Rebecca B. Connelly, United States Bankruptcy Judge.
This case concerns "special circumstance" deductions under 11 U.S.C. § 707(b)(2)(B). The United States Trustee moves to dismiss this chapter 7 case as presumptively abusive according to 11 U.S.C. § 707(b)(2). As an alternative, the United States Trustee asserts that the debtors' ability to pay along with the totality of the circumstances render the issuance of a chapter 7 discharge to these debtors an abuse according to 11 U.S.C. § 707(b)(3)(B). For the reasons set forth below, the Court concludes that issuance of a chapter 7 discharge to Mr. and Mrs. Alther is presumptively abusive under Bankruptcy Code section 707(b)(2) and that Mr. and Mrs. Alther have not rebutted the presumption. They failed to prove special circumstances. Consequently, the Court grants the United States Trustee's motion. Because the Court concludes that the United States Trustee's motion should be granted under section 707(b)(2), the Court need not address the United States Trustee's alternate request to dismiss under section 707(b)(3)(B).
The facts are largely uncontested. Mr. and Mrs. Alther filed their voluntary chapter 7 petition on December 19, 2014, asserting that they are individual debtors whose debts are primarily consumer debts. Pet. at 1. The Althers owe the Internal Revenue Service a federal tax debt in the approximate amount of $41,000 for 2012 income taxes, partially arising from early distribution from a 401(k) plan. See Schedule E; Tr. at 36:14-20; 59:20-60:11. Mr. and Mrs. Alther learned of this tax liability in June 2014. Tr. at 59:20-60:11.
Mr. Alther is a bank executive, and Mrs. Alther is not employed. Schedule I; Tr. at 8:9-12. The couple have two children, ages 9 and 12. Schedule J. The debtors' annualized current monthly income is $182,154.48, as reported on line 13 of the Chapter 7 Statement of Current Monthly Income and Means-Test Calculation. The applicable median family income as of the petition date for a family of four in Virginia is $91,859. See Means Testing, Dep't of Justice, http://www.justice.gov/ust/ means-testing/means-testing-cases-filed-between-november-1-2014-and-march-31-2015-inclusive. According to their petition, the debtors' income is 198% of the applicable median and thus exceeds the median family income for a household of four in Virginia.
The debtors completed the Chapter 7 Statement of Current Monthly Income and Means-Test Calculation on Official Form 22A. On line 51 of that form, the debtors reported that their "60-month disposable income under § 707(b)(2)" is $53,239.80. Because this amount exceeds $12,475, the presumption of abuse arose and the debtors checked the appropriate box at the top of page one and on line 52.
On line 56, the debtors listed additional expense claims
The United States Trustee filed a statement that the case was presumed abusive on January 26, 2015, and subsequently filed the motion to dismiss on February 25, 2015. See 11 U.S.C. § 704(b). In her motion to dismiss, the United States Trustee challenges the debtors' deductions for voluntary 401(k) contributions, tax expenses, and contributions for the care of household or family members. Mot. to Dismiss ¶¶ 13-20. On the other hand, the United States Trustee notes that the debtors may be entitled to an increased amount of deduction on certain payments, including vehicle operation expenses and chapter 13 administrative expenses. Id. ¶¶ 11-12, 23. Based on her adjustments, the United States Trustee asserts that the
Mr. and Mrs. Alther argue that the presumption of abuse is rebutted if the Court considers deductions that would be permissible in a chapter 13 calculation. See Resp. to Mot. to Dismiss ¶ 29; Tr. at 111:11-112:13. Furthermore, the Althers argue that the case should not be dismissed as an abuse because, according to their calculations, if they filed chapter 13, the calculation of disposable income would be negative and they would not be required to pay any amount to non-priority, unsecured creditors under a chapter 13 plan. Tr. at 108:4-13; 112:14-22.
The Court held a hearing on July 20, 2015. At the hearing, Mr. Alther testified and provided to the Court a narrative of the debtors' financial history, provided details regarding his income and his expenses, and explained the nature of his debts. Tr. at 7:14-66:15. In addition, Mrs. Alther testified about her employment prospects. Tr. at 67:1-69:6. Finally, an employee with the United States Trustee's office testified regarding analysis of the debtors' bank statements and a description of the debtors' post-petition activity and conduct. Tr. at 69:11-90:1.
