In re: ROBIN L. JOHNSTON v. Thomas Hazlett

*The Honorable Denise Page Hood, United States District Judge for
the Eastern District of Michigan, sitting by designation.
1
RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
ELECTRONIC CITATION: 2000 FED App. 0126P (6th Cir.)
File Name: 00a0126p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
In re: R OBIN L. J OHNSTON ,
Debtor.
________________________
R OBIN L. J OHNSTON ,
Appellant,
v.
THOMAS HAZLETT ,
Appellee.
;>

1
No. 98-3954
Appeal from the Bankruptcy Appellate Panel
of the Sixth Circuit.
No. 97-59613—Barbara J. Sellers, Bankruptcy Judge.
Argued: September 14, 1999
Decided and Filed: April 7, 2000
Before: BATCHELDER and GILMAN, Circuit Judges;
HOOD,* District Judge.

-- 1 of 4 --

2 In re Johnston No. 98-3954
_________________
COUNSEL
ARGUED: Andrew W. Miller, Steubenville, Ohio, for
Appellant. Thomas Hazlett, HARPER & HAZLETT, St.
Clairsville, Ohio, for Appellee. ON BRIEF: Andrew W.
Miller, Steubenville, Ohio, for Appellant. Thomas Hazlett,
HARPER & HAZLETT, St. Clairsville, Ohio, for Appellee.
_________________
OPINION
_________________
ALICE M. BATCHELDER, Circuit Judge. Debtor-
Appellant Robin L. Johnston appeals the decision of the
Bankruptcy Appellate Panel affirming the Bankruptcy Court’s
denial of her claim that her 1997 earned income tax credit
(“EIC”) is exempt from inclusion in her Chapter 7 bankruptcy
estate. For the reasons that follow, we affirm the decision of
the Bankruptcy Appellate Panel.
I.
On October 20, 1997, Robin L. Johnston filed a voluntary
petition for relief under Chapter 7 of the United States
Bankruptcy Code. Johnston listed in her petition for relief a
1997 EIC in the amount of $2,000 and claimed the entire
amount as an exemption. The Bankruptcy Court sustained the
Trustee’s objection to the exemption, rejecting Johnston’s
argument that because she had no “legal or equitable interest”
in the EIC at the time she filed her petition, the EIC cannot be
defined as property of the estate under 11 U.S.C. § 541. The
Bankruptcy Appellate Panel for the Sixth Circuit affirmed the
disallowance of the exemption, holding that an EIC is
property of the bankruptcy estate under 11 U.S.C. § 541, even
if the bankruptcy petition is filed prior to the end of the tax
year in which the EIC is earned.

-- 2 of 4 --

No. 98-3954 In re Johnston 3
1Issues not raised before the trial court are generally considered
waived. See White v. Anchor Motor Freight, Inc., 899 F.2d 555, 559 (6th
Cir. 1990).
2See, e.g., Baer v. Montgomery (In re Montgomery), 219 B.R. 913
(10th Cir. B.A.P. 1998); In re Fraire, No. 96-1241-JTM, 1997 WL 45465
(D. Kan. Jan. 2, 1997); In re McCourt, 217 B.R. 998 (Bankr. S.D. Ohio
1997); In re Barnett, 214 B.R. 632 (Bankr. W.D. Okla. 1997); In re
Beagle, 200 B.R. 595 (Bankr. N.D. Ohio 1996); In re Kurilich, 199 B.R.
161 (Bankr. N.D. Ohio 1996); In re Goertz, 202 B.R. 614 (Bankr. W.D.
Mo. 1996); In re George, 199 B.R. 60 (Bankr. N.D. Okla. 1996); In re
Brown, 186 B.R. 224 (Bankr. W.D. Ky. 1995); In re Goldsberry, 142
B.R. 158 (Bankr. E.D. Ky. 1992); In re Buchanan, 139 B.R. 721 (Bankr.
D. Idaho 1992); In re Davis, 136 B.R. 203 (Bankr. S.D. Iowa 1991); In
re Richardson, 216 B.R. 206 (Bankr. S.D. Ohio 1997).
Johnston raises three assignments of error on appeal: (1)
because she was not entitled to the EIC until the end of the tax
year, she had neither a legal nor an equitable interest in the
EIC at the time she filed her petition, and therefore, it was not
part of the bankruptcy estate; (2) the opt-out provision of 11
U.S.C. § 522(b)(1) is unconstitutional; and (3) public policy
militates in favor of allowing her to keep the EIC in light of
her limited earnings. Because she raises the latter two for the
first time on appeal, we will not address them,1 and will
confine our review to Johnston’s first assignment of error.
II.
Whether the EIC was properly included as property of the
bankruptcy estate is purely an issue of law. We review a
bankruptcy court’s conclusions of law de novo. Nicholson v.
Isaacman (In re Isaacman), 26 F.3d 629, 631 (6th Cir. 1994).
The overwhelming majority of courts confronted with this
issue have rejected the argument that Johnston makes here.2
In Baer v. Montgomery (In re Montgomery), 219 B.R. 913
(10th Cir. B.A.P. 1998), for example, the bankruptcy court
had determined that a debtor’s EIC for the pre-petition portion
of the tax year was not part of the bankruptcy estate. The
court based its reasoning on the opinion in Hoffman v. Searles

