Nichols v. Birdsell ( 2007 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JAMES NICHOLS; BEVERLY ANN 
NICHOLS, No. 05-15554
Plaintiffs-Appellants,
v.  D.C. No.
CV-04-00099-DGC
DAVID A. BIRDSELL, OPINION
Defendant-Appellee.

Appeal from the United States District Court
for the District of Arizona
David G. Campbell, District Judge, Presiding
Argued and Submitted
February 16, 2007—San Francisco, California
Filed May 9, 2007
Before: J. Clifford Wallace, Richard D. Cudahy,* and
M. Margaret McKeown, Circuit Judges.
Opinion by Judge Wallace
*The Honorable Richard D. Cudahy, Senior United States Circuit Judge
for the Seventh Circuit, sitting by designation.
5401
NICHOLS v. BIRDSELL 5403
COUNSEL
Michael J. Fatta, Law Office of Michael J. Fatta, PLLC, Glen-
dale, Arizona, for the plaintiffs-appellants.
Terry A. Dake, Terry A. Dake, LTC., Phoenix, Arizona, for
the defendant-appellee.
OPINION
WALLACE, Senior Circuit Judge:
This case presents a new issue for our court: whether debt-
ors’ pre-bankruptcy application of their right to tax refunds to
post-bankruptcy tax obligations constitutes an asset that must
be turned over to the bankruptcy trustee pursuant to the Bank-
ruptcy Code, 11 U.S.C. § 542. Plaintiffs-Appellants James W.
Nichols and Beverly Nichols (Debtors) appeal from the dis-
trict court’s order denying their appeal from the bankruptcy
court decision. In the underlying case, the bankruptcy court
concluded that the pre-petition application of the right to the
tax refund was an asset as of the petition date, and that the
Debtors must therefore deliver to the trustee the value of the
property under section 542(a). We agree, and affirm the dis-
trict court’s order denying the Debtors’ appeal.
I.
David A. Birdsell, the trustee of the Debtors’ bankruptcy
estate (Trustee), filed an amended complaint in the United
States Bankruptcy Court alleging a claim in the Debtors’
interest in tax overpayments. The facts are not in dispute. The
Debtors overpaid their 2001 federal and state income tax
returns and were entitled to tax refunds as a result of the over-
payments. Rather than obtain a current refund of that money,
the debtors elected to leave those funds on deposit with the
5404 NICHOLS v. BIRDSELL
United States and the State of Arizona, respectively, and
apply the overpayments to their future tax liability. Sixteen
days later, on February 5, 2002, the Debtors filed for bank-
ruptcy. The Trustee demanded that the Debtors turn the
deposits over to the Trustee, but this was not done. In Febru-
ary of 2003, the Debtors signed their 2002 federal and state
income tax returns and applied the deposits (resulting from
the overpayment of their 2001 taxes) to their 2002 tax liabili-
ties.
The Trustee moved for partial summary judgment on the
amended complaint, arguing that the Debtors’ interest in the
tax overpayments was property of the bankruptcy estate pur-
suant to 11 U.S.C. § 541 that must be turned over to the
Trustee under section 542. The Debtors opposed the motion
and also moved for summary judgment. The Debtors
observed that, after making the election, they were no longer
entitled to a tax refund. They contended that the election to
apply the deposits to future tax liabilities extinguished their
interest in the tax refund and left no property interest for the
bankruptcy estate.
The bankruptcy court granted the Trustee’s motion for
summary judgment, concluding that the Debtors’ prepayment
of their tax liability constituted an asset of the estate as of the
petition date, and that the Debtors must deliver to the Trustee
the value of that asset under section 542(a). The Debtors
appealed to the district court, and the district court denied the
appeal.
On appeal to this court, the Debtors argue that their pre-
bankruptcy application of their tax overpayment to the subse-
quent year’s tax obligation was not property of their bank-
ruptcy estate. They observe that Internal Revenue Code
§§ 6402(b) and 6513(d) provide for a taxpayer to make an
irrevocable election applying an overpayment of taxes to the
subsequent year’s tax obligation. They further contend that
the election changed the character of the overpayment to a
NICHOLS v. BIRDSELL 5405
payment of estimated taxes, leaving no interest for the bank-
ruptcy estate.
We have jurisdiction under 28 U.S.C. § 1291, and review
de novo the district court’s decision on an appeal from a
bankruptcy court. See In re Bankr. Estate of MarkAir, Inc.,
308 F.3d 1057, 1059 (9th Cir. 2002). The bankruptcy court’s
conclusions of law are reviewed de novo, and its factual find-
ings for clear error. Id. We review de novo questions of statu-
tory construction. See id.
II.
Section 542 provides in part,
Except as provided in subsection (c) or (d) of this
section, an entity, other than a custodian, in posses-
sion, custody, or control, during the case, of property
that the trustee may use, sell, or lease under section
363 of this title, or that the debtor may exempt under
section 522 of this title, shall deliver to the trustee,
and account for, such property or the value of such
property, unless such property is of inconsequential
value or benefit to the estate.
