Simpson v. Burkhart ( 2009 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
IN THE MATTER OF BRUCE EDWARD 
HOWARD SIMPSON,
Debtor. No. 07-15626
BAP No.
BRUCE EDWARD HOWARD SIMPSON,  EC-06-01198-
Appellant. DMoPa
v. OPINION
MICHAEL F. BURKART, Trustee,
Appellee.

Appeal from the Ninth Circuit
Bankruptcy Appellate Panel
Pappas, Montali, and Dunn, Bankruptcy Judges, Presiding
Argued and Submitted
October 20, 2008—San Francisco, California
Filed February 23, 2009
Before: J. Clifford Wallace, Sidney R. Thomas, and
Susan P. Graber, Circuit Judges.
Opinion by Judge Thomas
2129
2132 IN THE MATTER OF SIMPSON
COUNSEL
H. Lee Horner, Jr., Goldstein, Horner & Horner, Cortaro, Ari-
zona, for the debtor-appellant.
Michael F. Burkart, Chapter 7 Trustee, Carmichael, Califor-
nia, appellee pro se.
OPINION
THOMAS, Circuit Judge:
Debtor Bruce Simpson claims that his single-premium
annuity is exempt property. His bankruptcy trustee objected to
the exemption, the bankruptcy court sustained the objection,
and the Bankruptcy Appellate Panel (“BAP”) affirmed. We
conclude that, under the circumstances presented by the case,
the annuity does not qualify as exempt property, either as life
insurance or as a private retirement account, and we affirm.
IN THE MATTER OF SIMPSON 2133
I
Simpson paid his bankruptcy attorney, who also sells finan-
cial products, $10,000 for the purchase of a single-premium
annuity known as the Keyport Index Multipoint Annuity (“the
Keyport Annuity”). Simpson designated himself as the annu-
ity contract owner and the annuitant. He designated his two
sons as beneficiaries.
The Keyport Annuity is equity-indexed against the Stan-
dard & Poor’s 500 Index. Although the annuity’s interest rate
depends on the performance of stocks in the index, the annu-
ity has a “guaranteed minimum growth” of no less than 1.75%
on 90% of the premium paid. The annuity contract states that
the annuity is non-qualified for IRS purposes.1 The annuity
has no loan value, so Simpson could not borrow against any
part of the principal or accrued interest. The annuity contract
provides that Simpson would begin receiving payments on a
specified “Income Date.” Prior to the Income Date, Simpson
could surrender the annuity, but would be assessed an early
surrender penalty.
The annuity’s promotional materials refer to it as a retire-
ment savings tool with a taxable death benefit. The section
entitled “Death Benefit” provides that, if Simpson were to die
prior to the Income Date, his beneficiaries could surrender the
1
The Internal Revenue Code classifies annuities as either qualified or
non-qualified. A qualified annuity is purchased through an employer-
provided retirement plan or an individual retirement plan that meets cer-
tain requirements (such as an Individual Retirement Annuity or Simplified
Employee Pension Plan). 26 U.S.C.A. §§ 72(d)(1)(G), 4974(c)(2) (2006).
For example, an “Individual Retirement Annuity” cannot be transferable,
have fixed premiums, or have a premium that exceeds $6000 in any one
year. Id. § 408(b)(1)-(2) and 219(b)(5)(B). Contributions to a qualified
annuity may be deductible from the taxable income of the employee or
employer who made the contribution. Id. § 219(a). An annuity that does
not meet these requirements is non-qualified, and contributions to it are
not deductible. Id.
2134 IN THE MATTER OF SIMPSON
annuity without paying the ten percent penalty and would
receive the principal, along with all interest accrued up to that
point, as if it were fully vested. Alternatively, they could keep
the annuity, wait for it to mature, and then receive the pay-
ments Simpson would have received.
