Universal Service v. Post-Confirmation , 463 F.3d 1064 ( 2006 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
In re: INCOMNET, INC., a California 
corporation; In re: INCOMNET
COMMUNICATIONS CORPORATION,
f/k/a National Telephone &
Communications, Inc.,
Debtors, No. 03-56736
BAP No.
UNIVERSAL SERVICE ADMINISTRATIVE  CC-03-01064-
COMPANY, LKMo
Appellant, OPINION
v.
POST-CONFIRMATION COMMITTEE OF
UNSECURED CREDITORS OF INCOMNET
COMMUNICATIONS CORPORATION,
Appellee.

Appeal from the Ninth Circuit
Bankruptcy Appellate Panel
Montali, Klein, and Lee, Bankruptcy Judges, Presiding
Argued and Submitted
May 4, 2005—Pasadena, California
Filed September 20, 2006
Before: James R. Browning, Raymond C. Fisher, and
Jay S. Bybee, Circuit Judges.
Opinion by Judge Bybee
11709
11712 IN RE INCOMNET, INC.
COUNSEL
Jonathan T. Cain, Mintz Levin Cohn Ferris Glovsky & Popeo,
P.C., Reston, Virginia, for the appellant.
Michael R. Adele, Evan D. Smiley, Kyra E. Andrassy, and
Michael J. Heyman, Albert, Weiland & Golden, LLP, Costa
Mesa, California, for the appellee.
OPINION
BYBEE, Circuit Judge:
In this case we are asked to review the decision of the
bankruptcy appellate panel (“BAP”), which held that the Uni-
versal Service Administrative Company (“USAC”) was a
transferee under 11 U.S.C. §§ 547 and 550. We hold that
USAC is a transferee under the “dominion” test and affirm the
judgment of the BAP.
I. FACTS AND PROCEEDINGS
Congress passed the “1996 Telecommunications Act . . . to
encourage universal telecommunications service.” City of
Springfield v. Ostrander(In re LAN Tamers, Inc.), 329 F.3d
IN RE INCOMNET, INC. 11713
204, 206 (1st Cir. 2003). “Universal service includes
‘advanced telecommunications and information services,’ par-
ticularly high-speed internet access, for schools (as well as for
libraries and rural health care providers).” Id. (quoting 47
U.S.C. § 254(b)(6), (h)(1) (2000)). To this end, the Telecom-
munications Act of 1996 (“Telecommunications Act”)
requires telecommunications carriers providing interstate tele-
communications services to financially support the cost of
providing telecommunications services to schools, libraries,
health-care providers, low-income consumers, and subscribers
in high-cost areas. See 47 U.S.C. § 254(b) (2000); see also id.
§ 254(d) (“Every telecommunications carrier that provides
interstate telecommunications services shall contribute, on an
equitable and nondiscriminatory basis, to the specific, predict-
able, and sufficient mechanisms established by the Commis-
sion to preserve and advance universal service.”). The
telecommunications companies pass this cost through to their
subscribers; the charge generally appears on phone bills as the
“Universal Service Fund Fee.”
Each telecommunications carrier is required by law to con-
tribute to the Universal Support Fund (“USF”) based on its
interstate and international telecommunications revenue. See
47 C.F.R. § 54.709(a) (2005). The Federal Communications
Commission (“FCC”) devises a formula that each carrier must
adhere to in calculating its contribution. The USF contribu-
tions are not defined as federal funds; however, they exist
because of a federal mandate. In re LAN Tamers, Inc., 329
F.3d at 206; see also Tex. Office of Pub. Util. Council v. FCC,
183 F.3d 393, 405-09 (5th Cir. 1999) (describing the history
and universal service goal of the Telecommunications Act and
subsequent implementing regulations); In re LAN Tamers,
Inc., 329 F.3d at 206-07 (describing certain portions of the
USAC structure in conjunction with the E-Rate program
implementing USF financial support for schools and
libraries); Robert M. Frieden, Universal Service: When Tech-
nologies Converge and Regulatory Models Diverge, 13 HARV.
J.L. & TECH. 395, 397-422 (2000) (describing the Telecom-
11714 IN RE INCOMNET, INC.
munications Act’s “universal service mission” and its impact).
The universal service fund is then disbursed to subsidize the
costs of telecommunications services for the beneficiaries of
the Act (e.g., schools, libraries, and rural health care providers).1
All disbursements from the USF are made to carriers.2
Congress gave the FCC the authority to implement the uni-
versal service support provisions of the Telecommunications
Act and mandated that it do so. Pursuant to this authority, the
FCC designated USAC, a non-profit corporation incorporated
in Delaware, to collect, pool, and disburse the universal ser-
vice support funds contributed by carriers pursuant to 47
U.S.C. § 254(d). 47 C.F.R. § 54.701(a) (2005) (“The Univer-
sal Service Administrative Company is appointed the perma-
nent Administrator of the federal universal service support
mechanisms . . . .”); see also id. § 54.5 (“The term ‘Adminis-
trator’ shall refer to the Universal Service Administrative
Company that . . . has been appointed the permanent Admin-
istrator of the federal universal service support mecha-
nisms.”). All of USAC’s operations are carried out pursuant
to regulations promulgated by the FCC. See id. §§ 54.701,
54.702.
