EDWARD J. COLEMAN, III, Bankruptcy Judge.
Before the Court is an objection to the debtor's claim of exemption in an annuity filed by Todd Boudreaux, the chapter 7 trustee ("Trustee"). Trustee's objection requires the Court to revisit the Supreme Court of Georgia's opinion in Silliman v. Cassell, 292 Ga. 464, 738 S.E.2d 606, 612 (2013). In Cassell, the Georgia Supreme Court answered certified questions from the United States Court of Appeals for the Eleventh Circuit regarding whether a certain single-premium fixed annuity was an "annuity" within the meaning of Georgia's exemption statute at O.C.G.A. § 44-13-100(a)(2)(E). The Cassell court held that the National Life Insurance Company annuity was such an annuity, and the court of appeals adopted this answer in Silliman v. Cassell (In re Cassell), 713 F.3d 81 (11th Cir.2013). In this case, the Court must apply the analysis and holding of the Georgia Supreme Court in its Cassell opinion to the Jackson National Life Insurance Company annuity at issue in this case ("Annuity"). This is a core proceeding pursuant to 28 U.S.C. § 157(b), and the Court has jurisdiction pursuant to 28 U.S.C. § 1334. In accordance with Rule 7052 of the Federal Rules of Bankruptcy Procedure, I make the following Findings of Fact and Conclusions of Law.
As originally filed, Debra R. Sheffield's ("Debtor") Schedule C stated that the Annuity was exempt pursuant to § 44-13-100(a)(2.1) of the Official Code of Georgia ("Georgia Code").
Trustee timely filed an objection to Debtor's now amended claim of exemptions on September 10, 2013 (Dckt. 60.) The Court held a status conference on
Debtor and Trustee stipulated to the following facts. On March 7, 2013, Debtor filed a chapter 7 bankruptcy petition in the Southern District of Georgia. (Joint Stipulation, dckt. 72, ¶ 1.) Trustee was the duly appointed chapter 7 trustee for Debtor's case. (Id., ¶ 2.) Trustee timely objected to Debtor's claim of exemptions. (Id., ¶ 3.)
Debtor was born on November 21, 1964 and was 48 years old when she filed her bankruptcy petition. (Id., ¶ 4.) Debtor is an employee of Colony Bank and has worked at that bank for twenty years. (Id., ¶ 5.)
On December 2, 2008, Debtor obtained a Jackson National Life Perspective L. Series Fixed and Varied Annuity ("Annuity," "Contract," or "Annuity Contract"). (Id., ¶ 6.) The Annuity was funded by making a single payment. Debtor accumulated the funds used for that payment by making deposits into a traditional Individual Retirement Account ("IRA") over a period of years while working for a previous employer. Debtor intended to "roll over" from the IRA the total value of that account ($9,728.72) to fund the purchase of the Annuity within a new, traditional IRA account. (Id., ¶ 7.) Debtor has not contributed any additional funds to the Annuity other than the funds previously held in the IRA. (Id., ¶ 8.) At the petition date, the Annuity had death proceeds and a cash value of about $16,779.66. (Id., ¶ 9.) Debtor is the sole owner of the Annuity. (Id., ¶ 10.) The Annuity was issued at the time Debtor was 44 years old. (Id., ¶ 11.) The Annuity includes the following terms:
(Id., ¶ 12.) When Debtor purchased the Annuity, she intended it to be a protected retirement account, specifically a traditional IRA. (Id., ¶ 13.)
In addition to the stipulated facts above, the Court makes these additional findings of fact based on the Contract itself. Presumably in response to a subpoena sent by Trustee (dckt. 45), Jackson National Life
According to the Contract, Debtor is both the "Owner" and "Annuitant." Owner is defined in part as "[t]he person or entity shown on the Contract Data Page who is entitled to exercise all rights and privileges under this Contract." (Dckt. 56-2, at 11.) Annuitant is defined in part as "[t]he natural person on whose life annuity payments for this Contract are based." (Dckt. 56-2, at 9.) Kim Sheffield, identified in the Contract as Debtor's spouse, is the "Beneficiary" under the Contract. (Dckt. 56-2, at 3.) Beneficiary is defined as "[t]he person(s) or entity(ies) designated to receive any Contract benefits upon the death of the Owner." (Dckt. 56-2, at 9.) Income Date is defined as "[t]he date on which annuity payments are to begin." (Dckt. 56-2, at 10.) According to the Joint Stipulation and the data pages of the Contract, the Income Date is December 2, 2054. (Dckt. 56-2, at 3; Dckt. 72, ¶ 12.) On that date, Debtor will be ninety years old. In addition to defining those terms, the Contract provides the following provisions relating to the terms "Annuitant," "Assignment," "Beneficiary," and "Income Date":
(Dckt. 56-2, at 13, 28.)