A few months after purchasing the Keyport Annuity, Simp-
son filed a voluntary petition in bankruptcy under Chapter 7
of the Bankruptcy Code. He claimed that the Keyport Annuity
was exempt under California Civil Procedure Code section
704.115, which pertains to “private retirement plans.” Simp-
son later filed an amended schedule, claiming that the annuity
was also exempt under California Civil Procedure Code sec-
tion 704.100, which pertains to life insurance policies.
The trustee objected to Simpson’s claimed exemptions for
the Keyport Annuity. At the hearing on the trustee’s objec-
tion, Simpson testified that he intended the annuity to provide
a supplemental retirement income and viewed the annuity as
an investment. He also testified that he viewed the annuity as
containing a death benefit because of its waived early-
surrender penalty and accelerated vesting provisions.
The bankruptcy court sustained the trustee’s objections to
Simpson’s claimed exemptions and froze the annuity pending
appeal. Simpson appealed to the BAP, which affirmed. Simp-
son v. Burkart (In re Simpson), 366 B.R. 64 (9th Cir. B.A.P.
2007). This timely appeal followed.
We independently review a bankruptcy court’s decision on
appeal from the BAP. Educ. Credit Mgmt. Corp. v. Nys (In re
Nys), 446 F.3d 938, 943 (9th Cir. 2006). We review a bank-
ruptcy court’s findings of fact for clear error, and review de
novo a bankruptcy court’s conclusions of law, including statu-
tory interpretations. Id.; DeMassa v. MacIntyre (In re MacIn-
tyre), 74 F.3d 186, 187 (9th Cir. 1996).
Whether the exemption statutes at issue apply to annuities
is a question of statutory interpretation. In re MacIntyre, 74
IN THE MATTER OF SIMPSON 2135
F.3d at 187. Whether the features of a specific annuity, when
considered together with the debtor’s intent, demonstrate that
the product’s primary purpose and effect are life insurance, a
retirement plan, or another financial instrument, is a factual
determination that we review for clear error. Jacoway v.
Wolfe (In re Jacoway), 255 B.R. 234, 237 (9th Cir. B.A.P.
2000).
[1] California has enacted legislation “opting out” of the
federal bankruptcy exemption scheme provided under 11
U.S.C. § 522. Cal. Civ. Proc. Code § 703.130 (2007). There-
fore, California law governs substantive issues regarding
claimed exemptions. Little v. Reaves (In re Reaves), 285 F.3d
1152, 1155-56 (9th Cir. 2002).
II
[2] The BAP and the bankruptcy court properly rejected
Simpson’s claim that the Keyport Annuity was exempt life
insurance under California Civil Procedure Code section
704.100(a),2 which provides:
Unmatured life insurance policies (including
endowment and annuity policies), but not the loan
value of such policies, are exempt without making a
claim.
2
Although the inquiry we describe applies to application of section
704.100 in general, subsections (b) and (c) are not at issue with regard to
Simpson’s claim. Subsection (b) is irrelevant because the Keyport Annuity
has no loan value. See Cal. Civ. Proc. Code § 704.100(b) (providing that
“[t]he aggregate loan value of unmatured life insurance policies (including
endowment and annuity policies) is subject to the enforcement of a money
judgment but is exempt in the amount of [$9,700]”). Subsection (c) is
irrelevant because Simpson does not argue that the Keyport Annuity is a
matured life insurance policy. See id. § 704.100(c) (providing that
“[b]enefits from matured life insurance policies (including endowment and
annuity policies) are exempt to the extent reasonably necessary for the
support of the judgment debtor and the spouse and dependents of the judg-
ment debtor”).
2136 IN THE MATTER OF SIMPSON
In deciding whether an annuity qualifies as exempt life
insurance under California law, we undertake two inquiries.
