended to address, and Miller is precisely the type of debtor who the drafters sought to screen from use of Chapter 7—higher income debtors who have the ability to repay a portion of their unsecured debt, yet seek to instead have that debt discharged.40

Miller receives bi-weekly salary payments, a very common employer payment method. Employees who are paid bi-weekly receive 13 paychecks in any six-month period. However, Miller's interpretation of CMI would reduce that number to 12, thereby reducing the look-back period income of all bi-weekly paid debtors by nearly 8%, since one of those payments will have been earned before the period and paid during it, while another will be earned during the period and paid after it. Reading the statute to only include 12 bi-weekly payments would be inconsistent with its purpose, as it would not fairly capture an entire six-month's worth of income. It was not Congress's intent in enacting the BAPCPA "means test" to allow debtors to distort their actual income to avoid paying a fair share of their future income to their creditors.

Thus, even if we were to hold this statute ambiguous, an analysis of the legislative history, coupled with an appreciation of the statute's remedial purpose, would dictate the same conclusion.

V. CONCLUSION

Although both parties present persuasive arguments on this difficult issue of statutory interpretation, we conclude that the plain meaning of § 101(10A) is that the term "current monthly income" includes all income a debtor receives in the look-back period, regardless when it was earned. Even were we to conclude that the statute was ambiguous, imposition of an additional requirement—that the income also be earned during the look-back period—is supported neither by the statute's language nor by legislative history, and we would ultimately define the term in the same way. Therefore, we affirm the bankruptcy court's dismissal of Miller's Chapter 7 case, pursuant to § 707(b)(2).