Gaughan v. Costas , 555 F.3d 790 ( 2009 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
In re: JOHN M. COSTAS and 
RACHELLE M. COSTAS,
Debtors.
No. 06-16520
MAUREEN GAUGHAN, CHAPTER 7
TRUSTEE,  BAP No.
AZ-05-1440
Appellant,
OPINION
v.
THE EDWARD DITTLOF REVOCABLE
TRUST, and RACHELLE M. COSTAS,
Appellees.

Appeal from the Ninth Circuit
Bankruptcy Appellate Panel
Montali, Smith, and Ahart, Bankruptcy Judges, Presiding
Argued and Submitted
May 15, 2008—San Francisco, California
Filed February 6, 2009
Before: Andrew J. Kleinfeld, N. Randy Smith, Circuit
Judges, and Richard Mills, District Judge.*
Opinion by Judge Mills
*The Honorable Richard Mills, United States District Judge for the
Central District of Illinois, sitting by designation.
1379
IN RE COSTAS 1381
COUNSEL
Paul Sala, Allen & Sala, P.L.C., Phoenix, Arizona, for the
appellant.
Mark A. Bregman, Bregman & Burt, Scottsdale, Arizona, for
the appellees.
OPINION
MILLS, District Judge:
The Bankruptcy Code’s federal fraudulent conveyance pro-
vision allows a trustee to avoid “any transfer . . . of an interest
of the debtor in property” within a two year reach back period
where the transfer was actually or constructively fraudulent.
11 U.S.C. § 548(a)(1). The question in this case is whether an
Arizona disclaimer qualifies as a “transfer . . . of an interest
1382 IN RE COSTAS
of the debtor in property.” Because we answer this question
in the negative, the Bankruptcy Appellate Panel’s refusal to
avoid the disclaimer under § 548 is affirmed.
I. FACTS
On October 18, 2001, Edward P. Dittlof (“Dittlof”) created
the Edward Dittlof Revocable Trust (“Trust”) under Arizona
law. The Trust provided that upon Dittlof’s death, the Trust
property would be distributed to several of Dittlof’s children,
including Rachelle Costas (“Costas”). Should a beneficiary
die prior to distribution, the beneficiary’s children would take
the share.
Dittlof died on February 25, 2002, leaving Costas an inter-
est worth at least $34,800. Costas, however, refused to accept
it and, on November 7, 2002, executed a disclaimer under
Arizona law to relinquish her claims to the Trust property.
Shortly thereafter, on December 3, 2002, Costas filed a vol-
untary petition for relief under Chapter 7 of the Bankruptcy
Code (“the Code”). Maureen Gaughan, the Chapter 7 trustee
(“Trustee”), sought to avoid Costas’ disclaimer of the Trust
property under 11 U.S.C. § 548. Although a previous BAP
panel decision had rejected application of § 548 to similar
state law disclaimers, Wood v. Bright (In re Bright), 241 B.R.
664 (9th Cir. BAP 1999), the Trustee argued that the ruling
had been undermined by the Supreme Court’s decision in
Drye v. United States, 528 U.S. 49 (1999). The Bankruptcy
court, however, found Drye distinguishable. The Trustee
appealed and, in a thorough opinion, the BAP also distin-
guished Drye and adhered to its prior decision in Bright.
Gaughan v. Costas (In re Costas), 346 B.R. 198 (9th Cir.
2006). The Trustee now appeals from this decision.
II. STANDARD OF REVIEW
“On appeal this court reviews decisions of the BAP de
novo, and thus reviews the bankruptcy court’s decision under
IN RE COSTAS 1383
the same standards used by the BAP.” Sigma Micro Corp. v.
Healthcentral.com (In re Healthcentral.com), 504 F.3d 775,
783 (9th Cir. 2007) (citation and internal quotations omitted).
Therefore, factual findings are reviewed for clear error and
legal conclusions de novo. Id.III. ANALYSIS
The federal fraudulent conveyance provision of the Code
provides that “[t]he trustee may avoid any transfer . . . of an
interest of the debtor in property . . . that was made . . . within
two years before the date of the filing of the petition . . .”
where the transfer involved actual or constructive fraud. 11
U.S.C. § 548(a)(1).1 The parties dispute whether a disclaimer
executed under Arizona law qualifies as a “transfer . . . of an
interest of the debtor in property.”
