Central District Consumer Bankruptcy Attorney's Association

Watch the use of "then" versus "than", it is equally important as hyphenation.
Law Office of Peter M. Lively * Personal Financial Law Center I
11268 Washington Boulevard, Suite 203, Culver City, California 90230-4647
Telephone: (310) 391-2400* Toll Free: (800) 307-3328 * Fax: (310) 391-2462
On Thursday, March 13, 2014 8:00 AM, John Faucher wrote:
A short update to the statute of limitations - California has 20 years to collect past-due income tax. (I believe the hyphen is correct, as "past-due" is a compound adjective.) https://www.ftb.ca.gov/professionals/ta ... e_12.shtml
I am unfamiliar with the verb "to due" ("So what can the IRS due[?]"); does it mean "act on a debt that is due?"
- John D. Faucher
818/889-8080
________________________________
To: "cdcbaa@yahoogroups.com"
Sent: Wednesday, March 12, 2014 7:53 PM
Subject: Re: [cdcbaa] 9th Circuit tax case - pension can be levied upon post-discharge
Ok, these liens are fairly common. Prior to 1996, they were a much larger problem then they are now. The Federal Government put a statute of limitations on tax collections in 1996. The states, mostly have no such statute of limitations. California has no statute of limitations for collecting state taxes.
Federal Taxes can only be collected for 10 years. When the IRS puts a levy on a pension, if the debtor is young, no problem, wait 10 years and it will be gone. If the debtor is older, then there can be a problem, but mostly we just tell people not to take funds from the pension for the 10 year period. Recall, that the debtor took the Patterson v. Schumate claim. That is a claim that the pension cannot be levied by creditors. So what can the IRS due, it can collect what comes out of the pension as the funds are disbursed to the debtor from the corpus remains protected by the antialienation provision (no hyphen after the prefix "anti")
d
Dennis McGoldrick, 350 S. Crenshaw Bl., #A207B, Torrance, Ca 90503 310-328-1001-voice
On Mar 11, 2014, at 8:58 AM, wrote:
>
>The 9th Circuit ruled that IRS could levy after discharge on a pension that was excluded under Patterson v. Shumate in the Debtor's bankruptcy schedules, rather than exempted. See attached.
>
>
>Stella Havkin

The post was migrated from Yahoo.

A short update to the statute of limitations - California has 20 years to collect past-due income tax. (I believe the hyphen is correct, as "past-due" is a compound adjective.) https://www.ftb.ca.gov/professionals/ta ... e_12.shtml
I am unfamiliar with the verb "to due" ("So what can the IRS due[?]"); does it mean "act on a debt that is due?"
- John D. Faucher
818/889-8080
________________________________
To: "cdcbaa@yahoogroups.com"
Sent: Wednesday, March 12, 2014 7:53 PM
Subject: Re: [cdcbaa] 9th Circuit tax case - pension can be levied upon post-discharge
Ok, these liens are fairly common. Prior to 1996, they were a much larger problem then they are now. The Federal Government put a statute of limitations on tax collections in 1996. The states, mostly have no such statute of limitations. California has no statute of limitations for collecting state taxes.
Federal Taxes can only be collected for 10 years. When the IRS puts a levy on a pension, if the debtor is young, no problem, wait 10 years and it will be gone. If the debtor is older, then there can be a problem, but mostly we just tell people not to take funds from the pension for the 10 year period. Recall, that the debtor took the Patterson v. Schumate claim. That is a claim that the pension cannot be levied by creditors. So what can the IRS due, it can collect what comes out of the pension as the funds are disbursed to the debtor from the corpus remains protected by the antialienation provision (no hyphen after the prefix "anti")
d
Dennis McGoldrick, 350 S. Crenshaw Bl., #A207B, Torrance, Ca 90503 310-328-1001-voice
On Mar 11, 2014, at 8:58 AM, wrote:
>
>The 9th Circuit ruled that IRS could levy after discharge on a pension that was excluded under Patterson v. Shumate in the Debtor's bankruptcy schedules, rather than exempted. See attached.
>
>
>Stella Havkin

The post was migrated from Yahoo.