11 U.S.C. § 542(a). Section 541 defines property as “all legal
or equitable interests of the debtor in property as of the com-
mencement of the case.” 11 U.S.C. § 541(a)(1).
In In re Feiler, 218 F.3d 948 (9th Cir. 2000), we addressed
an analogous issue under the Bankruptcy Code. The Feilers
had net operating losses (NOLs) in 1993. Id. at 950. Under the
tax code at that time, they had two options: (1) carry back the
NOLs and apply them to the past three taxable years, carrying
forward any remainder; or (2) waive the carryback provision
and carry forward the entire NOLs. Id. at 950-51. Under the
first option, applying the NOLs to the past years would result
in a current tax refund to the debtors. Carrying forward the
5406 NICHOLS v. BIRDSELL
NOLs under the second option could result in a reduction of
tax liability in future years, since the NOLs could be used to
offset future income.
The Feilers chose the second option, to waive the carry-
back. Id. at 951. Had they chosen the first option, they would
have been entitled to a tax refund of over $280,000. Id. The
following year, five months after making the election, the
Feilers declared bankruptcy. Id. The bankruptcy trustee filed
income requests for the tax refund that the Feilers would have
received had they chosen the first option. Id. The Internal
Revenue Service (IRS) disallowed the refund on the grounds
that the Feilers had made an irrevocable election to carry for-
ward the NOLs. Id. The trustee filed suit against the govern-
ment, seeking to set aside the Feilers’ previous election under
section 548, a code section that involves fraudulent transfers.
Id. The bankruptcy court granted summary judgment in favor
of the bankruptcy trustee, and we affirmed. Id.
Feiler is different from this case in that it involved an elec-
tion relating to NOLs, and not a prepayment of taxes. Id. at
950. In addition, the issue in Feiler was whether the debtors’
irrevocable election should be set aside under section 548, not
section 542. Id. at 951. Under section 548, the trustee may
avoid certain fraudulent transfers of an “interest of the debtor
in property” that were “made or incurred on or within 2 years
before the date of the filing of the petition.” 11 U.S.C.
§ 548(a)(1). In contrast, the issue in the instant case is
whether the prepayment of taxes constitutes estate property
under section 542 at the time of the bankruptcy filing. Thus,
Feiler is not dispositive.
[1] Our reasoning in Feiler is nevertheless instructive.
Feiler stated that the first issue was whether “the election to
forgo a tax refund and waive the carryback on the NOLs
involved an interest in property.” 218 F.3d at 955 (quotation
marks omitted). Interpreting the term “property” broadly, we
held that “[b]ecause the right to receive a tax refund consti-
NICHOLS v. BIRDSELL 5407
tutes an interest in property, . . . the election to waive the car-
ryback and relinquish the right to a refund necessarily
implicates a property interest.” Id. We observed that “the
Supreme Court has explained that the term property has been
construed most generously and an interest is not outside its
reach because it is novel or contingent or because enjoyment
must be postponed.” Id. (internal quotation marks omitted)
(citing Segal v. Rochell, 382 U.S. 375, 379 (1966)).
[2] The Debtors contend that their inability to get the funds
back from the IRS and the irrevocable nature of their election
prevents the bankruptcy estate from asserting any right to the
funds. However, nothing in section 541 requires that the debt-
or’s interest be immediately capable of being liquidated into
cash in order to constitute property of the estate. See 11
U.S.C. § 541. Instead, section 541(c)(1) provides that a debt-
or’s interests become property of the estate even in circum-
stances in which the interest cannot be liquidated and
transferred by the debtor. 11 U.S.C. § 541(c)(1); cf. In re
O’Gorman-Sykes, 245 B.R. 815, 819 (Bankr. E.D. Va. 1999)
(holding that anticipated tax refunds are property of the bank-
ruptcy estate under section 541(a)).
[3] As a result of the election, the Debtors were left with
a credit with the IRS that provided a dollar-for-dollar tax
reduction in the following year. If the Nichols had not elected
to prepay their taxes, those funds would have been refunded
to them and would likely have been available for the bank-
ruptcy estate when they voluntarily filed for bankruptcy just
16 days later. The fact that the election, once made, was irrev-
ocable, does not change the analysis. In light of the expansive
definition of property contained in the Bankruptcy Code and
our broad interpretation of “property” under Feiler, we hold
that this credit toward future taxes constituted estate property
at the time the Debtors filed for bankruptcy. Cf. In re Ryerson,
739 F.2d 1423, 1425 (9th Cir. 1984) (“By including all legal
interests without exception, Congress indicated its intention to
include all legally recognizable interests although they may be
5408 NICHOLS v. BIRDSELL
contingent and not subject to possession until some future
time”).
AFFIRMED.