The Contract allows the Owner (or Beneficiary if applicable) to elect to receive a
(Dckt. 56-2, at 28.) The Contract's default option is a life annuity with 120 monthly payments guaranteed. (Id.)
In another section, the Contract provides its withdrawal provisions:
(Dckt. 56-2, at 19.) Certain withdrawals appear to be subject to a Withdrawal Charge and an Excess Interest Adjustment. (Dckt. 56-2, at 19.) According to the data pages of the Contract, the applicable Withdrawal Charge rate is 0% because over four years have passed since Debtor made her initial and only premium payment. (Dckt. 56-2, at 6.) Debtor may make withdrawals without penalty under the following circumstances: (1) if the withdrawal is not more than ten percent of the premiums that remain subject to withdrawal charges that have not been previously withdrawn less the excess of the contract value over remaining premiums (dckt. 56-2, at 20); (2) if the owner incurs a terminal illness (dckt. 56-2, at 20); (3) if the owner incurs a heart attack, stroke, coronary artery surgery, life-threatening cancer, renal failure, or Alzheimer's disease (dckt. 56-2, at 22); or (4) if the owner requires inpatient care at a nursing home or hospital for 90 days or longer (dckt. 56-2, at 23).
The Bankruptcy Code permits a debtor to exempt certain assets from the bankruptcy estate, including certain retirement accounts, to further the Code's fresh start policy. Wallace v. McFarland (In re McFarland), 500 B.R. 279, 283 (Bankr. S.D.Ga.2013) (Barrett, J.); see also Law v. Siegel, ___ U.S. ___, ___, 134 S.Ct. 1188, ___ L.Ed.2d ___ (2014). Trustee, as the objecting party, bears the burden to prove by a preponderance of the evidence that the claim of exemption in the Annuity is improper. Fed. R. Bankr.P. 4003(c); In re Mooney, 503 B.R. 916 917 (Bankr. M.D.Ga.2014); Silliman v. Cassell, 292 Ga. 464, 738 S.E.2d 606, 612, adopted by Silliman v. Cassell (In re Cassell), 713 F.3d 81 (11th Cir.2013).
Georgia "opted out" of the federal exemptions provided for in § 522(d) of the Bankruptcy Code. Therefore, Georgia debtors are only permitted to exempt property under state law or federal law other than Bankruptcy Code § 522(d). Georgia's bankruptcy specific exemptions are set forth in O.C.G.A. § 44-13-100.
Debtor's main argument is that the Annuity is exempt under O.C.G.A. § 44-13-100(a)(2).
In response to certified questions from the Eleventh Circuit Court of Appeals, the Supreme Court of Georgia recently articulated the elements of a claim of exemption in an annuity pursuant to O.C.G.A. § 44-13-100(a)(2):
Cassell, 738 S.E.2d at 609 (footnote omitted) (internal quotation marks omitted).
When interpreting a statute, its plain meaning controls unless its literal application will "produce a result demonstrably at odds" with legislative intent. United States v. Ron Pair Enters., Inc., 489 U.S. 235, 242, 109 S.Ct. 1026, 103 L.Ed.2d 290 (1989); see also Caraco Pharm. Labs., Ltd. v. Novo Nordisk A/S, ___ U.S. ___, 132 S.Ct. 1670, 1680, 182 L.Ed.2d 678 (2012). For purposes of O.C.G.A. § 44-13-100(a)(2)(E), "an annuity is an obligation to pay an amount at regular intervals for a certain or uncertain period of time." Cassell, 738 S.E.2d at 610. However, the Cassell court noted:
Id. A review of the caselaw reveals that "[c]ourts have limited the scope of the exemption to mean that a debtor's interest in an annuity may qualify for the exemption if it is intended to `provide income that substitutes for wages,' and if it is not a typical savings account." McFarland, 500 B.R. at 284 (quoting Rousey v. Jacoway, 544 U.S. 320, 331, 125 S.Ct. 1561, 161 L.Ed.2d 563 (2005)). Therefore, the "pertinent question is whether [the Annuity] provides income as a substitute for wages." Cassell, 738 S.E.2d at 610.
