Filed: Dec. 20, 2007
Latest Update: Mar. 02, 2020
Summary: By order of the Bankruptcy Appellate Panel, the precedential effect of this decision is limited to the case and parties pursuant to 6th Cir. BAP LBR 8013-1(b). See also 6th Cir. BAP LBR 8010-1(c)). File Name: 07b0017n.06 BANKRUPTCY APPELLATE PANEL OF THE SIXTH CIRCUIT In re: DIANN COLBERT ) ) Debtor. ) _ ) ) DIANN COLBERT, ) ) Appellant, ) No. 06-8046 ) v. ) ) RICHARD A. BAUMGART, ) ) Appellee. ) _ ) ) Appeal from the United States Bankruptcy Court for the Northern District of Ohio, Eastern Divi
Summary: By order of the Bankruptcy Appellate Panel, the precedential effect of this decision is limited to the case and parties pursuant to 6th Cir. BAP LBR 8013-1(b). See also 6th Cir. BAP LBR 8010-1(c)). File Name: 07b0017n.06 BANKRUPTCY APPELLATE PANEL OF THE SIXTH CIRCUIT In re: DIANN COLBERT ) ) Debtor. ) _ ) ) DIANN COLBERT, ) ) Appellant, ) No. 06-8046 ) v. ) ) RICHARD A. BAUMGART, ) ) Appellee. ) _ ) ) Appeal from the United States Bankruptcy Court for the Northern District of Ohio, Eastern Divis..
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By order of the Bankruptcy Appellate Panel, the precedential effect
of this decision is limited to the case and parties pursuant to 6th
Cir. BAP LBR 8013-1(b). See also 6th Cir. BAP LBR 8010-1(c)).
File Name: 07b0017n.06
BANKRUPTCY APPELLATE PANEL OF THE SIXTH CIRCUIT
In re: DIANN COLBERT )
)
Debtor. )
______________________________________ )
)
DIANN COLBERT, )
)
Appellant, ) No. 06-8046
)
v. )
)
RICHARD A. BAUMGART, )
)
Appellee. )
______________________________________ )
)
Appeal from the United States Bankruptcy Court
for the Northern District of Ohio, Eastern Division, at Cleveland.
No. 05-93234.
Argued: February 7, 2007
Decided and Filed: December 20, 2007
Before: LATTA, PARSONS, and SCOTT, Bankruptcy Appellate Panel Judges.
____________________
COUNSEL
ARGUED: Robert M. Stefancin, SCHOTTENSTEIN, ZOX & DUNN, Cleveland, Ohio, for
Appellant. Richard A. Baumgart, DETTELBACH, SICHERMAN & BAUMGART, Cleveland,
Ohio, for Appellee. ON BRIEF: Robert M. Stefancin, M. Collette Gibbons, Taylor M. Wesley,
SCHOTTENSTEIN, ZOX & DUNN, Cleveland, Ohio, for Appellant. Richard A. Baumgart, Lisa
A. Vardzel, DETTELBACH, SICHERMAN & BAUMGART, Cleveland, Ohio, for Appellee.
____________________
OPINION
____________________
JENNIE D. LATTA, Bankruptcy Appellate Panel Judge. Diann Colbert (“Debtor”) appeals
an order of the bankruptcy court sustaining the Trustee’s objection to the Debtor’s claimed
exemption of the Earned Income Tax Credit (“EITC”) as “personal earnings.”
I. ISSUE ON APPEAL
The issue raised by this appeal is whether the EITC is exempt under Ohio Revised Code
§ 2329.66(A)(13).
II. JURISDICTION AND STANDARD OF REVIEW
The Sixth Circuit Bankruptcy Appellate Panel has jurisdiction to decide this appeal. The
United States District Court for the Northern District of Ohio has authorized appeals to the
Bankruptcy Appellate Panel. A final order of a bankruptcy court may be appealed by right under 28
U.S.C. § 158(a)(1). An order is final if it “ends the litigation on the merits and leaves nothing for
the court to do but execute the judgment.” Midland Asphalt Corp. v. United States, 489 U.S. 794,
798,
109 S. Ct. 1484, 1497 (1989) (citations omitted). An order on an objection to a debtor’s claim
of exemption is a final order for purposes of appeal. Wicheff v. Baumgart (In re Wicheff),
215 B.R.
839, 840 (B.A.P. 6th Cir. 1998).