Pat,
I've always considered the language "except that such amount under this subparagraph shall not constitute disposable income, as defined in section 1325(b)(2)" to mean that 541(b)(7) is referring only to funds being withheld (or received) by the employer after the petition date, while the plan is pending and 1306 is effective. This interpretation makes the addition of25.
I'm going to take the safeposition and assumeincluding pensions on Schedule B and exempting them on Schedule C is an election that the debtor can make, because 541(c)(4) was not changed by BAPCPA and that is the section interpreted by the Supreme Court in Patterson v. Shumate.
Some Chapter 13 bankruptcy trustees are now taking the position thatNO 401k contributions areallowed during the plan duration. I think 541(b)(7)'sdeliberate exclusions of 401k contributionsis where they find their authority for that position.
Considering that 401k contributions can be set very high voluntarily by employees and that self-employed debtors can establish a "Simple 401k" and deduct for their own contributions andalso their matching contributionsetirement contributions from 541(b)(7).
Law Office of Peter M. Lively * Personal Financial Law Center I
11268 Washington Boulevard, Suite 203, Culver City, California 90230-4647
Telephone: (310) 391-2400* Toll Free: (800) 307-3328 * Fax: (310) 391-2462
On Wednesday, March 12, 2014 2:23 PM, Patrick T. Green wrote:
Peter:
I think any amount withheld by an employer covers past contributions as well as those going forward. Additionally, a plain meaning reading is that this language does not cover employer matching contributions to a 401k. So you could have a 401k that is partially property of the estate and partially not property of the estate. The 522(b)(3)(C) exemption would cover the employer contribution portion and the employee contributions portion would not be property of the estate under 541(c)(7).
I doubt that the drafters meant that or even knew that it was what their amendment said, but it is what we have to work with.
If you have any questions or concerns, please contact me.
Pat
Patrick T. Green
Attorney at Law
Fitzgerald & Green
1010 E. Union St. Ste. 206
Pasadena, CA 91106
Tel: 626-449-8433
Fax: 626-449-0565
pat@fitzgreenlaw.com
From:cdcbaa@yahoogroups.com [mailto:cdcbaa@yahoogroups.com] On Behalf Of Peter M. Lively
Sent: Wednesday, March 12, 2014 1:17 PM
To: cdcbaa@yahoogroups.com
Subject: Re: [cdcbaa] 9th Circuit tax case - pension can be levied upon post-discharge [2 Attachments]
Pat,
I think 541(b)(7) refers tocontributions beingmadeto those plans from debtor's incomebeingconsidered disposable income as opposed to the corpus of the plan existing on the petition date.
Law Office of Peter M. Lively * Personal Financial Law Center I
11268 Washington Boulevard, Suite 203, Culver City, California 90230-4647
Telephone: (310) 391-2400* Toll Free: (800) 307-3328 * Fax: (310) 391-2462
On Wednesday, March 12, 2014 12:58 PM, Patrick T. Green wrote:
Peter, et al.:
Note that the case was a pre BAPCPA case and although decided recently, it is in some respects inapplicable to current cases. BAPCPA seemingly mooted the issue of permissive exclusion found in Patterson. 541(b)(7), added by BAPCPA, excludes IRAs and ERISA plans from the estate. Of course BAPCPA, being the poorly drafted law that it is, also exempted those excluded plans in 522(b)(3)(C). So we have a statute that exempts and excludes, thus a ruckus is created.
So we are left with this question: Does the right to exempt an asset that is specifically excluded from the estate make inclusion permissible still?
Of course, tax liens still work their magic for the IRS.
I do not understand why the issue of state law was raised.
If you have any questions or concerns, please contact me.
Pat
Patrick T. Green
Attorney at Law
Fitzgerald & Green
1010 E. Union St. Ste. 206
Pasadena, CA 91106
Tel: 626-449-8433
Fax: 626-449-0565
pat@fitzgreenlaw.com
From:cdcbaa@yahoogroups.com [mailto:cdcbaa@yahoogroups.com] On Behalf Of Peter M. Lively
Sent: Tuesday, March 11, 2014 6:21 PM
To: cdcbaa@yahoogroups.com
Subject: Re: [cdcbaa] 9th Circuit tax case - pension can be levied upon post-discharge
This isn't something new. SeeVance L. Wadleigh v. Commissioner, U.S. Tax Court, CCH Dec. 58,243, 134 T.C. No. 14, (Jun. 15, 2010) (holding that6321 tax liens continue in effect against taxpayer's pension excluded from his chapter 7 bankruptcy estate).