The Supreme Court of Georgia provided the following guidance for how to determine when income provides a substitute for wages:
Id. at 610-11 (citations omitted). Being mindful that Trustee bears the burden of proof in this case, the Court will now apply the factors considered by the United States Bankruptcy Appellate Panel for the Eighth Circuit in Andersen v. Ries (In re Andersen), 259 B.R. 687, 691-92 (8th Cir. BAP 2001), to the facts in this contested matter.
Overall, this factor weighs in favor of Trustee. The Contract defines "Income Date" as "[t]he date on which annuity payments are to begin." (Dckt. 56-2, at 10.) The Income Date of the Annuity is December 2, 2054. (Dckt. 56-2, at 3.) Debtor was born on November 21, 1964. (Dckt. 72, ¶ 4.) Focusing on the Contract's terms under Debtor's current elections, it appears that she will not receive any income from the Annuity until she is ninety years old. (See dckt. 56-2, at 3, 10). Debtor's choice to defer any and all payments under the Annuity until she is ninety years old shows that the Annuity was intended to be more like an investment and less like an exemptible contract to provide retirement funds. See McFarland, 500 B.R. at 285 (finding that the debtor made clear that he did not intend for an annuity to serve as a replacement for wages because he elected to defer payments the maximum number of years); cf. Cassell, 738 S.E.2d at 608 (finding that an annuity provided income as a substitute for wages where the annuity gave the debtor the immediate right to payments and the debtor testified that "she purchased the annuity to replace her income given her age at the time of purchase, 65, and to support her in her retirement").
This factor weighs slightly in Debtor's favor. On one hand, Debtor only made a single contribution to purchase and fund the Annuity, suggesting that the contributions to this annuity were not made over time. On the other hand, the funds used for that single contribution are directly traceable to contributions that Debtor made over time into a traditional IRA. Although not determinative, courts have considered it "significant" that the funds used to purchase an annuity came from employment-related retirement funds. See Cassell, 738 S.E.2d at 611 n. 4 ("For example, in In re Vickers, 408 B.R. 131, 140-42 (Bankr.E.D.Tenn.2009), the court considered significant the fact that the annuity for which an exemption was claimed was purchased with funds held within and obtained directly from a self-employed IRA fund; see also In re Kiceniuk, No. 12-17802(RTL), 2012 WL 4506597 (Bankr. D.N.J. Sept. 28, 2012) (annuity funded by the transfer of monies from the debtor's employment related 401 (k) to which she contributed regularly).").
Under the facts of this case, this factor is similar to the one above and, likewise, weighs slightly in favor of Debtor. This is because, although the actual purchase of the Annuity took place outside of the workplace, the funds used were directly traceable to contributions she made from earnings to fund a traditional IRA while working for a former employer. (See dckt. 72, ¶ 7.)
Overall, this factor weighs in Trustee's favor. Because no testimony was taken or relevant facts stipulated to, the Court will not opine about the return on investment of the Annuity Contract. Despite the availability of annuity-type options, Debtor currently retains the ability to wait until she is ninety years old to receive any payments, and at that time, she may elect to receive a lump-sum payment rather than annuity payments that take into account her life expectancy. For this reason, the Annuity appears to be much more like an investment rather than a contract to provide retirement benefits.
Of all of the factors considered, this factor weighs most heavily in favor of Trustee. The Court finds that this factor is also the most significant factor under consideration in light of the facts of this case. Debtor's control is readily apparent due to her discretion to change the timing and frequency of the annuity income and the beneficiary of death benefits. Debtor's control over the Annuity supports the finding that the Annuity does not serve as a wage substitute. See Goodman v. Bramlette (In re Bramlette), 333 B.R. 911, 921 (Bankr.N.D.Ga.2005) (holding that annuity was not exempt where the debtor retained discretion to withdraw from the corpus and to decide at later date to receive a fixed return on its investment); In re Michael, 339 B.R. 798, 805 (Bankr.N.D.Ga. 2005) (holding that annuity was not exempt where the debtor retained the authority to surrender, assign, or amend the annuity at any time and to exercise any right and receive any benefit under the contract).
This factor weighs heavily in favor of Debtor. Debtor obtained the Annuity on December 2, 2008 but did not file her bankruptcy petition until March 7, 2013.