The United States Trustee asks this Court to grant her motion to dismiss the case for abuse because the presumption of abuse arises under Bankruptcy Code section 707(b)(2) and has not been sufficiently rebutted. See Tr. at 91:1-8 (arguing that the presumption has arisen and no special circumstances have been shown).
Mr. and Mrs. Alther are debtors in this Court. The Court has subject matter jurisdiction under 28 U.S.C. §§ 1334(a) and authority to hear the case under 28 U.S.C. § 157(a), with the delegation made to this Court by Order of Reference from the District Court entered on December 6, 1994, and Rule 3 of the Local Rules of the United States District Court for the Western District of Virginia. The question the Court must answer is whether a chapter 7 discharge issued to Mr. and Mrs. Alther would be an abuse of the Bankruptcy Code. This matter is a "core" bankruptcy proceeding under 28 U.S.C. § 157(b)(2)(A).
A chapter 7 discharge is presumptively abusive if debtors, whose income exceeds the applicable median family income, report that their disposable income, as calculated under the means test, exceeds certain statutory thresholds. 11 U.S.C. § 707(b)(2)(A)(i), (b)(6); see Williams v. McDow (In re Williams), Civ. No. 5:10CV00049, 2010 WL 3292812, at *1 (W.D.Va. Aug. 19, 2010).
11 U.S.C. § 707(b)(1)-(2)(A)(i). The Code permits a debtor to rebut the presumption of abuse by demonstrating special circumstances:
Id. § 707(b)(2)(B)(i), (iv). To rebut the presumption of abuse, therefore, debtors must demonstrate not simply special circumstances but special circumstances which result in an adjustment to the current monthly income calculation so that, taking into account the special circumstances adjustment, the debtors' net income does not exceed the statutory thresholds which gave rise to the initial presumption of abuse.
The Bankruptcy Code does not provide a definition of "special circumstances." Section 707(b)(2) provides two examples: "a serious medical condition" and "a call or order to active duty in the Armed Forces." 11 U.S.C. § 707(b)(2)(B)(i). These examples "are instructive of the kinds of `special circumstances' that would justify deviations from Form B22C." In re Hanks, 362 B.R. 494, 502 (Bankr.D.Utah 2007). Not surprisingly, each is unusual and exceptional, as the word "special" connotes. One court observed of the statutory examples, "the similarity in nature of the two examples is that they are life circumstances that directly and unavoidably affect one's earning capacity or give rise to necessary, additional expenses." In re Smith, 388 B.R. 885, 888 (Bankr.C.D.Ill. 2008); see also In re Burdett, No. 12-12066-BFK, 2013 WL 865575, at *3-5 (Bankr.E.D.Va. Mar. 7, 2013) ("Including the two special circumstances examples, however, signals an intent that the circumstances be of a more severe nature than ordinary job changes or income fluctuations.").
This Court concludes that to rebut the presumption of abuse under section 707(b)(2), a debtor must demonstrate "special circumstances" which, as the name implies, are "special." The circumstances must be unusual, yet necessary.
Mr. and Mrs. Alter are individuals whose debts are primarily consumer debts and whose current monthly income less the applicable deductions multiplied by 60 exceeds $12,475. The presumption of abuse thus arises. The debtors admit by their own calculations that this presumption of abuse arises. The debtors insist that the presumption is rebutted by special circumstances. These special circumstances are expenses that according to the debtors would be appropriate deductions in a chapter 13 case. Hence, the debtors argue, they should not be forbidden from claiming these deductions simply because they are proceeding under chapter 7. What is more, the debtors point out their disposable income in chapter 13 would be negative. It would seem to be pointless to deny the debtors a chapter 7 discharge without repayment of their unsecured debt, when they could receive a chapter 13 discharge without repayment of their unsecured debt. This Court disagrees.