A. “Property” and Arizona Disclaimer Law
[1] We begin with the two relevant and disputed terms from
§ 548: “transfer” and “property” (or, more broadly, “an inter-
est . . . in property”). The Code defines “transfer” expan-
sively, reaching “each mode, direct or indirect, absolute or
conditional, voluntary or involuntary of disposing of or part-
ing with — (i) property; or (ii) an interest in property.” 11
1
The Code also contains a provision allowing the trustee to “borrow” a
state’s fraudulent conveyance provision. 11 U.S.C. § 544(b). Most courts,
however, have held that state fraudulent transfer rules do not reach dis-
claimers that relate back. See, e.g., Essen v. Gilmore, 259 Neb. 55, 607
N.W.2d 829 (2000) (“[I]t is the majority view that a renunciation under
the applicable state probate code is not treated as a fraudulent transfer of
assets under the [Uniform Fraudulent Transfers Act], and creditors of the
person making a renunciation cannot claim any rights to the renounced
property in the absence of an express statutory provision to the contrary.”);
Sara L. Johnson, Annotation, Creditor’s right to prevent debtor’s renunci-
ation of benefit under will or debtor’s election to take under will, 39
A.L.R.4th 633 (1985); see also In re Popkin & Stern, 223 F.3d 764, 768-
69 (8th Cir. 2000) (analyzing Missouri law under § 544(b) and concluding
that a disclaimer could not be avoided as a fraudulent transfer).
1384 IN RE COSTAS
U.S.C. § 101(54). Whether a particular action constitutes a
“transfer” is a matter of federal law. Walker v. First Security
Bank of Idaho, N.A. (In re Walker), 77 F.3d 322, 323 (9th Cir.
1996) (quoting Barnhill v. Johnson, 503 U.S. 393, 397
(1992)). However, as the definition makes clear, a “transfer”
cannot occur without “property” or “an interest in property.”
See § 101(54). Thus, the key issue in the case is elucidating
the meaning of “an interest . . . in property.” See Frierdich v.
Mottaz, 294 F.3d 864, 867 (7th Cir. 2002) (“Although the def-
inition of transfer is obviously federal, its references to ‘prop-
erty’ and ‘interests in property’ require an analysis of whether
a property interest was created under state law.”)
[2] The Code does not define “property” or “an interest . . .
in property.” Rather, “Congress has generally left the determi-
nation of property rights in the assets of a bankrupt’s estate
to state law,” Butner v. United States, 440 U.S. 48, 54 (1979),
meaning that “[i]n the absence of any controlling federal law,
‘property’ and ‘interests in property’ are creatures of state
law.” Barnhill, 503 U.S. at 398 (citations omitted). Therefore,
to understand the definition and scope of “property,” we turn
to Arizona law.
[3] Like other states, Arizona allows beneficiaries to
renounce their interests in trusts through use of a disclaimer.
See Az. Rev. Stat. § 14-2801 (2004) (repealed).2 A “disclaimer”3
2
Effective 2005, Arizona repealed § 14-2801 in favor of a statute based
on the Uniform Disclaimer of Property Interest Act (1999) (now incorpo-
rated into the Uniform Probate Code as Section 11). Although the Uniform
Act dropped the phrase “relation back”, it did not discard its application.
See Uniform Probate Code § 2-1106, cmt. (“This Act continues the effect
of the relation back doctrine, not by using the specific words, but by
directly stating what the relation back doctrine has been interpreted to
mean.”).
3
Statutes also frequently refer to a “disclaimer” as a “renunciation.” See,
e.g., Mapes v. United States, 15 F.3d 138, 140 (9th Cir. 1994), abrogated
by Drye v. United States, 528 U.S. 49 (1999) (construing “renunciation”
under a prior version of § 14-2801).
IN RE COSTAS 1385
has been defined as “the refusal to accept an interest in or
power over property.” Uniform Disclaimer of Property Inter-
ests Act § 2(3) (1999). At all relevant times, Arizona law
required disclaimers to be filed with the court and a represen-
tative or fiduciary of the decedent “not later than nine
months” after the effective date of the instrument. Az. Rev.
Stat. § 14-2801(B), (C) (testamentary and non-testamentary,
respectively). The disclaimer itself also had to “describe the
property or interest disclaimed, declare the disclaimer and its
extent and be signed by the disclaimant.” § 14-2801(F).