According to Patterson v. Shumate (S Ct 1992) excluding an ERISA qualified pension plan is permissive under 541(c)(2).
By including the pensionin bankruptcy and exempting, the exempt property passes from the estateto the debtor free and clear of the unrecorded tax lien pursuant to 522(c)(2)(B).
The exemption expressly refers totax liens and doesn't work if the lienwas a properly recorded (properly filed) notice oftax lien.perly filed.
Law Office of Peter M. Lively * Personal Financial Law Center I
11268 Washington Boulevard, Suite 203, Culver City, California 90230-4647
Telephone: (310) 391-2400* Toll Free: (800) 307-3328 * Fax: (310) 391-2462
On Tuesday, March 11, 2014 3:20 PM, Stella Havkin wrote:
I am just asking. I have not seen it but I believe you.
From:cdcbaa@yahoogroups.com [mailto:cdcbaa@yahoogroups.com] On Behalf Of Steven B. Lever
Sent: Tuesday, March 11, 2014 3:02 PM
To: cdcbaa@yahoogroups.com
Subject: RE: [cdcbaa] 9th Circuit tax case - pension can be levied upon post-discharge
All along. Ive seen it happen. Ask Neil Kakuske (sp?) at the IRS if you doubt it.
Steven B. Lever
From:cdcbaa@yahoogroups.com [mailto:cdcbaa@yahoogroups.com] On Behalf Of Havkin Stella
Sent: Tuesday, March 11, 2014 3:10 PM
To: cdcbaa@yahoogroups.com
Subject: Re: [cdcbaa] 9th Circuit tax case - pension can be levied upon post-discharge
Has the IRS been doing it all along or is this a new tactic ?
>Sent: Mar 11, 2014 2:58 PM
>To: cdcbaa@yahoogroups.com
>Subject: Re: [cdcbaa] 9th Circuit tax case - pension can be levied upon post-discharge
>
>That was my point. The exemption is irrelevant as to the IRS. The lien
>would allow the IRS to go after the pension regardless of whether the
>pension is an asset of the estate or not.
>
>Mark T. Jessee
>Law Offices of Mark T. Jessee
>"A Debt Relief Agency"
>50 W. Hillcrest Drive, Suite 200
>Thousand Oaks, CA 91360
>(805) 497-5868 (805) 497-5864 (Facsimile)
>
>
>
>In a message dated 3/11/2014 2:46:50 P.M. Pacific Daylight Time,
>sblever@leverlaw.com writes:
>
>
>
>
>
>The IRS as a United States agency does not have to give credence to state>law exemptions. IRS can always go after IRAs and pensions for
>nondischargeable debts or enforcement of tax liens.
>Steven B. Lever
>
>
>jesseelaw@aol.com
>Sent: Tuesday, March 11, 2014 11:35 AM
>To: cdcbaa@yahoogroups.com
>Subject: Re: [cdcbaa] 9th Circuit tax case - pension can be levied upon
>post-discharge
>
>
>
>
>
>Yes, but even if unambiguously exempted would not the net result be the
>same as the IRS holds a statutory lien? If the pension was part of the
>Chapter 7 estate, the exemption on Schedule C would not apply to the IRS
>statutory lien. If the pension is subject to IRS levy and it was affirmatively
>included by the debtor (assuming the debtor can elect to make it so) as an>asset of the bankruptcy estate would that waive the ERISA protection as to>the Chapter 7 Trustee to administer it as an asset? Regardless, if the
>pension was not administered in the bankruptcy estate, the lien would still
>ride through the bankruptcy and the IRS could still pursue the lien.
>
>
>
>Mark T. Jessee
>Law Offices of Mark T. Jessee
>"A Debt Relief Agency"
>50 W. Hillcrest Drive, Suite 200
>Thousand Oaks, CA 91360
>(805) 497-5868 (805) 497-5864 (Facsimile)
>
>
>
>
>In a message dated 3/11/2014 9:54:09 A.M. Pacific Daylight Time,
>_havkinlaw@earthlink.net_ (mailto:havkinlaw@earthlink.net) writes:
>
>
>
>It sounds like the 9th circuit thought that might have worked.