The first is a question of statutory interpretation, that is,
whether the claimed statutory exemption includes the asset at
issue. See Lieberman v. Hawkins (In re Lieberman), 245 F.3d
1090, 1091 (9th Cir. 2001) (“The scope of an exemption . . .
is a question of a law, which we review de novo.”). If the stat-
utory exemption categorically includes the questioned asset,
then the inquiry is at an end. If the asset is not categorically
embraced within the statutory exemption, then the question is
whether, as a factual matter, the particular financial instru-
ment qualifies for the exemption.3
A
In analyzing § 704.100, we conclude that the section
applies categorically only to life insurance and that annuities
are not included within the statute’s reach. Bernard v. Coyne
(In re Bernard), 40 F.3d 1028, 1032 (9th Cir. 1994); see also
Kennedy v. Pikush (In re Pikush), 157 B.R. 155, 159 (9th Cir.
B.A.P. 1993), aff’d, 27 F.3d 386 (9th Cir. 1994).
[3] It is true that the statute has an important parenthetical
reference to life insurance “including endowment and annuity
policies.” However, we agree with the BAP’s careful statutory
analysis in Pikush that this phrase “was intended to clarify
that life insurance that includes the essential features of an
annuity or endowment policy does not lose its exempt charac-
ter.” 157 B.R. at 157. As the BAP noted:
3
To the extent the BAP suggested that the analysis was limited to a fac-
tual inquiry reviewed for clear error, it was incorrect. See Simpson, 366
B.R. at 70-71 (“Whether an annuity contract qualifies as exempt life insur-
ance under California law is a factual determination that we review under
the clearly erroneous standard.”). Statutory interpretation and whether a
particular policy qualifies as a life insurance policy are questions of law
subject to de novo review. We do, however, review factual findings for
clear error.
IN THE MATTER OF SIMPSON 2137
Had the California legislature intended to create an
exemption for all endowment policies and annuity
policies, whether or not they are life insurance poli-
cies, it presumably would have enacted a statute that
exempted “matured life insurance, endowment and
annuity policies.”
Id. at 156.
[4] Consistent with this analysis, and with our examination
in Bernard, we conclude that single-premium annuities are
not included categorically within California’s statutory life
insurance exemption.
B
Because section 704.100 applies only to life insurance, we
next consider Simpson’s argument that, alternatively, the
Keyport Annuity is nonetheless exempt under the statute
because it is actually a life insurance policy. After a thorough
examination of the record, we conclude that the bankruptcy
court did not err in determining that the Keyport Annuity did
not constitute life insurance.
[5] A single-premium annuity that provides a guaranteed
stream of income and has no contingencies that can divest the
debtor or his beneficiaries of their right to payment is an
investment, not a life insurance policy. Bernard, 40 F.3d at
1032; Pikush, 157 B.R. at 159. To analyze whether a particu-
lar annuity falls within this rule, we examine the non-
exclusive factors identified by the BAP in Turner v. Marshack
(In re Turner), 186 B.R. 108, 117 (9th Cir. B.A.P. 1995),
namely: (1) whether the annuity is truly contingent; (2)
whether the debtor can accelerate the maturity date; (3)
whether the debtor can borrow against the policy; (4) who
owns the policy; (5) whether payment of the premium is con-
sistent with an investment or payment; (6) whether the seller
was licensed to sell life insurance in the debtor’s state; (7)
2138 IN THE MATTER OF SIMPSON
what, if any, is the opinion of testifying experts; (8) what pro-
visions of the application are also part of the policy; and (9)
whether a life insurance policy in the debtor’s state must con-
tain a death benefit.4 Id.The BAP considered six of these factors and concluded that
the Keyport Annuity was not life insurance based on the fol-
lowing findings:
Unlike a life insurance policy, the payments under
the Keyport Annuity are not contingent upon the
debtor’s life . . . .
. . . The Keyport Annuity does not allow for the
debtor to accelerate the maturity date . . . .
The Keyport Annuity . . . does not allow the
debtor to borrow against it.[5] . . .
4
Our court in Turner did not characterize these factors as either exclu-
sive or required, and neither do we. See Turner, 186 B.R. at 117 (describ-
ing these questions as “issues which need to be addressed” upon remand
to the bankruptcy court for further findings in that specific case).