Where the beneficiary had previously made “[a]n assignment,
conveyance, encumbrance, pledge or transfer of the property
or interest or a contract” or accepted certain benefits or inter-
ests in the property, the right to disclaim was barred. § 14-
2801(J), (M). The Trustee concedes the validity of Costas’
disclaimer under Arizona law. Costas, 346 B.R. at 200.
[4] A properly executed disclaimer carries a significant
advantage for an insolvent debtor: it shields the disclaimed
interest from the disclaimant’s creditors. Arizona achieved
this protection through § 14-2801(G), which provides that
“[a] disclaimer relates back for all purposes to the date of
death of the decedent.” This relation-back rule, a common
feature in many states, is a legal fiction that retroactively
eliminates any property interest that a disclaimant previously
held in the disclaimed property. As the Supreme Court has
explained, “an effective disclaimer . . . relate[s] back to the
moment of the original transfer of the interest being dis-
claimed, having the effect of canceling the transfer to the dis-
claimant ab initio and substituting a single transfer from the
original donor to the beneficiary of the disclaimer.” United
States v. Irvine, 511 U.S. 224, 239 (1994). “An important con-
sequence of treating a disclaimer as an ab initio defeasance is
that the disclaimant’s creditors are barred from reaching the
disclaimed property.” Id. at 239-240.
[5] In short, Arizona’s relation-back rule says that a disclai-
mant neither transfers nor possesses an interest in disclaimed
1386 IN RE COSTAS
property and thus creditors cannot reach the disclaimed inter-
est.
B. State Law Deference
To summarize, section 548 only applies to interests in
“property,” as defined by state law, and Arizona law says that
Costas had no property interest in the disclaimed property.
The remaining question, and the problematic one, is how to
translate this state law rule back into the bankruptcy context.
Ordinarily, bankruptcy courts look to Butner to answer this
question. There, the Supreme Court addressed a circuit split
over the ownership of rents. Butner, 440 U.S. at 51-54. Some
circuits followed state law in determining who received post-
petition rents, whereas other circuits fashioned a federal rule
of equity to allow mortgagees to receive the rents. Id. Ulti-
mately, the Court rejected the federal equity rule, explaining
that “Congress has generally left the determination of prop-
erty rights in the assets of a bankrupt’s estate to state law.” Id.
at 54. Thus, “[u]nless some federal interest requires a differ-
ent result, there is no reason why such interests should be ana-
lyzed differently simply because an interested party is
involved in a bankruptcy proceeding.” Id. at 55.
Applying the principle of Butner to similar disclaimers,
several appellate courts have found § 548 inapplicable. Simp-
son v. Penner (In re Simpson), 36 F.3d 450 (5th Cir. 1994)
(Texas law); Jones v. Atchison (In re Atchison), 925 F.2d 209(7th Cir. 1991) (Illinois law); Hoecker v. United Bank of
Boulder, 476 F.2d 838 (10th Cir. 1973) (concluding that Col-
orado disclaimer rules preclude use of the fraudulent convey-
ance provision contained in § 67(d)(2) of the Bankruptcy
Act); see also In re Bright, 241 B.R. 664 (9th Cir. BAP 1999)
(Washington law). For example, the Seventh Circuit took a
broad view of Butner, explaining that “[a]ll applicable state
law must be construed to determine whether a debtor pos-
sesses a property interest,” including the relation back rule.
IN RE COSTAS 1387
Atchison, 925 F.2d at 212. The contrary view, the court found,
“fail[ed] to give full application to the relation back doctrine
under applicable state laws.” Id. at 211. Based on this defer-
ential approach to state law, the Atchison court concluded that
a disclaimer was not a “transfer of an interest in property”
subject to avoidance under § 548(a). Id. at 212.
[6] Though most courts have found that Butner principles
preclude avoidance of disclaimers under § 548, this line of
authority has been thrown into doubt by Drye v. United
States, 528 U.S. 49 (1999).4 In Drye, a tax debtor inherited his
mother’s estate after the IRS had obtained a tax lien on all his
“property and rights to property.” Id. at 52-53. Relying on
Arkansas’ relation-back disclaimer rule, Drye disclaimed his
inheritance and argued that he had no property to which the
IRS lien could attach. Id. at 53. The Supreme Court, however,
4
We are the first circuit court to address Drye’s impact on § 548 avoid-
ance. Lower courts have split on the issue, compare In re Faulk, 281 B.R.