Although the Court is satisfied that there is a presumption of abuse in this case, it is necessary initially to determine the appropriate current monthly income amount that should have been reported on line 50 of Official Form 22A before the Court can determine whether the presumption has been rebutted. For this purpose, based on the arguments made by the parties both at hearing and on the record, the Court will adjust certain amounts claimed as deductions from the current monthly income of the debtors. The Court will start with the monthly disposable income as reported by the debtors on line 50 of $887.33.
The United States Trustee asserts that the 401(k) loan repayment to Prudential Retirement is voluntary and unsecured and thus that the $351.52 monthly deduction should be added back to the debtors' income. See Mot. to Dismiss ¶¶ 18-21. The debtors deny that the debt is unsecured because Prudential Retirement considers the loan from the retirement account to be a secured debt. Resp. to Mot. to Dismiss ¶ 7.
A debtor may deduct from current monthly income "monthly payments on account of secured debts." See 11 U.S.C. § 707(b)(2)(A)(iii). Under the Bankruptcy Code, a 401(k) loan is not a secured debt; 401(k) loan payments are not "secured debt monthly payments" dealt with under section 707(b)(2). See, e.g., Egebjerg v. Anderson (In re Egebjerg), 574 F.3d 1045, 1049 (9th Cir.2009) ("We join the vast majority of courts in holding that the debtor's obligation to repay a loan from his or her
The Court therefore will remove the monthly payment on the 401(k) loan, thus increasing the monthly disposable income on line 50 by $351.52 to $1,238.85.
Based on the numbers the debtors provided adjusted to exclude the deduction for the 401(k) loan repayment, the Court finds that the monthly disposable income under section 707(b)(2) that should have been reported on line 50 is $1,238.85. When that figure is multiplied by sixty, the product is $74,331 which exceeds the statutory threshold of $12,475. The presumption of abuse thus still remains and the debtors must demonstrate special circumstances to rebut this presumption.
Because there is a presumption of abuse, the debtors must demonstrate special circumstances that result in an adjusted disposable income that when multiplied by sixty produces a figure less than $12,475. See 11 U.S.C. § 707(b)(2)(B)(i), (iv). Stated otherwise, the debtors must show special circumstances that result in an adjusted monthly disposable income of less than $207.92. See id. ($12,475 ÷ 60 $207.92). The debtors have listed what they believe to be such special circumstances on line 56, including a "clunker" expense, 401(k) contributions, and an income reduction due to loss of health savings account reimbursement.
The debtors list on line 56 a monthly amount of $200 for a "clunker" expense. In the United States Trustee's motion to dismiss, she asserts that the debtors may be entitled to deduct $688 on line 22A, which is $200 more than the $488 that the debtors claimed on 22A. Mot. to Dismiss ¶¶ 11-12. The debtors admit this. Resp. to Mot. to Dismiss ¶ 2. It appears that this $200 entitlement is for the "clunker" expense. Because the parties agree and neither party has requested a ruling from the Court on this expense, the Court need not address its suitability. Furthermore, allowing this deduction without allowing the debtor's other special circumstance deductions will not render the monthly disposable income less than $207.92.
The debtors list monthly payments of $986.56 for 401(k) contributions in the
Voluntary 401(k) contributions are not special circumstances for the purpose of section 707(b)(2), because they are not unusual and there is a reasonable alternative of not making the voluntary contributions. See In re Mravik, 399 B.R. 202, 206 (Bankr.E.D.Wis.2008) ("In this case, arguably the Debtor has a reasonable alternative in that she could stop or reduce the contributions to her retirement plan."). Whether the debtor may claim an expense deduction in a chapter 13 case does not alter the conclusion that 401(k) contributions do not qualify as special circumstances under section 707(b)(2). As such, the Court will not adjust the debtors' current monthly income by the voluntary 401(k) contributions.
On the continuation sheet for line 56, the debtors assert an "Income reduction effective 01/01/15 — loss of HSA reim..." in the amount of $504.58. The United States Trustee asserts that Mr. Alther's pay advices for January, 15, 2015, January 30, 2015, and February 15, 2015, reflect that he received a small pay raise in 2015 and fail to reflect any alleged $504.58 loss of income or loss of HSA reimbursement. Mot. to Dismiss ¶ 32. The debtors admit these assertions and note that the adjustments were based on information and expectations available to Mr. Alther at the time the debtors filed their chapter 7 petition. Resp. to Mot. to Dismiss ¶ 12. Because the parties agree that this is not based on fact, the Court will not adjust the monthly income based on the alleged income reduction. See 11 U.S.C. 727(b)(2)(B)(ii) (requiring the debtor to provide documentation and explanation of the asserted adjustment to income).