After considering these factors, I conclude that the Annuity falls outside the scope of "annuity" for purposes of O.C.G.A. § 44-13-100(a)(2) because it does not provide income as a substitute for wages. In further support of my decision in this case, I note that the Annuity is analogous to the annuities that the bankruptcy courts analyzed and found nonexempt in Bramlette and McFarland. In Bramlette, the United States Bankruptcy Court for the Northern District of Georgia concluded that an annuity was not "an exempt `pension, annuity, or similar plan or contract' under O.C.G.A. § 44-13-100(a)(2) because it was not a contract to provide benefits in lieu of earnings after retirement or a plan created to fill or supplement a wage or salary void." Bramlette, 333 B.R. at 921. The Bramlette court found the following facts relevant to that determination:
Id. More importantly, I find that the post-Cassell case, McFarland, provides the greatest caselaw support for my conclusion that the Annuity falls outside the scope of retirement funds exemptible under O.C.G.A. § 44-13-100(a)(2). See McFarland, 500 B.R. at 285-86 (finding that an annuity did not fall within the scope of O.C.G.A. § 44-13-100(a)(2) where the annuity contract's terms were essentially identical to those of the Contract at issue in this case, including that certain early withdrawals were subject to charges). In that case, my colleague, Judge Barrett, explained that "the Georgia legislature weighted the fresh start concept against creditors' needs when it adopted the exemptions." Id. at 286 (internal quotation marks omitted). As a result, not every investment account is exempt in a bankruptcy case. The Annuity is among those chosen by the Georgia legislature to be nonexempt.
Because I find the Annuity does not qualify as an annuity for purposes of O.C.G.A. § 44-13-100(a)(2)(E), I decline to decide whether Debtor's right to receive payments under the annuity is on account of illness, disability, death, age, or length of service and whether the payments are reasonably necessary to support the Debtor and her dependents.
In her Amended Schedule C, Debtor also claims that the Annuity is exempt pursuant to O.C.G.A. § 18-4-22 and § 47-2-332. Trustee argues in his objection that Debtor cannot exempt the Annuity under O.C.G.A. § 18-4-22 because the Annuity was not established under section 408 or 408(A) of the Internal Revenue Code as required by that statute. Likewise, Trustee contends that Debtor cannot exempt the Annuity under O.C.G.A. § 47-2-332 because she is not a former employee of the State of Georgia and the account
Section 18-4-22 of the Georgia Code makes certain pension and retirement accounts exempt from garnishment. See In re McFarland, 481 B.R. 242, 254 (Bankr. S.D.Ga.2012) (Barrett, J.) ("Georgia Code sections exempt[] from garnishment `funds or benefits from a pension or retirement program as defined in 29 U.S.C. § 1002(2)(A) or funds or other benefits from an individual retirement account' but only `until paid or otherwise transferred to a member of such program.'" (quoting O.C.G.A. § 18-4-22(a))).The other statute cited by Debtor. O.C.G.A. § 47-2-332, relates to the "right to a pension, annuity, retirement allowance, return of contributions, the pension, annuity, or retirement allowance itself, any optional benefit, or any other right accrued or accruing to any person" under the Employees' Retirement System of Georgia. O.C.G.A. § 47-2-332(a).
Under the Bankruptcy Code, a Georgia-domiciled debtor is limited to the exemptions found in O.C.G.A. § 44-13-100. In re McFarland, 481 B.R. at 255; see also In re Joyner, 489 B.R. 292, 297 (Bankr.S.D.Ga.2012) (Davis, J.). The sole exception to that rule was identified in In re Fullwood, 446 B.R. 634 (Bankr. S.D.Ga.2010) (Davis, J.). In In re Fullwood, the bankruptcy court held that O.C.G.A. § 34-9-84 applied in bankruptcy cases and exempted the debtor's workers* compensation recovery' because (1) workers' compensation awards were protected long before the Georgia bankruptcy exemptions were created in 1980 and (2) O.C.G.A. § 44-13-100 does not address workers' compensation awards. See Roach v. Ryan (In re Ryan), No. 11-40712, 2012 WL 423854, at *1 (Bankr. S.D.Ga. Jan. 19, 2012) (Davis, J.). In contrast. O.C.G.A. § 44-13-100 specifically addresses what types of annuities and similar contracts are exempt in bankruptcy cases. Therefore. Debtor's attempt to exempt the Annuity under O.C.G.A. § 18-4-22 and § 47-2-332 must fail even if the Annuity met the requirements of those statutes (which appears not to be the case in any event).
For the foregoing reasons, Trustee's Objection to Debtor's Amended Claim of Exemptions (dckt. 60) is SUSTAINED.