15 (Bankr. W.D. Okla. 2002); In re Nistler, 259 B.R. 723 (Bankr. D. Or.
2001); In re Kolb, 267 B.R. 861, 866-67 (N.D. Cal. 2001), rev’d on other
grounds, 326 F.3d 1030 (9th Cir. 2003) with In re Schmidt, 362 B.R. 318,
322-23 (W.D. Tex. 2007) (suggesting that Simpson may be invalid after
Drye); In re Kloubec, 247 B.R. 246 (Bankr. N.D. Iowa 2000), aff’d on
other grounds, 268 B.R. 173 (N.D. Iowa 2001), as have commentators,
compare David B. Young, The Intersection of Bankruptcy and Probate, S.
Tex. L. Rev. 351, 384-88 (2007) (concluding that “[t]ax decisions do not
alter the rule that a prepetition disclaimer that is unassailable under state
law should not become avoidable once a bankruptcy petition has been
filed”); Kevin A. White, A Clash of Expectations: Debtors’ Disclaimers
of Property in Advance of Bankruptcy , 60 Wash. & Lee L. Rev. 1049,
1085 (2003) (concluding that Drye does not extend to the bankruptcy con-
text), with Jon Finelli, Comment, In re Costas: The Misapplication of Sec-
tion 548(a) to Disclaimer Law, 14 Am. Bankr. Inst. L. Rev. 567, (2006)
(criticizing the BAP’s decision in this case); David A. Lander, Does the
Supreme Court Decision in Drye Mean that a Disclaimer of Inheritance
Is a Fraudulent Conveyance, Norton Bankr. L. Adviser, No. 12 (Dec.
2002) (suggesting that, after Drye, courts should reassess the majority rule
because “state law disclaimers are not the types of state law property
rights to which the bankruptcy courts must defer in applying or not apply-
ing § 548).
1388 IN RE COSTAS
rejected Drye’s theory and held that the tax lien attached to
disclaimed property despite state law relation-back rules. Id.
at 52. After discussing the breadth of federal tax lien law, the
Court described its analysis: “We look initially to state law to
determine what rights the taxpayer has in the property the
Government seeks to reach, then to federal law to determine
whether the taxpayer’s state-delineated rights qualify as
‘property’ or ‘rights to property’ within the compass of the
federal tax lien legislation.” Id. at 58. Although Drye asserted
that he had nothing but the right to reject a gift, the Supreme
Court disagreed, reasoning that a rejected gift returns to the
donor, whereas a disclaimer channels the property to another
person. Id. Finding this power to channel a sufficient state law
interest to constitute “property” under the federal tax lien pro-
visions, the Court held that the lien attached despite Drye’s
refusal to take the property. Id. at 61.
The Trustee urges us to extend Drye to the bankruptcy con-
text and recognize the “right to channel” as an “interest . . .
in property” for purposes of the Code. The Trustee’s argu-
ment is that Drye recognizes a “right to channel” interest that
constitutes “property” not just for tax lien cases, but as a mat-
ter of federal law. Further, the Trustee suggests that Drye
accords with bankruptcy policy by increasing the size of the
debtor’s estate. In contrast, Costas requests that we adhere to
the more deferential approach of Butner and treat the dis-
claimer as Arizona would.
The Trustee’s argument has some force: if the “right to
channel” has been recognized as a “property” interest for one
federal statute, why not for the other? Nevertheless, we
believe that Drye is distinguishable, both factually and
legally, and that its adoption in the bankruptcy context would,
in any event, be inappropriate.
First, Drye is distinguishable based on timing issues.
Although Drye, like this case, involved a collision between
federal law and state relation back doctrines, the impact
IN RE COSTAS 1389
between the two occurred at a different time. In Drye, the tax
lien was already in place prior to the execution of the dis-
claimer. Id. at 52-53. Thus, before the taxpayer attempted to
execute his disclaimer, the federal government already had an
interest in the subject property. Application of the state law
fiction would have stripped the government of this interest.
Id.