>
>
>_[mailto:cdcbaa@yahoogroups.com]_ (mailto:[mailto:cdcbaa@yahoogroups.com]) On Behalf
>Of Kirk Brennan
>Sent: Tuesday, March 11, 2014 9:44 AM
>To: Cdcbaa Yahoo Listserv
>Subject: Re: [cdcbaa] 9th Circuit tax case - pension can be levied upon
>post-discharge
>
>
>
>
>Do you think the result would have been different if the pension had been>unequi vocally exempted on the Schedule C?
>
>On Mar 11, 2014 8:58 AM, (mailto:havkinlaw@earthlink.net) > wrote:
>
>
>
>
>[_Attachment(s)_ (mip://0cac8ba0/default.html#144b1ddfa6d023d3_TopText)
>from _havkinlaw@earthlink.net_ (mailto:havkinlaw@earthlink.net) included
>below]
>
>The 9th Circuit ruled that IRS could levy after discharge on a pension
>that was excluded under Patterson v. Shumate in the Debtor's bankruptcy
>schedules, rather than exempted. See attached.
>Stella Havkin
>
>
>
>
>
>
>
>
>
>
>
>
>
>
>
>
>
>
>
>
>
>

The post was migrated from Yahoo.

Pat,
I think 541(b)(7) refers tocontributions beingmadeto those plans from debtor's incomebeingconsidered disposable income as opposed to the corpus of the plan existing on the petition date.
Law Office of Peter M. Lively * Personal Financial Law Center I
11268 Washington Boulevard, Suite 203, Culver City, California 90230-4647
Telephone: (310) 391-2400* Toll Free: (800) 307-3328 * Fax: (310) 391-2462
On Wednesday, March 12, 2014 12:58 PM, Patrick T. Green wrote:
Peter, et al.:
Note that the case was a pre BAPCPA case and although decided recently, it is in some respects inapplicable to current cases. BAPCPA seemingly mooted the issue of permissive exclusion found in Patterson. 541(b)(7), added by BAPCPA, excludes IRAs and ERISA plans from the estate. Of course BAPCPA, being the poorly drafted law that it is, also exempted those excluded plans in 522(b)(3)(C). So we have a statute that exempts and excludes, thus a ruckus is created.
So we are left with this question: Does the right to exempt an asset that is specifically excluded from the estate make inclusion permissible still?
Of course, tax liens still work their magic for the IRS.
I do not understand why the issue of state law was raised.
If you have any questions or concerns, please contact me.
Pat
Patrick T. Green
Attorney at Law
Fitzgerald & Green
1010 E. Union St. Ste. 206
Pasadena, CA 91106
Tel: 626-449-8433
Fax: 626-449-0565
pat@fitzgreenlaw.com
From:cdcbaa@yahoogroups.com [mailto:cdcbaa@yahoogroups.com] On Behalf Of Peter M. Lively
Sent: Tuesday, March 11, 2014 6:21 PM
To: cdcbaa@yahoogroups.com
Subject: Re: [cdcbaa] 9th Circuit tax case - pension can be levied upon post-discharge
This isn't something new. SeeVance L. Wadleigh v. Commissioner, U.S. Tax Court, CCH Dec. 58,243, 134 T.C. No. 14, (Jun. 15, 2010) (holding that6321 tax liens continue in effect against taxpayer's pension excluded from his chapter 7 bankruptcy estate).
According to Patterson v. Shumate (S Ct 1992) excluding an ERISA qualified pension plan is permissive under 541(c)(2).
By including the pensionin bankruptcy and exempting, the exempt property passes from the estateto the debtor free and clear of the unrecorded tax lien pursuant to 522(c)(2)(B).
The exemption expressly refers totax liens and doesn't work if the lienwas a properly recorded (properly filed) notice oftax lien.perly filed.
