United States v. 2009-06-26 | 08-55652 | LLOYD RUCKER V. LLOYD RUCKER | precedential | opinion |

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
 In the Matter of: LLOYD MYLES
RUCKER,
Debtor,
No. 08-55652
D.C. No. RONALD A. CUNNING,  8:06-cv-01022- Appellant, MMM
v.
LLOYD MYLES RUCKER,
Appellee. 
 In the Matter of: LLOYD MYLES
RUCKER,
Debtor, No. 08-55655
D.C. No.
LLOYD MYLES RUCKER, 8:06-cv-01022- 
Appellee-Cross-Appellant, MMM
v. OPINION
RONALD A. CUNNING,
Appellant-Cross-Appellee. 
Appeal from the United States District Court
for the Central District of California
Margaret M. Morrow, District Judge, Presiding
Argued and Submitted
May 8, 2009—Pasadena, California
Filed June 26, 2009
8053

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Before: Betty B. Fletcher, Raymond C. Fisher, and
Ronald M. Gould, Circuit Judges.
Opinion by Judge Gould
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COUNSEL
Kyra E. Andrassy, Weiland, Golden, Smiley, Wang Ekvall &
Strok, LLP, Costa Mesa, California, for the appellants/cross-
appellees.
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Mark Bradshaw and Evan D. Smiley, Shulman Hodges &
Bastian LLP, Foothill Ranch, California, for the
appellee/cross-appellant.
OPINION
GOULD, Circuit Judge:
Facing a civil judgment debt of more than $6.5 million,
Lloyd Myles Rucker declared bankruptcy and tried to exempt
his assets as belonging to private retirement plans under Cali-
fornia Civil Procedure Code (“CPC”) § 704.115. Rucker had
previously placed the assets in pension and 401(k) plans
funded by his wholly owned corporations. The bankruptcy
court denied the exemption on the explicit ground that Ruck-
er’s retirement plans were not designed and used primarily for
retirement purposes. The district court saw it otherwise and
reversed this judgment. We conclude, after considering the
totality of the circumstances, that the bankruptcy court’s prior
decision was not clear error, and we therefore reverse the dis-
trict court. Because the applicable law was not free from
doubt, we elaborate our reasons for disagreement with the dis-
trict court’s assessment.
I
In 1997 Ronald Cunning and Ronald Cunning D.D.S., Inc.
(collectively “Cunning”), obtained a civil judgment against
Rucker for $3.2 million. Rucker served 30 months in jail for
his criminally fraudulent conduct that gave rise to the judg-
ment. See United States v. Rucker, 132 F.3d 41 (9th Cir.
1997) (unpublished); United States v. Rucker, 107 F.3d 18
(9th Cir. 1996) (unpublished). With interest, Rucker now
owes more than $6.5 million to Cunning on the judgment.
In 2001 Rucker established the Lloyd Rucker Defined Ben-
efit Pension Plan (the “Pension Plan”) and several 401(k)
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plans (the “401(k) Plans”). The Plans were associated with
three of Rucker’s wholly owned corporations (the “Controlled
Corporations”), and Rucker was the sole employee benefi-
ciary of his Plans. From 2001 to 2005 Rucker aggressively
funded the Plans both personally and through his Controlled
Corporations. In most of these years Rucker wilfully caused
the Plans to be “overfunded,” in that contributions to them
exceeded the annual limits imposed by the Internal Revenue
Code. See 26 U.S.C. § 401(a)(16) (stating that retirement
plans must adhere to contribution limits to earn favorable tax
treatment). The overfunding amount was about 20 percent of
the total value of the Plans. Also, contributions to the Plans
by the Controlled Corporations were markedly substantial in
relation to the salaries the corporations paid to Rucker, in
some instances exceeding his salary. For example, in 2001
and 2002 the Controlled Corporations contributed at least
$30,000 more each year to Rucker’s retirement plans than
they paid to him in salary. And in 2003 and 2004 Plan contri-
butions were about equal to Rucker’s salary.
Rucker’s Plan activities quite plainly violated several Inter-
nal Revenue Service (“IRS”) rules. The bankruptcy court
found that Rucker “repeatedly failed to accurately disclose” to
the IRS contributions made by the Controlled Corporations.
Between 2002 and 2004 Rucker contributed $160,000 more to
the 401(k) Plans than he disclosed to the IRS, and in 2003
alone he contributed about $150,000 more to the Pension Plan
than he first reported. The record also shows that in 2003
Rucker directed a wholly owned offshore corporation to con-
tribute $120,000 to his Plans via a foreign bank account, even
though the offshore corporation was not a plan sponsor per-
mitted to contribute to the Plans. Finally, in 2003 the Pension
Plan purchased property on which Rucker lived rent-free for
six months. However, the total rental value of the property for
that time period constituted less than four percent of the Plan
assets. Apart from this relatively small constructive rent pay-
ment, Rucker has not borrowed or withdrawn money from his
Plans. The general picture is that Rucker disregarded IRS
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rules in funding his Plans but that he generally did not with-
draw money from his Plans for his personal use.