[7] In contrast, the disclaimer here occurred pre-petition,
meaning that the retroactive divestment of property interests
occurred prior to the bankruptcy estate gaining any interests
in the right to disclaim. Therefore, the state law did not oper-
ate to defeat any pre-existing interests. Rather, the situation in
Drye is more analogous to a post-petition disclaimer, where
a debtor invokes the disclaimer protections of state law only
after the creation of the bankruptcy estate. In cases of post-
petition disclaimers, courts have generally included dis-
claimed property in the estate, reasoning that the right to dis-
claim itself belongs to the estate as of the time of filing. See
11 U.S.C. § 541(a)(5)(A); In re Scott, 385 B.R. 709 (Bankr.
D. Neb. 2008). This context mirrors Drye because in both sit-
uations full deference to the state’s disclaimer rules would
strip parties of pre-existing interests. Thus, Drye accords well
with the post-petition situation, but not with pre-petition dis-
claimers where no prior interests exist.
[8] Second, Drye is distinguishable based on its legal con-
text. Indisputably, Drye is, first and foremost, a tax lien case.
The Court’s language repeatedly stressed this limitation, see
Drye, 528 at 52 (“This case concerns the respective provinces
of state and federal law in determining what is property for
purposes of federal tax lien legislation.”); id. (“the disclaimer
did not defeat the federal tax liens) (internal quotations omit-
ted); (explaining the issue as “whether [Drye’s] interest in his
mother’s estate constituted ‘property’ or ‘rights to property’
under § 6321”), and the cases cited were tax cases, id. at 59
(collecting tax cases to demonstrate that neither state exemp-
tion nor disclaimer rules interfere with tax collection). Indeed,
1390 IN RE COSTAS
the Court itself even distinguished the case from the closely
analogous gift tax regime. Id. at 57 (“The absence of any rec-
ognition of disclaimers in §§ 6321, 6322, 6331(a), and
6334(a) and (c), the relevant tax collection provisions, con-
trasts with § 2518(a) of the Code, which renders qualifying
state-law disclaimers ‘with respect to any interest in property’
effective for federal wealth-transfer tax purposes and those
purposes only.”); see also id. at 57 n.3.
Admittedly, similarities exist between the tax lien statute
and the Code, as both broadly rely on state law to define
“property.” Nevertheless, tax lien rules do not translate
directly into bankruptcy rules. See, e.g., Musolino v. Sinnreich
(In re Sinnreich), 391 F.3d 1295, 1297-99 (11th Cir. 2004)
(refusing to apply United States v. Craft, 535 U.S. 274 (2002),
an extension of Drye, in the bankruptcy context). In the tax
lien context, collection is the primary focus. United States v.
Kimbell Foods, Inc., 440 U.S. 715, 734 (1979). This vital
function often “justifies the extraordinary priority accorded
federal tax liens . . . .” Id. Indeed, the Supreme Court has
repeatedly construed tax lien provisions to permit the govern-
ment to reach property beyond the grasp of other creditors.
See, e.g., Craft, 535 U.S. at 276 (finding that federal tax lien
attached to interest in entireties property under Michigan
law); United States v. Security Trust & Sav. Bank of San
Diego, 340 U.S. 47, 51 (1950) (“[W]e hold that tax liens of
the United States are superior to the inchoate attachment lien
of [a state law creditor] . . . .” ).
[9] This purpose contrasts sharply with the policy of bank-
ruptcy law, which largely respects substantive state law rights,5
neither granting a creditor new rights in the debtor’s property
nor taking any away. Raleigh v. Ill. Dep’t of Rev., 530 U.S.
15, 20 (2000) (“Creditors’ entitlements in bankruptcy arise in
5
For a thorough exploration of the implications of this policy on bank-
ruptcy law, see Thomas H. Jackson, The Logic and Limits of Bankruptcy
Law (1986).