Law Office of Peter M. Lively * Personal Financial Law Center I
11268 Washington Boulevard, Suite 203, Culver City, California 90230-4647
Telephone: (310) 391-2400* Toll Free: (800) 307-3328 * Fax: (310) 391-2462
On Tuesday, March 11, 2014 3:20 PM, Stella Havkin wrote:
I am just asking. I have not seen it but I believe you.
From:cdcbaa@yahoogroups.com [mailto:cdcbaa@yahoogroups.com] On Behalf Of Steven B. Lever
Sent: Tuesday, March 11, 2014 3:02 PM
To: cdcbaa@yahoogroups.com
Subject: RE: [cdcbaa] 9th Circuit tax case - pension can be levied upon post-discharge
All along. Ive seen it happen. Ask Neil Kakuske (sp?) at the IRS if you doubt it.
Steven B. Lever
From:cdcbaa@yahoogroups.com [mailto:cdcbaa@yahoogroups.com] On Behalf Of Havkin Stella
Sent: Tuesday, March 11, 2014 3:10 PM
To: cdcbaa@yahoogroups.com
Subject: Re: [cdcbaa] 9th Circuit tax case - pension can be levied upon post-discharge
Has the IRS been doing it all along or is this a new tactic ?
>Sent: Mar 11, 2014 2:58 PM
>To: cdcbaa@yahoogroups.com
>Subject: Re: [cdcbaa] 9th Circuit tax case - pension can be levied upon post-discharge
>
>That was my point. The exemption is irrelevant as to the IRS. The lien
>would allow the IRS to go after the pension regardless of whether the
>pension is an asset of the estate or not.
>
>Mark T. Jessee
>Law Offices of Mark T. Jessee
>"A Debt Relief Agency"
>50 W. Hillcrest Drive, Suite 200
>Thousand Oaks, CA 91360
>(805) 497-5868 (805) 497-5864 (Facsimile)
>
>
>
>In a message dated 3/11/2014 2:46:50 P.M. Pacific Daylight Time,
>sblever@leverlaw.com writes:
>
>
>
>
>
>The IRS as a United States agency does not have to give credence to state>law exemptions. IRS can always go after IRAs and pensions for
>nondischargeable debts or enforcement of tax liens.
>Steven B. Lever
>
>
>jesseelaw@aol.com
>Sent: Tuesday, March 11, 2014 11:35 AM
>To: cdcbaa@yahoogroups.com
>Subject: Re: [cdcbaa] 9th Circuit tax case - pension can be levied upon
>post-discharge
>
>
>
>
>
>Yes, but even if unambiguously exempted would not the net result be the
>same as the IRS holds a statutory lien? If the pension was part of the
>Chapter 7 estate, the exemption on Schedule C would not apply to the IRS
>statutory lien. If the pension is subject to IRS levy and it was affirmatively
>included by the debtor (assuming the debtor can elect to make it so) as an>asset of the bankruptcy estate would that waive the ERISA protection as to>the Chapter 7 Trustee to administer it as an asset? Regardless, if the
>pension was not administered in the bankruptcy estate, the lien would still
>ride through the bankruptcy and the IRS could still pursue the lien.
>
>
>
>Mark T. Jessee
>Law Offices of Mark T. Jessee
>"A Debt Relief Agency"
>50 W. Hillcrest Drive, Suite 200
>Thousand Oaks, CA 91360
>(805) 497-5868 (805) 497-5864 (Facsimile)
>
>
>
>
>In a message dated 3/11/2014 9:54:09 A.M. Pacific Daylight Time,
>_havkinlaw@earthlink.net_ (mailto:havkinlaw@earthlink.net) writes:
>
>
>
>It sounds like the 9th circuit thought that might have worked.
>
>
>_[mailto:cdcbaa@yahoogroups.com]_ (mailto:[mailto:cdcbaa@yahoogroups.com]) On Behalf
>Of Kirk Brennan
>Sent: Tuesday, March 11, 2014 9:44 AM
>To: Cdcbaa Yahoo Listserv
>Subject: Re: [cdcbaa] 9th Circuit tax case - pension can be levied upon
>post-discharge
>
>
>
>
>Do you think the result would have been different if the pension had been>unequi vocally exempted on the Schedule C?