When Rucker filed for bankruptcy his Plans were worth
about $1.2 million. By contrast, Rucker has paid Cunning vir-
tually nothing on the judgment. Rucker has also said that he
has no plans to pay any part of the judgment. Rucker
explained: “It would be like paying into a black hole.”
After Cunning increased his collection efforts in 2005,
Rucker filed for Chapter 7 bankruptcy in Florida, but he did
not meet the venue requirements and the case was transferred
to the Central District of California. In the California federal
bankruptcy court, Rucker declared as exempt his assets in all
the Plans under CPC § 704.115(b), which exempts “all
amounts held, controlled, or in process of distribution by a
private retirement plan.” Cunning objected to the exemption,
claiming that the Plans were not exempt because they were
not designed or used primarily for retirement purposes.
After a bench trial, the bankruptcy court sustained Cun-
ning’s objection and determined that the Plans were not
exempt because Rucker designed and used the Plans primarily
to shield his assets from Cunning. Instrumental in the bank-
ruptcy court’s reasoning were the facts that Rucker over-
funded the Plans, that Rucker took at least one constructive
rent payment, and that Rucker did not accurately disclose his
contributions as required by IRS regulations. The bankruptcy
court also found explicitly that Rucker lacked credibility.1
Rucker appealed to the district court, which reversed the
1Rucker does not challenge the bankruptcy court’s adverse credibility
finding, possibly because it is supported by voluminous evidence in the
record. For example, Rucker first testified that he never used Controlled
Corporation funds to pay personal expenses, but then changed his testi-
mony after being presented with evidence of corporate checks used to pay
for, among other things, an engagement ring.
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bankruptcy court and held that although Rucker may have
created the Plans in part to shield assets, he was still entitled
to the exemption because the Plans were designed and used
primarily for retirement purposes. Cunning appeals the district
court’s reversal of the bankruptcy court.2
The evidence taken together squarely raises the issue of
whether a person who funds a retirement plan both for retire-
ment purposes in part and to shelter assets and avoid paying
debts in part has acted primarily for retirement purposes. The
district court reasoned that if the evidence here showed dual
purposes, it nonetheless could not conclude that the funding
was primarily to avoid a debt. However, when we look at the
totality of circumstances and give deference to the bankruptcy
court’s factual findings after trial, we come to a different con-
clusion.
II
This case turns in part on our assessment of the appropriate
2By taking this appeal Cunning implicitly contends that we have juris-
diction, even though Cunning has flagged some questions about jurisdic-
tion. The jurisdictional issue arises because, after deciding that Rucker’s
Plans were designed and used primarily for retirement purposes, the dis-
trict court remanded to the bankruptcy court to address a separate factual
issue that had not been raised by the parties. Rucker urges that we have
jurisdiction in an argument framed as a cross-appeal to the district court’s
remand. It is always our duty to address jurisdictional issues, and so we
do so here even though Cunning has invoked our jurisdiction and Rucker
agrees to it. See Diaz-Covarrubias v. Mukasey, 551 F.3d 1114, 1117 (9th
Cir. 2009).
We have jurisdiction over “all final decisions” of the district court,
including decisions made in its bankruptcy appellate capacity. 28 U.S.C.
§ 158(d). Applying a “pragmatic approach in determining finality under
§ 158(d),” Vyline Enters., Inc. v. Naugles, Inc. (In re Vylene Enters., Inc.),
968 F.2d 887, 894 (9th Cir. 1992), we conclude that the district court deci-
sion was a final, appealable order because the parties never contested and
verbally stipulated the factual issue that led to the remand, as Cunning
conceded before the bankruptcy court.
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standards of review. Because we are in as good a position as
the district court to review the findings of the bankruptcy
court, we independently review the bankruptcy court’s deci-
sion. Rifino v. United States (In re Rifino), 245 F.3d 1083,
1086 (9th Cir. 2001). We review de novo the bankruptcy
court’s decision on the scope of the exemption for private
retirement plans provided by CPC § 704.115. Dudley v.
Anderson (In re Dudley), 249 F.3d 1170, 1173 (9th Cir.