The Bankruptcy Appellate Panel reviews conclusions of law de novo. Caradon Doors &
Windows, Inc. v. Eagle-Picher Indus., Inc. (In re Eagle-Picher Indus., Inc.), 447 F.3d 461 (6th Cir.
2006); Meoli v. Citicorp Trust Bank (In re Oswalt),
444 F.3d 524 (6th Cir. 2006). A bankruptcy
court’s application or interpretation of state law is a conclusion of law. See Van Aken v. Van Aken
(In re Van Aken),
320 B.R. 620, 623 (B.A.P. 6th Cir. 2005). Interpretation of a state’s exemption
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statute involves a question of law and is reviewed de novo. Hamo v. Wilson (In re Hamo), 233 B.R.
718, 721 (B.A.P. 6th Cir. 1999).
De novo review requires the “appellate court [to determine] the law independently of the trial
court’s determination.” O’Brien v. Ravenswood Apartments, Ltd. (In re Ravenswood Apartments,
Ltd.), 338 B.R. 307, 310 (B.A.P. 6th Cir. 2006) (citing Treinish v. Norwest Bank Minn., N.A. (In re
Periandri),
266 B.R. 651, 653 (B.A.P. 6th Cir. 2001)). Essentially, the reviewing court decides the
issue as if it had not been heard before. Mktg. & Creative Solutions, Inc. v. Scripps Howard Broad.
Co. (In re Mktg. & Creative Solutions, Inc.),
338 B.R. 300, 302 (B.A.P. 6th Cir. 2006). No deference
is given to the trial court’s conclusions of law.
Id. at 302.
III. FACTS
The Debtor, Diann Colbert, is the single mother of two minor children. In 2005, Ms. Colbert
was employed as a home health care aide earning less than $7,000. Ms. Colbert had no other source
of income in that year and received no child support. She is the sole wage earner for her family. In
June of 2005, the Debtor’s car was repossessed when she was unable to make car payments. She
also was unable to pay delinquent utility and medical bills, and thus sought the assistance of the
Legal Aid Society of Cleveland. She was referred to counsel who assisted her in filing a voluntary
petition for relief under Chapter 7 of the Bankruptcy Code on October 14, 2005. Richard A
Baumgart was appointed Chapter 7 trustee (“Trustee”).
On January 24, 2006, Ms. Colbert filed her 2005 federal and state income tax returns,
providing copies to the Trustee. The federal tax return showed no tax withheld or due as the result
of the Debtor’s meager earnings, and was filed in order for Ms. Colbert to claim the Earned Income
Tax Credit. As the result of filing her state and federal returns, she received a state income tax
refund of $70 and an EITC in the amount of $2,750.
On May 17, 2006, the Trustee filed a motion seeking the turnover of a portion of the funds
received by Ms. Colbert, allocating the EITC into pre and post-petition portions. The Trustee
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indicated that the Debtor had failed to identify these funds as exempt property. Ms. Colbert
responded by filing an amendment to her Schedule C asserting that her EITC was exempt property
under Ohio Revised Code §§ 2329.66(A)(4)(a) (exempting tax refunds and wages up to $400),
2329.66(A)(11) (exempting a person’s “right to receive spousal support, child support, an allowance,
or other maintenance to the extent reasonably necessary for the support of the person or any of the
person’s dependents”), and 2329.66(A)(13) (exempting “personal earnings owed to a person for
services in an amount equal to the greater of [certain amounts]”). The Trustee conceded that a
certain portion of the EITC could be claimed as exempt pursuant to § 2329(A)(4)(a), but objected
that the EITC did not represent support for purposes of § 2329.66(A)(11) or personal earnings for
purposes of § 2329.66(A)(13). After conducting hearings, the bankruptcy court agreed, denying the
claims of exemption pursuant to §§ 2329.66(A)(11) and (A)(13), and ordered the Debtor to turn over
$1,432.80 to the Trustee. The Debtor filed a timely notice of appeal, but has abandoned her
argument pursuant to § 2329.66(A)(11). This appeal raises the sole issue of whether the EITC may
be exempted as “personal earnings owed to the person for services” pursuant to Ohio Revised Code
§ 2329.66(A)(13).