>
>On Mar 11, 2014 8:58 AM, (mailto:havkinlaw@earthlink.net) > wrote:
>
>
>
>
>[_Attachment(s)_ (mip://0cac8ba0/default.html#144b1ddfa6d023d3_TopText)
>from _havkinlaw@earthlink.net_ (mailto:havkinlaw@earthlink.net) included
>below]
>
>The 9th Circuit ruled that IRS could levy after discharge on a pension
>that was excluded under Patterson v. Shumate in the Debtor's bankruptcy
>schedules, rather than exempted. See attached.
>Stella Havkin
>
>
>
>
>
>
>
>
>
>
>
>
>
>
>
>
>
>
>
>
>
>
>

The post was migrated from Yahoo.

This isn't something new. SeeVance L. Wadleigh v. Commissioner, U.S. Tax Court, CCH Dec. 58,243, 134 T.C. No. 14, (Jun. 15, 2010) (holding that6321 tax liens continue in effect against taxpayer's pension excluded from his chapter 7 bankruptcy estate).
According to Patterson v. Shumate (S Ct 1992) excluding an ERISA qualified pension plan is permissive under 541(c)(2).
By including the pensionin bankruptcy and exempting, the exempt property passes from the estateto the debtor free and clear of the unrecorded tax lien pursuant to 522(c)(2)(B).
The exemption expressly refers totax liens and doesn't work if the lienwas a properly recorded (properly filed) notice oftax lien.perly filed.
Law Office of Peter M. Lively * Personal Financial Law Center I
11268 Washington Boulevard, Suite 203, Culver City, California 90230-4647
Telephone: (310) 391-2400* Toll Free: (800) 307-3328 * Fax: (310) 391-2462
On Tuesday, March 11, 2014 3:20 PM, Stella Havkin wrote:
I am just asking. I have not seen it but I believe you.
From:cdcbaa@yahoogroups.com [mailto:cdcbaa@yahoogroups.com] On Behalf Of Steven B. Lever
Sent: Tuesday, March 11, 2014 3:02 PM
To: cdcbaa@yahoogroups.com
Subject: RE: [cdcbaa] 9th Circuit tax case - pension can be levied upon post-discharge
All along. Ive seen it happen. Ask Neil Kakuske (sp?) at the IRS if you doubt it.
Steven B. Lever
From:cdcbaa@yahoogroups.com [mailto:cdcbaa@yahoogroups.com] On Behalf Of Havkin Stella
Sent: Tuesday, March 11, 2014 3:10 PM
To: cdcbaa@yahoogroups.com
Subject: Re: [cdcbaa] 9th Circuit tax case - pension can be levied upon post-discharge
Has the IRS been doing it all along or is this a new tactic ?
>Sent: Mar 11, 2014 2:58 PM
>To: cdcbaa@yahoogroups.com
>Subject: Re: [cdcbaa] 9th Circuit tax case - pension can be levied upon post-discharge
>
>That was my point. The exemption is irrelevant as to the IRS. The lien
>would allow the IRS to go after the pension regardless of whether the
>pension is an asset of the estate or not.
>
>Mark T. Jessee
>Law Offices of Mark T. Jessee
>"A Debt Relief Agency"
>50 W. Hillcrest Drive, Suite 200
>Thousand Oaks, CA 91360
>(805) 497-5868 (805) 497-5864 (Facsimile)
>
>
>
>In a message dated 3/11/2014 2:46:50 P.M. Pacific Daylight Time,
>sblever@leverlaw.com writes:
>
>
>
>
>
>The IRS as a United States agency does not have to give credence to state>law exemptions. IRS can always go after IRAs and pensions for
>nondischargeable debts or enforcement of tax liens.
>Steven B. Lever
>
>
>jesseelaw@aol.com
>Sent: Tuesday, March 11, 2014 11:35 AM
>To: cdcbaa@yahoogroups.com
>Subject: Re: [cdcbaa] 9th Circuit tax case - pension can be levied upon
>post-discharge
>
>
>
>
>
>Yes, but even if unambiguously exempted would not the net result be the
>same as the IRS holds a statutory lien? If the pension was part of the
>Chapter 7 estate, the exemption on Schedule C would not apply to the IRS
>statutory lien. If the pension is subject to IRS levy and it was affirmatively
>included by the debtor (assuming the debtor can elect to make it so) as an>asset of the bankruptcy estate would that waive the ERISA protection as to>the Chapter 7 Trustee to administer it as an asset? Regardless, if the
>pension was not administered in the bankruptcy estate, the lien would still
>ride through the bankruptcy and the IRS could still pursue the lien.