Incomnet Communications Corporation (“Incomnet”) was
a telecommunications carrier subject to universal service sup-
port contribution requirements under FCC regulations. Pursu-
ant to FCC rules, USAC billed and collected USF
1
This generally takes the form of payments made to carriers on behalf
of a beneficiary, reducing the amount the beneficiary must pay. However,
under certain circumstances, a beneficiary may pay the carrier directly and
subsequently be reimbursed out of the USF. See In re LAN Tamers, 329
F.3d at 207.
2
See 47 U.S.C. § 254(e) (2000) (“[O]nly an eligible telecommunications
carrier . . . shall be eligible to receive specific Federal universal service
support.”); see also In re LAN Tamers, 329 F.3d at 206-07. Even when a
beneficiary is reimbursed for payments it has already made to a carrier, the
USF funds are disbursed to the carrier, who is then legally obligated to
remit that amount to the beneficiary.
IN RE INCOMNET, INC. 11715
contributions from Incomnet during the months of June, July,
and August 1999. The contributions for those three months
totaled $470,161.52, and USAC deposited Incomnet’s contri-
butions in the USF along with contributions from other carri-
ers.
Incomnet filed for Chapter 11 bankruptcy on September 2,
1999.3 The Post-Confirmation Committee of Unsecured Cred-
itors of Incomnet Communications Corporation (“Commit-
tee”) was appointed trustee of Incomnet’s estate on May 9,
2000. The Committee filed a complaint against USAC in fed-
eral bankruptcy court, alleging that the $470,161.52 paid by
Incomnet to USAC in June, July, and August of 1999 consti-
tuted a preferential transfer made within the ninety days pre-
ceding Incomnet’s bankruptcy petition. Arguing that USAC
was a transferee under 11 U.S.C. §§ 547 and 550(a), the Com-
mittee sought to recover these universal service support con-
tributions and requested that USAC reimburse these payments
to Incomnet. The Committee also sought to prevent USAC
from making any further claims on Incomnet’s estate.
USAC admitted that it had received a total of $470,161.52
in universal service support contributions from Incomnet
through three payments in June, July, and August of 1999,
respectively. However, it contended that it was not a trans-
feree under 11 U.S.C. § 550(a), but was instead a mere con-
duit for the funds, and moved for summary judgment on that
ground.
The Committee filed objections to USAC’s motion for
summary judgment and subsequently moved for summary
3
On January 7, 2000, USAC filed a proof of claim as a creditor against
Incomnet. In doing so, USAC sought to recover $545,142.11, in addition
to the contributions Incomnet had already made to the USF, from Incom-
net for its “Federal Universal Service Obligation.” That claim is not at
issue in the instant case, and it is unclear from the pleadings and the record
as to whether USAC has abandoned this claim.
11716 IN RE INCOMNET, INC.
judgment on its first cause of action, the preferential transfer.
It argued that uncontroverted evidence established that
USAC’s receipt of the funds from Incomnet met all of the
requirements of 11 U.S.C. § 547(b).
Purporting to apply the test we announced in Danning v.
Miller (In re Bullion Reserve of North America), 922 F.2d
544, 549 (9th Cir. 1991), which the bankruptcy court labeled
the “dominion or control” test, the bankruptcy court found
that USAC did not have dominion or control over the USF.
The bankruptcy court held that “USAC [did] not have the req-
uisite degree of unfettered control over the [USF] to qualify
as a transferee” under 11 U.S.C. §§ 547 and 550 and granted
USAC’s motion for summary judgment. [E.R. 22.]
The Committee appealed to the Ninth Circuit Bankruptcy
Appellate Panel (“BAP”). The BAP reversed the bankruptcy
court’s grant of summary judgment in favor of USAC, hold-
ing that USAC was a transferee under 11 U.S.C. § 550(a)
because it was the actual recipient of the transfer. See Post-
Confirmation Comm. v. Universal Serv. Admin. Co. (In re
Incomnet Commc’ns Corp.), 299 B.R. 574, 581 (B.A.P. 9th
Cir. 2003). The BAP held that the “dominion or control” test
did not apply because it was adopted to distinguish financial
intermediaries from true recipients, and that the USAC trans-
action could not be a “conduit” transfer because it did not
involve a two-step transaction. See id. at 578, 580. USAC
filed this appeal.