2001). However, our precedent establishes that “whether a
plan is designed and used for retirement purposes is a ques-
tion of fact that we review for clear error.” Jacoway v. Wolfe
(In re Jacoway), 255 B.R. 234, 237 (9th Cir. BAP 2000); see
also Simpson v. Burkart (In re Simpson), 557 F.3d 1010, 1014
(9th Cir. 2009) (reviewing for clear error whether the features
of a retirement instrument “demonstrate that the product’s pri-
mary purpose and effect [is] . . . a retirement plan” under CPC
§ 704.115). Our conclusion that a clear error standard governs
review of the bankruptcy court’s assessment whether a plan’s
funding is primarily for retirement purposes is a key factor to
our evaluation of the merits of the appeal. The district court
erred by applying de novo review to the bankruptcy court’s
factual determination that Rucker’s Plans were not designed
and used primarily for retirement purposes.3 Applying the
clear error standard, we reach a different conclusion than did
the district court, and we reaffirm the bankruptcy court’s deci-
sion.
3In determining that de novo review applied, the district court relied on
Kim v. Kim (In re Kim), 257 B.R. 680, 684 (9th Cir. BAP 2000), which
held that when facts are not in dispute, the application of law to fact is
reviewed de novo. Yet, as Kim also held, retirement purpose is a factual
question. See id. (“Whether a plan is designed and used for retirement pur-
poses is a question of fact that the panel reviews for clear error.”). That
factual issue is hotly disputed here, so we are not reviewing the bank-
ruptcy court’s application of law to undisputed facts. Rather, we review
the bankruptcy court’s factual determination of retirement purpose; clear
error review therefore applies.
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III
[1] Rucker claims that his Plan assets are exempt from his
bankruptcy estate and beyond Cunning’s reach because they
fall within CPC § 704.115(b), which exempts “[a]ll amounts
held, controlled, or in process of distribution by a private
retirement plan.”4 A plan used in part to shield assets is still
exempt if it was designed and used primarily for retirement
purposes. Dudley, 249 F.3d at 1176. We construe CPC
§ 704.115 “liberally . . . for the benefit of the debtor.” Lieber-
man v. Hawkins (In re Lieberman), 245 F.3d 1090, 1092 (9th
Cir. 2001). In fact, “[t]he very purpose of the exemption is to
permit a judgment debtor to place funds beyond the reach of
creditors, so long as they qualify for the exemption under the
law.” Schwartzman v. Wilshinsky, 50 Cal. App. 4th 619, 629
(Ct. App. 1996).
In deciding whether a plan is designed and used primarily
for retirement purposes, “[a]ll factors are relevant; but no one
is dispositive.” Bloom v. Robinson (In re Bloom), 839 F.2d
1376, 1379 (9th Cir. 1988). Many factors previously consid-
ered by us and by California courts concern the extent of a
debtor’s withdrawals or loans from the plan. See Jacoway,
255 B.R. at 239-40 (9th Cir. BAP 2000) (listing nonexhaus-
tive factors considered by courts when evaluating CPC
§ 704.115(b), most of which relate to plan withdrawals or
loans). Courts have also considered a debtor’s subjective
intent in deciding whether the plans have a retirement pur-
pose. See Simpson, 557 F.3d at 1018 (stating that “while the
4We have previously held that this exemption may apply even to single-
employee plans like Rucker’s that are established by wholly owned corpo-
rations. See Cheng v. Gill (In re Cheng), 943 F.2d 1114, 1117 (9th Cir.
1991) (“We recognize the odd result the statute creates—one-person medi-
cal corporations are treated the same as General Motors, creating the
opportunity for shareholders of tiny corporations to abuse the exemption
scheme—but we may not disregard the statute’s language to address prob-
lems properly left to the legislature.”).
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debtor’s subjective intent cannot create an exemption, it may
take one away”).
[2] Because Rucker made no loans or withdrawals from his
Plans other than the cited instance of his rent-free use of Plan
property, he argues that we should allow the retirement plan
exemption. His argument is not frivolous. We are not aware
of any California or federal court in a published opinion deny-
ing an exemption under CPC § 704.115 in circumstances
where the debtor made no significant withdrawals or loans
from the plan. At the same time, however, we are also aware
of no precedent stating that the lack of withdrawals or loans
in itself conclusively establishes a primary retirement pur-
pose. Instead, applicable precedent requires that we consider
all the circumstances to determine whether Rucker’s Plans
were designed and used primarily for retirement purposes. See
Bloom, 839 F.2d at 1379-80 (“All factors are relevant; but no
one is dispositive. Rather, all of them must be considered in
the light of the fundamental inquiry—whether the plan was
designed and used for a retirement purpose.”). At the outset,
we answer Rucker’s argument by holding that the absence of
loans or withdrawals from a private retirement plan, while
significant, does not in itself guarantee that the plan was
designed and used primarily for retirement under CPC
§ 704.115. Instead, a careful assessment of the totality of cir-
cumstances is the substantive standard governing our deci-
sion, and this standard may be applied absent any withdrawals
of or loans from the disputed funds.