5
Section 704.100(a) protects debtors only from having to surrender a
life insurance policy for its cash value (often at a significant loss). It does
not exempt the policy’s loan value. Under section 704.100(b), any loan
value above $9700 must be applied to the debtor’s debts. Thus, it appears
the statute’s drafters attempted to balance a debtor’s accountability to his
creditors against wasteful disposition of his assets.
Although the BAP did not provide a detailed analysis under this factor,
presumably it recognized that allowing Simpson to claim the Keyport
Annuity as exempt life insurance would contradict that intent. The Key-
port Annuity has no loan value, while the surrender value is relatively high
— around 90% of the single premium Simpson paid. Applying the life
insurance exemption to this annuity would protect Simpson from having
to surrender the annuity, even though he could do so without incurring a
great loss, while providing no loan value to apply toward Simpson’s debts.
Such an interpretation would provide a result opposite of that the drafters
intended and cannot be deemed logical.
IN THE MATTER OF SIMPSON 2139
....
. . . [T]he Keyport Annuity is in the nature of an
investment . . . [because], “[i]nstead of creating an
immediate estate for the benefit of others, the annui-
tant [reduced his] immediate estate in favor of future
contingent income.”
....
[S]imply because the Keyport Annuity contains a
death benefit does not make it the equivalent of a life
insurance policy . . . . These limited death benefits
do not change the fundamental purpose of the Key-
port Annuity — to provide the debtor with fixed,
periodic payments for life or a stated period of time,
without requiring his death to trigger Sun Life’s obli-
gation to pay.
. . . Sun Life is authorized to sell life insurance . . .
[but this is] not dispositive as to whether the annuity
contract qualifies as life insurance exempt under
California law.
Simpson, 366 B.R. at 72-74 (quoting Payne, 323 B.R. at 728
(alteration in original omitted)). There is no error in the
BAP’s conclusions based on the bankruptcy court’s findings,
which are sufficient to support the conclusion that the Key-
port Annuity is not a life insurance policy.6
[6] Simpson’s primary basis for claiming that the Keyport
Annuity is life insurance is that it contains a “death benefit.”
6
The tax status of the Keyport Annuity’s “Death Benefit” is telling. The
annuity materials repeatedly state that the death benefit provided to the
beneficiaries of the Keyport Annuity is taxable upon receipt. Proceeds
paid under a life insurance policy, however, are generally not taxable as
income to the recipient. 26 U.S.C.A. § 101 (2006).
2140 IN THE MATTER OF SIMPSON
However, we agree with the BAP that the waiver of the early-
surrender penalty and accelerated vesting of accrued interest
provide a death benefit that is “limited” at best, and those fea-
tures do not change the “fundamental purpose” of the Keyport
Annuity. Id. at 74.
Although we are not the final authority on California law,
there is no indication that the California Supreme Court
would decide otherwise. As early as 1951, the California state
appellate courts described the key differences between annui-
ties and life insurance and explicitly held the two are not the
same. See Kuchel v. McCormack (In re Barr’s Estate), 231
P.2d 876, 878-79 (Cal. Ct. App. 1951) (explaining that the
risk assumed in an annuity contract is to pay as long as the
annuitant lives, whereas the risk in a life insurance contract is
to pay upon the insured’s death). Nowhere did the court indi-
cate that the presence of a nominal death benefit was disposi-
tive of its analysis.
Finally, we must reject Simpson’s argument that the Cali-
fornia Insurance Code settles this matter. While he is correct
that it defines life insurance to include the granting, purchas-
ing, or disposing of annuities, the California Supreme Court
has expressly held that this statutory classification is only for
the purpose of regulating annuities under the Insurance Code,
but does not require classification of annuities as insurance
for other purposes. Id. at 879. Thus, this definition is not dis-
positive here.
C
[7] In sum, a single-premium annuity does not qualify cate-
gorically as life insurance under California Civil Procedure
Code section 704.100(a), and the bankruptcy court did not err
in concluding that this particular instrument did not qualify as
exempt life insurance under California law.