II. STANDARD OF REVIEW
We review the BAP’s conclusion of law de novo. Cool
Fuel, Inc. v. Bd. of Equalization of Cal. (In re Cool Fuel,
Inc.), 210 F.3d 999, 1001 (9th Cir. 2000). “Because we are in
as good a position as the BAP to review bankruptcy court rul-
ings, we independently examine the bankruptcy court’s deci-
sion, reviewing the bankruptcy court’s interpretation of the
Bankruptcy Code de novo and its factual findings for clear
IN RE INCOMNET, INC. 11717
error.” United States v. Hatton (In re Hatton), 220 F.3d 1057,
1059 (9th Cir. 2000); see also Ehrenberg v. Cal. State Univ.,
Fullerton Found. (In re Beachport Entm’t), 396 F.3d 1083,
1086 (9th Cir. 2005); Tex. Comptroller of Pub. Accounts v.
Megafoods Stores, Inc. (In re Megafoods Stores, Inc.), 163
F.3d 1063, 1067 (9th Cir. 1998). A bankruptcy court’s sum-
mary judgment order is reviewed de novo. Paulman v. Gate-
way Venture Partners III, L.P. (In re Filtercorp, Inc.), 163
F.3d 570, 578 (9th Cir. 1998); see also In re Bullion Reserve,
922 F.2d at 546.
III. ANALYSIS
A. Statutory Framework and the “Dominion” Test
[1] The trustee of a bankrupt debtor’s estate can seek to
avoid and recover preferential transfers pursuant to 11 U.S.C.
§§ 547 and 550. Section 547 reads, in relevant part:
(b) Except as provided in subsections (c) and (i) of
this section, the trustee may avoid any transfer of an
interest of the debtor in property—
(1) to or for the benefit of a creditor;
(2) for or on account of an antecedent debt
owed by the debtor before such transfer
was made;
(3) made while the debtor was insolvent;
(4) made—
(A) on or within 90 days before the date
of the filing of the petition [and] . . . .
(5) that enables such creditor to receive
more than such creditor would receive if—
11718 IN RE INCOMNET, INC.
(A) the case were a case under chapter 7
of this title;
(B) the transfer had not been made; and
(C) such creditor received payment of
such debt to the extent provided by the
provisions of this title.
11 U.S.C. § 547(b) (2000 & Supp. 2005). The trustee, in this
case the Committee, “has the burden of proving the avoida-
bility of the transfer under [11 U.S.C. § 547(b)],” id. § 547(g),
but is aided by a presumption that the debtor is insolvent dur-
ing the ninety days preceding the filing of the Chapter 11 peti-
tion, id. § 547(f). Subsections (c) and (i), which create
exceptions to the provisions of § 547(b), have not yet been
considered by the bankruptcy court and thus are not before us
on appeal.4
[2] When, pursuant to § 547, a trustee avoids a transfer
within ninety days of the debtor’s filing Chapter 11, § 550(a)
provides for recovery from the transferee:
[T]o the extent that a transfer is avoided under sec-
tion [547] . . . , the trustee may recover, for the bene-
fit of the estate, the property transferred, or, if the
court so orders, the value of such property, from—
(1) the initial transferee of such transfer
or the entity for whose benefit such
transfer was made; or
(2) any immediate or mediate transferee
of such initial transferee.
4
Specifically, § 547(i) addresses transfers made for the benefit of insid-
ers, and § 547(c) provides certain exceptions that enable a transferee to
prevent avoidance.
IN RE INCOMNET, INC. 11719
11 U.S.C. § 550(a) (2000). Under § 550(a), “[t]he trustee’s
right to recover from an initial transferee is absolute.” Schafer
v. Las Vegas Hilton Corp. (In re Video Depot, Ltd.), 127 F.3d
1195, 1197-98 (9th Cir. 1997); In re Bullion Reserve, 922
F.2d at 546-47.
Because the bankruptcy court ruled that USAC was not a
transferee, it did not decide whether all of the elements of
§ 547(b) had been met in this case or whether USAC has a
valid defense to avoidance under any other statutory provi-
sion. Thus, the issue before us is a narrow one: Whether
USAC is an “initial transferee.”
[3] Section 550(a) does not define the phrase “initial trans-
feree.” In the absence of a clear statutory definition, two stan-
dards to determine whether a party is an “initial transferee”
have emerged: the “dominion test” and the “control test.”