IV. DISCUSSION
As an initial matter, the Debtor’s claim of exemption enjoys a presumption of validity. The
burden rests with the Trustee to show that the Debtor’s claim of exemption is not justified.
Moreover, Ohio courts follow the general principle that exemption statutes should be liberally
construed in favor of the debtor wherever possible. Daugherty v. Cent. Trust Co., 504 N.E.2d 1100,
1104 (Ohio 1986); Dennis v. Smith,
180 N.E. 638, 640 (Ohio 1932). When two possible
interpretations of an exemption provision exist, the court should adopt the interpretation that is most
favorable to the debtor. In re Lewis,
327 B.R. 645, 648 (Bankr. S.D. Ohio 2005).
Ohio is an “opt out” state for purposes of the Bankruptcy Code. See 11 U.S.C. § 522(b)(1),
and Ohio Rev. Code Ann. § 2329.662. This means that an Ohio debtor may only claim property
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exempt from her bankruptcy estate pursuant to Ohio law. The Ohio Supreme Court has not decided
the issue raised in this appeal. Therefore, this Panel must attempt to predict what that court would
do if confronted with the same question. Baumgart v. Alam (In re Alam), 359 B.R. 142, 147 (B.A.P.
6th Cir. 2006).
Ohio Revised Code § 2329.66(A)(13) provides in pertinent part:
(A) Every person who is domiciled in this state may hold property
exempt from execution, garnishment, attachment or sale to satisfy a
judgment or order, as follows:
....
(13) Except as otherwise provided in sections 3119.80,
3119.81, 3121.01, 3121.03, and 3123.06 of the Revised Code,
personal earnings of the person owed to the person for
services in an amount equal to the greater of the following
amounts:
(a) If paid weekly, thirty times the current federal
minimum hourly wage; if paid biweekly, sixty times
the current federal minimum hourly wage . . . ;
(b) Seventy-five percent of the disposable earnings
owed to the person.
Ohio Rev. Code Ann. § 2329.66(A)(13). The Ohio courts have not defined “personal earnings” for
purposes of this section, but have done so with respect to a related statute concerning garnishments,
section 2716.01, where “personal earnings” is defined as “money or any other consideration or thing
of value, that is paid or due to a person in exchange for work, labor, or personal services provided
by the person to an employer.”
The Debtor argues that her EITC was incorrectly denominated or equated with a tax refund
by the bankruptcy court even though she paid no income taxes. The Debtor further argues that the
EITC is a wage supplement that is provided to low income wage earners to provide them an
incentive to work rather than receive public assistance. The Debtor argues that the EITC is precisely
the type of property that the Ohio legislature intended to shield from the reach of creditors in order
to provide persons a minimal standard of living.
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Similar arguments were made by the petitioner in a case decided by the United States
Supreme Court concerning the EITC. In Sorenson v. Sec’y of the Treasury, 475 U.S. 851,
106 S. Ct.
1600 (1986), the Court determined that the EITC might be intercepted for payment of delinquent
child support in the same manner as refunds of taxes.
Congress created the EITC in 1975, “to reduce the disincentive to work caused by the
imposition of Social Security taxes on earned income . . . to stimulate the economy by funneling
funds to persons likely to spend the money immediately and to provide relief for low-income
families hurt by rising food and energy prices.” Id. at 864 (citing S. Rep. No. 94-36, pp. 11, 33
(1975); H.R. Rep. No. 94-19, pp. 3-4, 39-31 (1975)). The EITC is a credit against federal income
tax otherwise owed calculated as a percentage of income up to a phase out amount. See 26 U.S.C.
§ 32(a)(1). Unlike other tax credits, however, “the EITC is ‘refundable,’ which means that ‘if the
amount of the credit exceeds the taxpayer’s Federal income tax liability, the excess is payable to the
taxpayer as a direct transfer payment.’” Jennifer E. Spreng, When “Welfare” Becomes “Work
Support”: Exempting Earned Income Tax Credit Payments in Consumer Bankruptcy, 78 Am.