IN RE COSTAS 1391
the first instance from the underlying substantive law creating
the debtor’s obligation, subject to any qualifying or contrary
provisions of the Bankruptcy Code. The ‘basic federal rule’
in bankruptcy is that state law governs the substance of claims
. . . .”) (internal citations omitted). Indeed, the Court in Butner
expressly invoked this goal of achieving “[u]niform treatment
of property interests by both state and federal courts within a
State . . . .” Butner, 440 U.S. at 55. By replicating state law
rights, the Court hoped to (1) reduce uncertainty, (2) discour-
age forum shopping, and (3) “prevent a party from receiving
‘a windfall merely by reason of the happenstance of bankrupt-
cy.’ ” Id. (quoting Lewis v. Mfrs. Nat. Bank, 364 U.S. 603(1961)). Extending the rule in Drye to the bankruptcy context,
however, would undermine all of these goals. Uncertainty
would increase because disclaimers, though generally valid,
would lose effect in bankruptcy. Second, forum shopping
would increase because creditors of disclaimants would have
an incentive to push for bankruptcy in order to gain an interest
in otherwise protected property. Finally, many creditors,
including those in this case, would receive a windfall:
although the disclaimed property was absolutely protected
under state law, they would receive a share of the property
solely because Costas filed for bankruptcy within two years
of her disclaimer. Thus, based on the concerns set out in But-
ner, little justification exists for permitting creditors to reach
property that, but for the fortuity of a bankruptcy filing, would
remain beyond their grasp.
Further, the inappropriateness of extending Drye is rein-
forced by comparing the Code’s treatment of exemptions to
the treatment under the federal tax lien statute. In Drye, the
Court stressed the breadth of “property” under § 6331 of the
Internal Revenue Code by noting that the tax lien statute rec-
ognized only a narrow range of exemptions, none of which
mentioned disclaimers. Drye, 528 U.S. at 56-57. On this
ground, the Court distinguished the gift tax statute, which
explicitly incorporates an exception for disclaimers. Id.6
6
The estate tax employs the same exception for qualified disclaimers.
See 26 U.S.C. § 2046.
1392 IN RE COSTAS
While the Code lacks an express exemption for disclaimers
like § 2518(a), its exemptions are nonetheless quite broad,
allowing a debtor to take advantage of all available state law
exemptions. 11 U.S.C. § 522; see also Owen v. Owen, 500
U.S. 305, 308 (1991). Again, this highlights the key differ-
ence between “property” for purposes of tax collection and
for bankruptcy: the former largely trumps state law, the other
tries to incorporate it.
[10] For these reasons, we find that Drye is distinguishable
and we refuse to extend its logic to the bankruptcy context.
Instead, we apply the principles of Butner and hold that a dis-
claimer, properly executed under Arizona law, is not a “trans-
fer . . . of an interest of the debtor in property” for purposes
of § 548.
C. The Existence of a “Federal Interest”
[11] Having determined that Butner controls, we briefly
consider the Trustee’s arguments that the federal interest
exception identified in Butner applies to override the normal
rule of state law deference.7 Butner, 440 U.S. at 55 (explain-
ing that state law controls “[u]nless some federal interest
requires a different result”). The Trustee identifies two such
“federal interests.” First, she proposes an interest in bank-
ruptcy estate augmentation. However, as discussed in greater
depth above, recognizing such a generic interest in expanding
7
Although Butner, rather than Drye, provides the proper rule for appli-
cation in the first instance, it should be noted that Drye may still hold rele-
vance in the bankruptcy context. As the Court explained in Butner,
deference to a state’s definition of “property” may be disregarded when
a contrary federal interest exists. Where such an interest is identified, But-
ner drops out of the equation; therefore, the logic of Drye would likely
control.
This also highlights the conceptual differences between Drye and But-
ner. In the bankruptcy context, a federal interest will not always exist; in
contrast, tax collection is an omnipresent federal interest in the tax lien
context.
IN RE COSTAS 1393
the debtor’s property would, at least in this case, interfere
with Butner’s three goals of avoiding uncertainty, forum
shopping, and windfall recoveries. As such, this interest is
insufficient.
[12] Second, the Trustee points out that § 548 is a federal
rule of avoidance and, as such, constitutes an interest suffi-
cient to override the normal state definitions of “property.”
While we agree that Congress certainly could have trumped
state law with a specific federal law provision, the use of the
general term “property” in § 548 belies any intent to do so.
Congress premised § 548’s application on the existence of
“property” or “an interest . . . in property.” Nothing suggests
that these terms merit a special gloss simply because they
appear in a federal avoidance provision. As such, we decline
to depart from the normal interpretive rules of Butner.
IV. CONCLUSION
Applying Butner’s deferential approach to state law, rather
than the rule of Drye, we hold that a disclaimer, properly exe-
cuted under Arizona law, does not qualify as the “transfer
. . . of an interest of the debtor in property” for purposes of
§ 548. Therefore, the Bankruptcy Appellate Panel is affirmed.