While the words “dominion” and “control” are synonyms
when used in their lay sense, the “dominion test” and the
“control test,” as originally stated, are not merely different
names for the same inquiry. As we discuss below, the two
tests do differ, and the fact that the dominion test is some-
times stated as an inquiry into who had legal “control” over
funds does not mean that the two standards are indistinguish-
able. While we have not always been careful with our terms,
we have applied the dominion test several times, but have
declined to adopt the control test. See, e.g., Abele v. Modern
Fin. Plans Servs., Inc. (In re Cohen), 300 F.3d 1097, 1102 n.2
(9th Cir. 2002) (“Contrary to the BAP, the district court, and
[appellee’s] contentions, we have not explicitly adopted the
‘control test’ . . . . In this case we again rely exclusively upon
the ‘dominion test’ . . . .”) (emphasis added) (internal citations
omitted); In re Bullion Reserve, 922 F.2d at 548-49 (discuss-
ing both the dominion test and the control test but ultimately
selecting and relying exclusively on the “dominion test”).
Although the resolution of this case does not turn on the ques-
tion of which of these two standards governs in this circuit,
11720 IN RE INCOMNET, INC.
we address this question at some length in an effort to clarify
a somewhat murky area of our jurisprudence.5
Under the dominion test, “a transferee is one who . . . has
‘dominion over the money or other asset, the right to put the
money to one’s own purposes.’ ” In re Cohen, 300 F.3d at
1102 (citing Bonded Fin. Servs. Inc. v. European Am. Bank,
838 F.2d 890, 893 (7th Cir. 1988)); see also In re Video
Depot, Ltd., 127 F.3d at 1198; In re Bullion Reserve, 922 F.2d
at 548. The inquiry focuses on whether an entity had legal
authority over the money and the right to use the money how-
ever it wished. See In re Cohen, 300 F.3d at 1102; Bonded
Fin. Servs., 838 F.2d at 893-94.
The leading case in this area is the Seventh Circuit’s deci-
sion in Bonded Financial Services. In Bonded Financial Ser-
vices, a debtor sent a bank a check payable to the bank’s order
with a note directing the bank to deposit the check into an
account that belonged to Michael Ryan, the person who con-
trolled the debtor. Id. at 891. The bank deposited the check in
Ryan’s account, and Ryan subsequently requested that the
bank debit his account in the amount received in order to
reduce the outstanding balance on a loan he owed to the bank.
Id. The debtor later declared bankruptcy, and the trustee of his
bankruptcy estate sought to avoid the transfer. Id. He argued
that because the bank was the payee of the check, it was the
initial transferee under § 550(a)(1). Id. The Seventh Circuit
held that the bank was not an initial transferee because it
received no benefit from the initial transaction, in which it
acted as a financial intermediary without dominion over the
money. “When A gives a check to B as agent for C, then C
is the ‘initial transferee’; the agent may be disregarded.” Id.
at 893.6 Only after a second and separate transaction, where
5
For example, the bankruptcy court below applied the “dominion or
control” test that it believed we had adopted in In re Bullion Reserve.
6
The Seventh Circuit acknowledged that, at the time, courts had not uni-
formly adopted this interpretation of the statute:
IN RE INCOMNET, INC. 11721
Ryan instructed the bank to debit his account in the amount
of the transfer from the debtor, did the bank have dominion
over the money. Id. at 893-94. The “dominion test” stressed
the ability of the recipient to use the money as it saw fit.
The Eleventh Circuit took a slightly different approach
when it laid out the “control test,” under which courts view
the entire transaction as a whole to determine who truly had
control of the money. See Nordberg v. Societe Generale (In
re Chase & Sanborn Corp.), 848 F.2d 1196, 1199 (11th Cir.
1988). In that case, the trustee sought to avoid a fraudulent
transfer made to a bank to cover an overdrafted account. See
id. at 1197-98. The Eleventh Circuit stated that “[t]he control
test . . . simply requires courts to step back and evaluate a
transaction in its entirety to make sure that their conclusions
are logical and equitable.”7 Id. at 1199. The court concluded
that the bank’s transaction did not fall within the scope of
avoidable transfers because it acted as a conduit. Id. at 1201-
02. The “control test” was born out of the statement that “the
We are aware that some courts say that an agent (or a bank in
a case like ours) is an “initial transferee” but that courts may
excuse the transferee from repaying using equitable powers. This
is misleading. “Transferee” is not a self-defining term; it must
mean something different from “possessor” or “holder” or
“agent”. To treat “transferee” as “anyone who touches the
money” and then to escape the absurd results that follow is to
introduce useless steps; we slice these off with Occam’s Razor
and leave a more functional rule.
Id. at 894 (citations omitted).
7
It is interesting to note just how starkly the Eleventh Circuit’s reliance
on equity, exemplified by the direct incorporation of equitable principles
into the control test, contrasts with the approach taken by the Seventh Cir-
cuit in Bonded Financial Services. In its opinion, the Seventh Circuit
expressed concern over “the use of equitable powers under § 550(a)” by
a number of bankruptcy courts and remarked on “the propriety of judges’
declining to enforce statutes that produce inequitable results.” 838 F.2d at
894. The court also expressed dismay at courts using equity to relieve cer-
tain actors from a literal construction of § 550. Id.