-- 3 of 4 --

4 In re Johnston No. 98-3954
(In re Searles), 445 F. Supp. 749 (D. Conn. 1978), which held
that under the “fresh start” provision of § 70a(5) of the
Bankruptcy Act, EICs are “expectancies” accruable at the end
of the tax year and payable in the year following bankruptcy.
Searles, 445 F. Supp. at 753. The Bankruptcy Appellate
Panel for the Tenth Circuit reversed and remanded, noting
that the bankruptcy court’s conclusions were misplaced in
light of the Bankruptcy Reform Act of 1978:
The Bankruptcy Act was repealed in favor of the
modern Bankruptcy Code by the Bankruptcy Reform Act
of 1978. Though the “fresh start” maxim rising from
section 70a(5) of the Act may have been a fundamental
consideration in the formation of the Code, we recognize
the maxim to be a limited, and no longer a completely
unencumbered, guiding principle. Unlike the Act, the
Code requires that all property of the debtor, whether or
not exempt, be included in the bankruptcy estate,
mandating that an estate in bankruptcy comprise “all
legal or equitable interests of the debtor in property as of
the commencement of the case.” 11 U.S.C. § 541(a)(1)
(1994). Legislative history indicates section 541 is
intended to be given a broad definition to include “all
kinds of property, including tangible or intangible
property, causes of action . . ., and all other forms of
property specified in section 70a of the Bankruptcy Act
. . . . [I]t includes as property of the estate all property of
the debtor, even that needed for a fresh start.” H.R.Rep.
No. 95-595, at 367 (1977). Any conclusion that EICs are
necessary or mandatory for a “fresh start” may be
reasonably inferred under the Act, but is incorrect in light
of the Code.
Montgomery, 219 B.R. at 916 (alteration in original).
Montgomery further held that “qualifying individuals may
request payment of EICs at the end of the tax year, or at any
time during the tax year,” id. at 917, and, citing In re Davis,
136 B.R. 203, 207 (Bankr. S.D. Iowa 1991), that “[n]either
possession nor constructive possession, either prior to or
contemporaneous with the filing for bankruptcy protection, is
No. 98-3954 In re Johnston 5
required to vest an individual with a property interest in
EICs.” Id.
In the case before us here, the Bankruptcy Appellate Panel
reviewed the reasoning and conclusions of Montgomery and
concluded, “Montgomery also held that EICs are property of
the estate under § 541, even when the bankruptcy petition is
filed prior to the end of the tax year. ‘Congress intended EICs
to be available to qualifying individuals at anytime during the
tax year.’ We agree with Montgomery.” Johnston v. Hazlett
(In re Johnston), 222 B.R. 552, 555 (6th Cir. B.A.P. 1998)
(internal citations omitted).
We agree with the Bankruptcy Appellate Panel that the
reasoning of the Montgomery panel is correct. Accordingly,
we hold that in the case before us here, the bankruptcy court
and appellate panel properly determined that Johnston’s EIC
was property of the bankruptcy estate, despite the fact that
Johnston filed her bankruptcy petition prior to the end of the
tax year in which the credit was earned.
CONCLUSION
The decision of the Bankruptcy Appellate Panel affirming
the judgment of the Bankruptcy Court is AFFIRMED.

-- 4 of 4 --