We conclude that the bankruptcy court did not commit
clear error in determining that Rucker used his Plans primar-
ily to hide assets from Cunning, and not primarily for retire-
ment. Once we articulate the totality of circumstances
standard, and recognize that a bankruptcy court decision on
the fact-intensive issue of a retirement plan’s primary purpose
is reviewed only for clear error, we conclude that the bank-
ruptcy court’s initial decision on that issue must be here reaf-
firmed and the district court’s contrary conclusion reversed.
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[3] We stress that Rucker engaged in egregious and decep-
tive conduct in funding his Plans. He consistently funded his
Plans in excess of the contribution limits imposed by the
Internal Revenue Code,5 and he repeatedly and wilfully lied
to the IRS about the extent of his Plan contributions. Rucker
also secretly contributed money to his Plans using a wholly
owned offshore corporation and a foreign bank account.
Rucker gave no explanation for his misrepresentations or for
why anyone with a genuine retirement purpose would under-
report the amount of money contributed into a retirement plan
or secretly contribute from offshore corporations ineligible to
participate in the plan. Rucker’s behavior in hiding his contri-
butions and lying to the IRS is more consistent with a primary
goal of hiding assets than with a primary purpose of saving
for retirement.
[4] Our analysis of other factors further indicates that
Rucker’s Plans were designed and used primarily to shield
assets. Rucker caused his Controlled Corporations in some
years to contribute more to his Plans than they paid him in
wages. Also, Rucker admits that he intends never to pay
another cent of his “black hole” judgment and that his Plan
contributions were motivated at least in part by a desire to
hide assets. See Jacoway, 255 B.R. at 239 (listing “whether
the debtor used the plan to hide otherwise ineligible assets . . .
from creditors” as a factor in making the “primarily for retire-
ment” determination) (quotation marks omitted). Rucker’s
expressed goal of shielding his assets from Cunning is yet
another factor suggesting that his Plans were not used primar-
ily for retirement purposes. See Simpson, 557 F.3d at 1018
5The district court discounted Rucker’s overfunding in part because the
case the bankruptcy court cited in considering overfunding, Jacoway, 255
B.R. at 240 n.5, mentions only excessive loans and withdrawals, not
excessive contributions. Although the district court is correct that Jacoway
did not address overfunding, this does not mean that courts are prohibited
from viewing overfunding as evidence of a non-retirement purpose. The
violation of IRS regulations is one factor that impacts our totality of the
circumstances analysis.
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(holding that courts should consider in a section 704.115 anal-
ysis “whether the particular asset, based on the debtor’s sub-
jective intent and the product’s true nature, demonstrates that
it is primarily intended or used for retirement purposes”).
[5] In summary, when a court evaluates the totality of the
circumstances to determine whether a private retirement plan
is designed and used primarily for retirement purposes under
CPC § 704.115, “[a]ll factors are relevant,” and a court is not
limited to considering only those factors previously consid-
ered by other California and federal courts. Bloom, 839 F.2d
at 1379-80. Courts may also consider, as the bankruptcy court
did here, whether the debtor overfunded the plan or violated
other IRS rules in contributing to the plan; the contribution
amount by a corporation relative to the debtor’s wages from
that corporation; and the debtor’s credibility and subjective
intent. None of these additional factors is required or disposi-
tive. After considering the totality of the circumstances relat-
ing to Rucker’s Plan activities, we conclude that the
bankruptcy court did not make a clear error in its conclusion
that the Plans were designed and used primarily to shield
assets. We hold that Rucker’s Plans are not exempt under
CPC § 704.115.
IV
A private retirement plan is not necessarily designed and
used primarily for retirement under CPC § 704.115 merely
because a debtor never withdraws or borrows from the plan.
Here, Rucker’s unlawful and deceptive behavior in funding
his Plans indicates, considering all the circumstances, that his
Plans were not designed and used primarily for retirement and
thus are not exempt under CPC § 704.115. We agree with the
bankruptcy court that Cunning’s objection to the exemption
should be sustained. We reverse the contrary conclusion of
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the district court. We remand for further proceedings consis-
tent with this decision.6
REVERSED AND REMANDED.
6By concluding that we have jurisdiction over this appeal, we decide in
favor of Rucker’s cross-appeal. That cross-appeal correctly asserted that
the district court’s order was a final decision and that its remand to the
bankruptcy court on an unrelated factual issue was not necessary. As a
result of our decision, neither party may raise the previously uncontested
factual issue on remand.
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