11722 IN RE INCOMNET, INC.
outcome of the cases turn on whether the banks actually con-
trolled the funds or merely served as conduits, holding money
that was in fact controlled by either the transferor or the real
transferee.” Id. at 1200.
A number of circuits combined these tests—or at least
combined their names—creating a “dominion and control
test” to determine whether a party is an initial transferee. See,
e.g., Bailey v. Big Sky Motors, Ltd. (In re Ogden), 314 F.3d
1190, 1202 (10th Cir. 2002) (applying the “dominion and
control test” of Bonded Financial Services, while also citing
to In Re Chase & Sanborn Corp.); Christy v. Alexander &
Alexander of N.Y. Inc. (In re Finley, Kumble, Wagner, Heine,
Underberg, Manley, Myerson & Casey), 130 F.3d 52, 57-58
(2d Cir. 1997) (stating that in In re Chase & Sanborn Corp.,
the Eleventh Circuit had adopted the logic of the Seventh Cir-
cuit in Bonded Financial Services, and “join[ing] these other
circuits in adopting the ‘mere conduit’ test”); Bowers v.
Atlanta Motor Speedway, Inc. (In re Se. Hotel Props. Ltd.), 99
F.3d 151, 156 (4th Cir. 1996) (“[W]e explicitly adopt the
dominion and control test as set forth in Bonded [Financial
Services]. We hold further that this test requires that in order
to constitute the ‘initial transferee’ of property under § 550(a)
of the Bankruptcy Code, a person or entity must have exer-
cised legal dominion and control over the property.”); Sec.
First Nat’l Bank v. Brunson (In re Coutee), 984 F.2d 138,
140-41 (5th Cir. 1993) (relying on both Bonded Financial
Services and In re Chase & Sanborn Corp. in adopting the
“dominion or control” test); First Nat’l Bank of Barnesville v.
Rafoth (In re Baker & Getty Fin. Servs., Inc.), 974 F.2d 712,
722 (6th Cir. 1992) (quoting a party’s characterization of
Bonded Financial Services as establishing a “dominion or
control” test and applying same).
[4] Thus, we see that while the two inquiries are similar,
they are not indistinguishable: The dominion test focuses on
whether the recipient of funds has legal title to them and the
ability to use them as he sees fit. See Bonded Fin. Servs., 838
IN RE INCOMNET, INC. 11723
F.2d at 893-94. The control test takes a more gestalt view of
the entire transaction to determine who, in reality, controlled
the funds in question. In re Chase & Sanborn Corp., 848 F.2d
at 1199. Since we have explicitly adopted the “more restric-
tive ‘dominion test,’ ” set out in Bonded Financial Services,
In re Cohen, 300 F.3d at 1102 n.2, we take care not to apply
the more lenient “control test” put forth in In re Chase & San-
born Corp.
B. Application of the Dominion Test to USAC
We next consider USAC and the FCC’s legally prescribed
roles in the administration of the USF. While we recognize
that the FCC does hold substantial power over the fund indi-
rectly, essentially by overseeing USAC, we also recognize
that it has no ability to control the USF through direct seizure
or discretionary spending. We hold that USAC, which, as
administrator of the USF, has discretion over if, when, and
how it disburses universal service funds to beneficiaries,
holds dominion over the USF. Accordingly, we hold that
USAC is the initial transferee and affirm the judgment of the
BAP.
USAC has a board of directors (“Board”) and a chief exec-
utive officer. Both telecommunications carriers and USF ben-
eficiaries submit nominations for the Board to the Chairman
of the FCC, who selects USAC’s directors. 47 C.F.R.
§ 54.703(c). The Board nominates USAC’s chief executive
officer by consensus, but he must be approved by the Chair-
man of the FCC. Id. § 54.704(b). FCC regulations establish
Board committees that oversee USAC’s distribution of the
USF to various categories of beneficiaries. Id. § 54.705.
The FCC has responsibility for implementing and regulat-
ing the collection and distribution of the USF. See Tex. Office
of Pub. Util. Counsel v. FCC, 183 F.3d 393, 406 (5th Cir.
1999); see also 47 U.S.C. § 254(a) (2000); cf. In re LAN Tam-
ers, Inc., 329 F.3d at 206. The FCC specifies eligibility
11724 IN RE INCOMNET, INC.
requirements for universal service support funds and estab-
lishes policy. See, e.g., 47 C.F.R. § 54.101 (listing supported
services for rural, insular, and high-cost areas); id. § 54.201
(generally defining eligible telecommunications carriers); id.