Bankr. L.J. 279, 281 (2004) (quoting Staff of House Ways and Means Comm., 108th Cong.,
Background Material and Data on Programs Within the Jurisdiction of the Committee on Ways and
Means 13-36 (Comm. Print 2004)). Further, wage earners may elect to receive advance payments
of their credit with their regular paychecks. See 26 U.S.C. § 3507. For a person with two qualifying
children and annual earned income less than $8,890, such as the Debtor, the credit is equal to forty
percent of her earned income. See 26 U.S.C. § 32(b)(1) and (2). That is, the wages of these workers
are supplemented by forty percent. In the Debtor’s case, her gross income of $6,894 was
supplemented by an EITC in the amount of $2,750, bringing her annual income to $9,644. The EITC
thus represented roughly 29% of her annual income.
Congress and the courts have struggled with how to conceptualize the EITC. From the
perspective of the Internal Revenue Service, it is treated as a refund of tax. From the perspective of
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the overall public welfare system, it has come to replace previous direct public assistance benefits.
But from the perspective of qualified, working individuals, it functions as a wage supplement.
The Trustee argues that the EITC “is not a payment owed to the Debtor for services
performed and thus, is not exempt under [Ohio Rev. Code Ann. § 2329.66(A)(13)].” (Appellee Br.
4.) His primary argument relies upon the “plain meaning” of the statute – “the Debtor’s entitlement
to the Tax Refund was [not] the result of services performed by the Debtor.” (Appellee Br. 5.) The
Trustee further argues that the EITC is a tax refund and thus not personal earnings, as if it must be
one or the other. The outcome of this case does not turn on whether the EITC is a tax refund,
however.
Exemptions are to be liberally construed in favor of the debtor. The task of the Panel is to
determine whether the Ohio statute is capable of being read so as to include the EITC. The Debtor
is correct in saying that unless she had performed services for her employer, she would not have been
entitled to the EITC. This does not mean, however, that the EITC is personal earnings within the
meaning of the Ohio statute. Although it could be said that the Debtor became entitled to the EITC
as the result of services she performed for her employer, we cannot say that she earned the EITC.
A worker earns his wages by his labor, pursuant to a contract between the worker and his employer
by which the worker offers his services in exchange for his wages. In no sense can we say that the
EITC is given in exchange for labor. This reading is consistent with Ohio Revised Code § 2716.01,
which, as noted previously, defines “personal earnings” for purposes of garnishment as “money or
any other consideration or thing of value, that is paid or due to a person in exchange for work, labor,
or personal services provided by the person to an employer.” (Emphasis added). Moreover, this
reading is consistent with the language which follows the words “personal earnings” in Ohio Revised
Code § 2329.66(A)(13), “owed to the person for services.”
The Panel’s interpretation, along with that of the bankruptcy court, is supported by a decision
of the bankruptcy court in the Southern District of Ohio. See In re Minton, 348 B.R. 467, 472
(Bankr. S.D. Ohio 2006). It is also in line with decisions of the Tenth Circuit Bankruptcy Appellate
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Panel construing similar exemption provisions under Wyoming and Oklahoma law. See In re
Trudeau, 237 B.R. 803, 806 (B.A.P. 10th Cir. 1999) (panel concluding that EITC is not “earnings”
under Wyoming exemption statute); In re Dickerson,
227 B.R. 742, 746 (B.A.P. 10th Cir. 1998)
(panel concluding that EITC is not “earnings from personal services” under Oklahoma exemption
statute).
The Debtor argues that the EITC is a wage supplement and thus should be considered as
personal earnings for purposes of section 2329.66(A)(13). The Debtor makes a compelling argument
that the EITC should be exempt under the state’s exemption statutes because of the important public
function that it serves. The Debtor does not offer a compelling argument that the EITC is exempt
under present law, however. In this instance, the Debtor asks that the Panel treat the EITC as if it
were earnings. Unfortunately, this is a policy argument intended to bring a result that is reserved to
the legislature.
CONCLUSION
For the foregoing reasons, the Panel concludes that read in the light most favorable to the
Debtor, Ohio Revised Code § 2329.66(A)(13) is not capable of the reading urged by the Debtor. The
EITC is not exempt pursuant to that section because it does not constitute “personal earnings owed
to the person for services.” The decision of the bankruptcy court is AFFIRMED.
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