>
>
>
>Mark T. Jessee
>Law Offices of Mark T. Jessee
>"A Debt Relief Agency"
>50 W. Hillcrest Drive, Suite 200
>Thousand Oaks, CA 91360
>(805) 497-5868 (805) 497-5864 (Facsimile)
>
>
>
>
>In a message dated 3/11/2014 9:54:09 A.M. Pacific Daylight Time,
>_havkinlaw@earthlink.net_ (mailto:havkinlaw@earthlink.net) writes:
>
>
>
>It sounds like the 9th circuit thought that might have worked.
>
>
>_[mailto:cdcbaa@yahoogroups.com]_ (mailto:[mailto:cdcbaa@yahoogroups.com]) On Behalf
>Of Kirk Brennan
>Sent: Tuesday, March 11, 2014 9:44 AM
>To: Cdcbaa Yahoo Listserv
>Subject: Re: [cdcbaa] 9th Circuit tax case - pension can be levied upon
>post-discharge
>
>
>
>
>Do you think the result would have been different if the pension had been>unequi vocally exempted on the Schedule C?
>
>On Mar 11, 2014 8:58 AM, (mailto:havkinlaw@earthlink.net) > wrote:
>
>
>
>
>[_Attachment(s)_ (mip://0cac8ba0/default.html#144b1ddfa6d023d3_TopText)
>from _havkinlaw@earthlink.net_ (mailto:havkinlaw@earthlink.net) included
>below]
>
>The 9th Circuit ruled that IRS could levy after discharge on a pension
>that was excluded under Patterson v. Shumate in the Debtor's bankruptcy
>schedules, rather than exempted. See attached.
>Stella Havkin
>
>
>
>
>
>
>
>
>
>
>
>
>
>
>
>
>
>
>
>
>
>
>
>

The post was migrated from Yahoo.

The IRS had two arguments. The first is that since the Debtor excluded the
pension from the estate, there is no bk protection. The circuit court
agreed and stopped it's analysis there.
The IRS has another argument: It argues that it is *mandatory* for the
pension to be excluded from the estate. This was not decided.
So if Debtor "includes" the pension in the estate and exempts it, the IRS
may argue that the Debtor cannot do this because exclusion is mandatory.
Sincerely,
Michael Avanesian
Law Offices of David A. Tilem
www.tilemlaw.com
818-507-6000
On Tue, Mar 11, 2014 at 11:53 AM, Havkin Stella wrote:
>
>
> I think this is going to go to the US Supreme Court. There is enough
> public interest involved in this issue and maybe NACBA can assist.
>
>
>
> Stella
>
> -----Original Message-----
> Sent: Mar 11, 2014 11:35 AM
> To: cdcbaa@yahoogroups.com
> Subject: Re: [cdcbaa] 9th Circuit tax case - pension can be levied upon
> post-discharge
>
> Yes, but even if unambiguously exempted would not the net result be the
> same as the IRS holds a statutory lien? If the pension was part of the
> Chapter 7 estate, the exemption on Schedule C would not apply to the IRS
> statutory lien. If the pension is subject to IRS levy and it was
> affirmatively
> included by the debtor (assuming the debtor can elect to make it so) as an
> asset of the bankruptcy estate would that waive the ERISA protection as to
> the Chapter 7 Trustee to administer it as an asset? Regardless, if the
> pension was not administered in the bankruptcy estate, the lien would
> still
> ride through the bankruptcy and the IRS could still pursue the lien.
>
> Mark T. Jessee
> Law Offices of Mark T. Jessee
> "A Debt Relief Agency"
> 50 W. Hillcrest Drive, Suite 200
> Thousand Oaks, CA 91360
> (805) 497-5868 (805) 497-5864 (Facsimile)
>
>
>
> In a message dated 3/11/2014 9:54:09 A.M. Pacific Daylight Time,
> havkinlaw@earthlink.net writes:
>
>
>
>
>
> It sounds like the 9th circuit thought that might have worked.