§ 54.202 (listing additional eligibility requirements for tele-
communications carriers); see also id. § 54.702(c) (requiring
USAC to seek guidance from the FCC when the Telecommu-
nications Act or rules that it must follow are unclear). The
FCC must approve USAC’s total projected expenses and bud-
get on a quarterly basis. Id. § 54.709(a)(3).
USAC is prohibited from “mak[ing] policy, interpret[ing]
unclear provisions of the statute or rules, or interpret[ing] the
intent of Congress.” Id. § 54.702(c). “Where the [provisions
of the Telecommunications Act] or the [FCC’s] rules are
unclear, or do not address a particular situation, [USAC must]
seek guidance from the [FCC].” Id. The FCC retains the
authority to overrule USAC’s actions in administering the
universal service support funds; those who are aggrieved by
USAC, its committees, or its Board may seek review from the
FCC. Id. § 54.719(c).
Telecommunications carriers’ contributions to USAC are
based both on the end-user telecommunications revenues they
report to the FCC and on a “contribution factor” that the FCC
determines quarterly. Id. § 54.709(a). USAC calculates the
payment due from each individual carrier by multiplying that
carrier’s revenues by the FCC-approved quarterly contribu-
tion factor. See id. § 54.709(a)(3). If a carrier fails to make
timely payments, USAC generates an invoice for the amount
of the required contribution and sends it to the carrier. Id.
§ 54.713.
USAC takes legal title to the contributions it receives from
carriers and deposits them into the USF, then disburses funds
to subsidize the provision of service to libraries, schools, rural
areas, and high-cost areas. USAC requires potential beneficia-
ries to fill out the correct forms, meet deadlines, and receive
IN RE INCOMNET, INC. 11725
proper certification; USAC is prohibited from subsidizing
entities that are not certified or that do not meet specific
criteria. Id. §§ 54.313, 314 (high-cost support certification and
criteria); id. § 54.501 (eligibility requirements for schools and
libraries); id. § 54.601 (eligibility requirements for rural
health care providers). FCC regulations require USAC to file
an annual report with the FCC and Congress that includes
information on operations, activities, participation, adminis-
trative costs, and payments. Id. § 54.702(g). USAC is also
required to consult with FCC staff regarding the scope and
content of its annual report. Id.
Citing the restrictions under which it operates and its con-
comitant limited discretion, USAC contends that it was a
mere conduit for the contributions it received from Incomnet.
It then points to our statement in In re Bullion Reserve that “it
would be ‘inequitable’ to allow recovery against an entity
merely because it had ‘technically . . . received the funds
. . . ,’ if the entity had ‘never actually controlled the funds.’ ”
922 F.2d at 549 (omissions in original) (quoting In re Chase
& Sanborn Corp., 848 F.2d at 1200). USAC argues that
because it merely possessed the funds in accordance with fed-
eral law, serving as a conduit to telecommunications carriers
that provide service to FCC-designated beneficiaries, it is not
an initial transferee. It maintains that it did not acquire “do-
minion over the money . . . [or] the right to put the money to
[its] own purposes,” and was not “free to invest the whole
[amount] in lottery tickets or uranium stocks.” Bonded Fin.
Servs., 838 F.2d at 893-94. USAC claims that its status as a
mere conduit renders Incomnet’s universal service support
payments unavoidable; therefore, the Committee is not enti-
tled to reimbursement.
The Committee argues that since USAC holds legal title to
the funds and deposits the USF into its own bank accounts, it
satisfies the plain meaning of “transferee” and the Committee
has carried its burden.8 The Committee argues that USAC
8
The Committee further argues that the “dominion and control” defense
(or, more appropriately, the “conduit defense”) is an equitable affirmative
11726 IN RE INCOMNET, INC.
cannot be a conduit when its administrator has the right to use
the money collected to accomplish the purposes of the fund.
The Committee also asserts that even though USAC is subject
to federal regulations that dictate how the USF is to be dis-
bursed, these regulations do not make USAC a mere conduit
entitled to avoid transferee liability.
We agree with the BAP that USAC is a “transferee” for
purposes of 11 U.S.C. §§ 547 and 550. USAC is neither an
agent nor a mere conduit for some other party; indeed, three
months after Incomnet filed for Chapter 11 protection, USAC
filed its own proof of claim as a creditor for more than
$500,000 in additional universal service obligations owed
under the Telecommunications Act.9 As USAC conceded
before the bankruptcy court, it holds legal title to the funds in
the USF accounts.
[5] The dominion test we have crafted strongly correlates
with legal title. In In re Cohen, we described “[d]ominion . . .
[as] akin to legal control (e.g., the right to invest the funds as
one chooses)” and distinguished this from “mere possession.”10
In re Cohen, 300 F.3d at 1102. In the vast majority of cases,
possessing legal title to funds will equate to having dominion
over them.11 The focus on “dominion” is useful for those
defense, and that USAC bears the burden of proving this defense applies.