On the continuation sheet for line 56, the debtors assert their monthly payments for disability insurance will increase by $51.73, health insurance by $250.70, and life insurance premium by $45.94, all effective January 1, 2015. The debtors also list a $212.08 increase in their monthly payments to their health savings account. Even if the Court determined that these deductions were permissible as special circumstances, the current monthly income when multiplied by sixty would still exceed the statutory threshold;
The debtors argue that the Court should consider the dividend that would be paid to unsecured creditors in a chapter 13 case as a special circumstance to rebut the presumption of abuse. Tr. at 108:4-13; 112:14-22. In support of this argument, the debtors cited at hearing In re Koonts, an unpublished opinion issued by Judge Anderson, now retired, of this Court. In Koonts, Judge Anderson stated that "[t]his Court has generally held that a debtor must demonstrate the ability to pay unsecured creditors 20% before a chapter 13 plan could be confirmed." In re Koonts, No. 08-61880, slip op. at 9 (Bankr.W.D.Va. Jan. 12, 2010). He continued that "[i]t is consistent to require, and this court has held, that it is not abuse under Section 707(b)(3) if a debtor cannot pay his or her unsecured creditors a 20% dividend." Id.
This Court holds that the dividend in chapter 13 is not a special circumstance or grounds to rebut the presumption of abuse under section 707(b)(2). Not only does the debtors' argument fail statutorily but also under the narrowed grounds of the holding in Koonts.
The Court in Koonts limited its holding by explicitly stating its conclusion applied to abuse under section 707(b)(3); that is, the Koonts court concluded that the amount of an unsecured dividend was relevant to whether the totality of the circumstances of the debtor's financial situation demonstrated abuse.
Section 707(b)(2)(B)(iv) requires that the presumption of abuse be rebutted by circumstances which lead to an adjustment in the current monthly income that when multiplied by sixty would produce a figure below the statutory threshold. The potential dividend to unsecured creditors to be paid pursuant to a chapter 13 plan has no effect on the amount of a debtor's current monthly income. Under a plain reading of section 707(b)(2)(B)(iv), therefore, a potential dividend is unable to serve as a circumstance to rebut the presumption of abuse. See In re Smith, 388 B.R. 885, 888 (Bankr.C.D.Ill.2008) (lack of a meaningful payback in chapter 13 is not a defense to dismissal); In re Johns, 342 B.R. 626, 629 (Bankr.E.D.Okla.2006) (the potential payback of zero percent dividend in chapter 13 is not a special circumstance to rebut the presumption of abuse); In re Castle, 362 B.R. 846, 852 (Bankr.N.D.Ohio 2006) (debtors' inability to fund chapter 13 plan is not an exception to the means test).
The United States Trustee moves to dismiss under section 707(b)(2). The Court declines to apply a defense which may be relevant under section 707(b)(3) as a defense to a motion to dismiss under the separate distinct Bankruptcy Code section 707(b)(2).
In this case, the debtors filed a Chapter 7 Statement of Current Monthly Income and Means-Test Calculation demonstrating the presumption of abuse arises under section 707(b)(2). The debtors alleged several purported special circumstances to adjust
Section 707(b)(1), however, accords a bankruptcy court the discretion to either dismiss the case or, if a debtor consents, to convert the case to one under chapter 11 or 13 of the Bankruptcy Code. The discretion under section 707(b)(1) is limited to ordering dismissal or permitting conversion. 11 U.S.C. § 707(b)(1); In re Maura, 491 B.R. 493, 516-18 (Bankr.E.D.Mich. 2013); Justice v. Advanced Control Sols., Inc., Civ. No. 07-5231, 2008 WL 4368668, at *5 (W.D.Ark. Sept. 22, 2008).
The Court will contemporaneously issue an order consistent with the findings and ruling of this opinion.