>
>
> Kirk Brennan
> Sent: Tuesday, March 11, 2014 9:44 AM
> To: Cdcbaa Yahoo Listserv
> Subject: Re: [cdcbaa] 9th Circuit tax case - pension can be levied upon
> post-discharge
>
>
>
>
> Do you think the result would have been different if the pension had been
> unequi vocally exempted on the Schedule C?
>
> On Mar 11, 2014 8:58 AM, (mailto:havkinlaw@earthlink.net) > wrote:
>
>
>
>
> [_Attachment(s)_ (mip://0cac8ba0/default.html#144b1ddfa6d023d3_TopText)
> from _havkinlaw@earthlink.net_ (mailto:havkinlaw@earthlink.net) included
> below]
>
> The 9th Circuit ruled that IRS could levy after discharge on a pension
> that was excluded under Patterson v. Shumate in the Debtor's bankruptcy
> schedules, rather than exempted. See attached.
> Stella Havkin
>
>
>
>
>
>
>
>
>
>
>
>
>
>
>
>
>
The IRS had two arguments. The first is that since the Debtor excluded the pension from the estate, there is no bk protection. The circuit court agreed and stopped it's analysis there.
The IRS has another argument: It argues that it is mandatory for the pension to be excluded from the estate. This was not decided.So if Debtor "includes" the pension in the estate and exempts it, the IRS may argue that the Debtor cannot do this because exclusion is mandatory.
Sincerely, Michael AvanesianLaw Offices of David A. Tilemwww.tilemlaw.com
818-507-6000
On Tue, Mar 11, 2014 at 11:53 AM, Havkin Stella <havkinlaw@earthlink.net> wrote:

I think this is going to go to the US Supreme Court. There is enough public interest involved in this issue and maybe NACBA can assist.

Stella
arget"_blank">jesseelaw@aol.com Sent: Mar 11, 2014 11:35 AM To: cdcbaa@yahoogroups.com
Subject: Re: [cdcbaa] 9th Circuit tax case - pension can be levied upon post-discharge Yes, but even if unambiguously exempted would not the net result be the same as the IRS holds a statutory lien? If the pension was part of the
Chapter 7 estate, the exemption on Schedule C would not apply to the IRS statutory lien. If the pension is subject to IRS levy and it was affirmatively included by the debtor (assuming the debtor can elect to make it so) as an
asset of the bankruptcy estate would that waive the ERISA protection as to the Chapter 7 Trustee to administer it as an asset? Regardless, if the pension was not administered in the bankruptcy estate, the lien would still
ride through the bankruptcy and the IRS could still pursue the lien.Mark T. JesseeLaw Offices of Mark T. Jessee"A Debt Relief Agency"50 W. Hillcrest Drive, Suite 200Thousand Oaks, CA 91360
(805) 497-5868 (805) 497-5864 (Facsimile)In a message dated 3/11/2014 9:54:09 A.M. Pacific Daylight Time,
havkinlaw@earthlink.net writes:It sounds like the 9th circuit@yahoogroups.com" target"_blank">cdcbaa@yahoogroups.com [mailto:cdcbaa@yahoogroups.com] On Behalf Of
Kirk BrennanSent: Tuesday, March 11, 2014 9:44 AMTo: Cdcbaa Yahoo ListservSubject: Re: [cdcbaa] 9th Circuit tax case - pension can be levied upon post-dischargeDo you think the result would have been different if the pension had been
unequi vocally exempted on the Schedule C? On Mar 11, 2014 8:58 AM, <_havkinlaw@earthlink.net_ (mailto:havkinlaw@earthlink.net) > wrote:
[_Attachment(s)_ (mip://0cac8ba0/default.html#144b1ddfa6d023d3_TopText) from _havkinlaw@earthlink.net_ (mailto:havkinlaw@earthlink.net) included
below] The 9th Circuit ruled that IRS could levy after discharge on a pension that was excluded under Patterson v. Shumate in the Debtor's bankruptcy schedules, rather than exempted. See attached.
Stella Havkin

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