We decline to adopt this view. The clear language of 11 U.S.C. § 547(g)
states that “the trustee has the burden of proving the avoidability of a
transfer under [§ 547(b)].”
9
It is not obvious that USAC could assert such a claim against Incomnet
if, as USAC argues, it were only a “mere conduit.”
10
The fact that the dominion test is sometimes stated as an inquiry into
who had legal “control” over funds does not mean that the dominion test
is the same as the control test. As we have discussed above, the two tests
do differ, and when control is used in the context of stating the dominion
test, it is merely used in its lay sense.
11
We are sympathetic to the BAP’s concerns that, by focusing on
whether a party had dominion over funds, courts may lose track of the
IN RE INCOMNET, INC. 11727
unusual situations in which legal title to funds and the right
to put those funds to use have been separated. There are two
primary cases when this may occur: (1) when an entity has
legal title as a formal matter, but legally does not have any
discretion in the application of funds; and (2) when an entity
does not possess legal title, but nevertheless has sufficient
authority over the funds to direct their disbursement.
To illustrate the first case, consider a bank that receives
currency from a depositor with instructions to deposit those
funds into the account of a third party. In such a case, the
bank will initially take title over the depositor’s funds, but it
will not have dominion over them because it has no discretion
over the uses to which the depositor’s money is to be put.
Thus, the bank is not the transferee, but the conduit or agent
for a general deposit.12
original question proposed by the statute—namely, whether a party is a
transferee. Cases involving financial intermediaries—or, as the BAP calls
them, “conduit cases”—are the most likely to fall into the narrow set of
circumstances where the identity of the transferee is sufficiently unclear
as to require the application of the dominion test. This observation not-
withstanding, the dominion test remains a test to determine whether a
recipient of funds is a transferee for purposes of the bankruptcy code, and
this inquiry is not limited to the context of “conduit cases.”
12
If the third party subsequently gives that money to the bank to reduce
its own debt, the bank will then have dominion and legal title, but in such
a case the bank is a transferee of funds from the third party, not from the
initial depositor. See Bonded Fin. Servs., 838 F.2d at 892-94 (distinguish-
ing the case of a bank receiving a check from a depositor with instructions
to reduce the balance of a third party’s loan to the bank from the case of
a bank receiving a check with instructions to deposit it into the account of
a third party who subsequently orders the bank to debit the account to
reduce a loan he owes to the bank). See generally Parker v. Cmty. First
Bank (In re Bakersfield Westar Ambulance, Inc.), 123 F.3d 1243, 1246
(9th Cir. 1997) (“By depositing money into a bank account, the depositor
enters a debtor-creditor relationship with the bank. Title to the funds
passes to the bank, and the depositor receives a contract claim against the
bank for an amount equal to the account balance.” (citations omitted));
MICHIE ON BANKS AND BANKING ch. 9, § 38 (Matthew Bender & Co. eds.)
(2003) (“When [an] account holder makes a deposit into [a] bank account,
title to the money is transferred to the bank and [a] creditor-debtor rela-
tionship is formed.”).
11728 IN RE INCOMNET, INC.
The second scenario, where an entity lacks legal title to
funds, but nevertheless has power over them, may be illus-
trated by a trustee who is able to direct the disbursement of
the funds in a trust account he manages, even though he does
not own them. Such a trustee would therefore exercise domin-
ion over the funds without holding title to them. See Kupetz
v. United States (In re Cal. Trade Technical Sch., Inc.), 923
F.2d 641, 649 (9th Cir. 1991) (“[T]reating a transfer to [the
Department of Education’s (‘DOE’)] trust fund as equivalent
to a transfer to DOE is entirely consistent with the Seventh
Circuit’s decision in Bonded Financial Services . . . .” ); id.
(“Our treatment of the . . . transfer to the trust as a transfer to
or for the benefit of DOE under section 547(b)(1) renders
DOE an initial transferee, or an entity for whose benefit the
initial transfer was made under section 550(a)(1).”).
[6] USAC is the designated administrator of the USF. 47
C.F.R. §§ 54.5, 54.701(a), § 54.801 (2005). While the FCC
has substantial authority to determine USAC’s budget and
approve its disbursements, see id. § 54.709(a)(3), USAC is
not simply holding funds in the USF as the FCC’s agent. The
FCC only exercises power over the fund indirectly, essentially
by overseeing USAC; it has no ability to control the funds in
the USF through direct seizure or discretionary spending. See
id. § 54.715(c) (“[USAC] shall submit to the [FCC] projected
quarterly budgets at least sixty (60) days prior to the start of
every quarter. The [FCC] must approve the projected quar-
terly budgets before [USAC] disburses funds under the fed-
eral universal service support mechanisms.”); cf. Richardson
v. FDIC (In re M. Blackburn Mitchell, Inc.), 164 B.R. 117,
125 (Bankr. N.D. Cal. 1994) (“The FDIC obtained full
dominion and control over the funds with the right to put the
money to its own purposes; it was not holding those funds in
trust, or as agent, for any other party.”); id. at 130 (“The FDIC
had full use of those funds for its own account.”).
[7] Nor is USAC a mere conduit of universal support funds
to the carriers who provide telecommunications services to
IN RE INCOMNET, INC. 11729
the beneficiaries of the Telecommunications Act. Although
USAC is obligated by law to spend those funds for desig-
nated, highly regulated purposes, USAC is neither the agent
of, nor a trustee for, carrier recipients. USAC is charged with
establishing a budget that meets the purpose of the statute, but
neither the specific recipients nor the specific beneficiaries are
named in that statute. See 47 U.S.C. § 254 (2000); 47 C.F.R.
§ 54.101 (2005) (specifying requirements carriers must meet
to be eligible to receive USF disbursements); id. §§ 54.301-
.316, 54.400-.417, 54.500-.523, 54.600-.625 (specifying eligi-
bility requirements for USF beneficiaries).
[8] Similarly, USAC has not established that there is any
binding legal relationship between it and any of the USF’s
beneficiaries. The statute establishing the universal service
support contributions and the regulations implementing the
statute do not name specific beneficiaries of the USF, nor do
they designate USAC to be a mere agent of these beneficia-
ries, charged with funneling telecommunications carriers’
contributions to them. Federal law obligates carriers to pay
their contributions to USAC, which then distributes them pur-
suant to its legal mandate; carriers do not pay the universal
service beneficiaries through USAC. USAC is a distinct legal
entity that takes control over the funds, pools them together,
and distributes them; it is more than a mere conduit for contri-
butions.
[9] Finally, it is of no consequence that USAC cannot
invest funds in—to use the Seventh Circuit’s colorful phrase
—“lottery tickets or uranium stocks.” See Bonded Fin. Servs.,
Inc., 838 F.2d at 894. Here, USAC received the funds from
Incomnet without any restrictions from Incomnet on their use.
USAC commanded those funds and, like other individuals, its
use of those funds was restricted by law. These legal restric-
tions merely limit how USAC will exercise its dominion over
the funds; they do not preclude USAC from having dominion
at all.
11730 IN RE INCOMNET, INC.
In cases from within our circuit, other government entities
have been found to be initial transferees even though they
were subject to statutes and regulations governing their use of
the funds given them. For example, in In re California Trade
Technical Schools, Inc., 923 F.2d 641, California Trade Tech-
nical Schools (“CTTS”) received federal financial aid funds
from the Department of Education. CTTS was obligated to
hold these funds in trust for student recipients, but it improp-
erly diverted them to operating expenses. The Department of
Education demanded return of the diverted funds. See id. at
645. When CTTS made payments to the Department of Edu-
cation to correct this, we treated the department as the initial
transferee of the repaid funds, even though the funds might be
obligated to specific students in the future. Id. at 647 & n.9.
Similarly, in In re M. Blackburn Mitchell, Inc., 164 B.R. at
130, and Kupetz v. United States (In re Williams), 104 B.R.
296, 298 (Bankr. C.D. Cal. 1989), debtors had made pay-
ments to the FDIC and the IRS, respectively, and bankruptcy
courts in California found these agencies to be initial transfer-
ees under 11 U.S.C. § 550(a)(1).
Each of these entities—the Department of Education, the
FDIC, and the IRS—was unable to “purchase lottery tickets
or uranium stocks” with its funds because of government reg-
ulations, yet this did not prevent courts from holding that each
was an initial transferee under 11 U.S.C. § 550(a)(1). Thus,
the fact that USAC can only spend the USF in accordance
with certain federal regulations does not necessarily mean that
it is not a transferee. USAC sets its own budget and, subject
to FCC approval, it has wide discretion. Although it can only
choose its beneficiaries from a limited menu of entities, and
the FCC has some veto power over its budget, USAC, as
administrator of the USF, decides if, when, and how it dis-
burses funds on behalf of the USF’s beneficiaries. See 47
C.F.R. §§ 54.701(a), 54.704(a), 54.705, 54.715 (2005).
[10] In sum, some entity must have dominion over the
USF; we hold that USAC is this entity. Because USAC had
IN RE INCOMNET, INC. 11731
dominion over the USF, we hold that it had dominion over
Incomnet’s universal service support contributions and that it
is therefore a transferee under 11 U.S.C. § 550(a)(1).
IV. CONCLUSION
We affirm the judgment of the BAP, and hold that USAC
is a transferee under 11 U.S.C. §§ 547 and 550(a)(1). We
remand to the bankruptcy court for further proceedings.
AFFIRMED.