IN THE MATTER OF SIMPSON 2141
III
The BAP and the bankruptcy court did not err in conclud-
ing that the Keyport Annuity does not qualify as an exempt
private retirement plan under California law. In examining
this contention, we employ the same analytical framework as
applied to the life insurance exemption: we first examine as
a matter of statutory interpretation whether the asset qualifies
categorically and, if it does not, we then examine as a factual
matter whether this particular instrument qualifies as such.7
A
[8] The annuity does not qualify categorically as an exempt
private retirement plan under California Civil Procedure Code
section 704.115(b). That section allows a debtor to shield the
assets that he has accumulated in a private retirement plan
from the bankruptcy estate. Section 704.115(b) provides:
All amounts held, controlled, or in process of dis-
tribution by a private retirement plan, for the pay-
ment of benefits as an annuity, pension, retirement
allowance, disability payment, or death benefit from
a private retirement plan are exempt.
A “private retirement plan” is not a generic term referring
to any retirement plan. Rather, in order to be a “private retire-
ment plan,” the asset must meet one of the three possible defi-
nitions specified in subsection (a) of the statute:
(1) Private retirement plans, including, but not
limited to, union retirement plans.
(2) Profit-sharing plans designed and used for
retirement purposes.
7
To the extent that the BAP suggested that the review was purely one
of fact, it was incorrect.
2142 IN THE MATTER OF SIMPSON
(3) Self-employed retirement plans and individual
retirement annuities or accounts provided for in the
Internal Revenue Code of 1986.
Id. § 704.115(a).
[9] The statute does not indicate that whether an asset is
“designed and used for retirement purposes” has any bearing
on whether it constitutes a “private retirement plan” under
section 704.115(b). Rather, if the annuity does not meet any
of the statutory definitions for private retirement plan, it is not
exempt under the statute. Single-premium annuities do not
qualify categorically as private retirement plans under the
statute.
[10] We reject Simpson’s argument that the California
Supreme Court would interpret the provision broadly to
include assets acquired by the individual outside of an
employment-related retirement plan. While the California
Supreme Court has not expressly held that the statute limits
“private retirement plans” to those “established or main-
tained” by an employer, it has applied the exemption only to
such plans. See, e.g., Mejia v. Reed, 74 P.3d 166, 174 (Cal.
2003) (construing the exemption in the context of a formal
retirement account accumulated through a medical practice).
[11] Because the California Supreme Court has not had
occasion to consider this issue, we look to the holdings of
California’s intermediate appellate courts as indicative of how
the highest court would decide this issue. Klein v. United
States, 537 F.3d 1027, 1032 (9th Cir. 2008). A survey of
recent California Court of Appeal cases construing the statute
does not reveal a single instance in which that court has inter-
preted section 704.115(a)(1) to include independent retire-
ment investments. See, e.g., McMullen v. Haycock, 54 Cal.
Rptr. 3d 660 (Ct. App. 2007) (funds held through an
employer); Schwartzman v. Wilshinsky, 57 Cal. Rptr. 2d 790(Ct. App. 1996) (plan established by debtor’s employer);
IN THE MATTER OF SIMPSON 2143
Yaesu Elecs. Corp. v. Tamura, 33 Cal. Rptr. 2d 283 (Ct. App.
1994) (funds derived from a “defined benefit pension plan”).
Given these holdings, we do not believe that California would
conclude that a single-premium annuity would qualify cate-
gorically under California law as a private retirement plan.
B
The second question is whether the particular asset, based
on the debtor’s subjective intent and the product’s true nature,
demonstrates that it is primarily intended or used for retire-
ment purposes. Daniel v. Sec. Pac. Nat’l Bank (In re Daniel),
771 F.2d 1352, 1356 (9th Cir. 1985). However, the purpose
of this inquiry is distinct and limited. It does not allow the
debtor to circumvent the statutory definitions and categorize
the asset as an exempt private retirement plan. Rather, the
inquiry seeks only to determine whether an asset that fits the
definition of a “private retirement plan” should nonetheless be
excluded from exemption because the debtor treats it as some-
thing other than a retirement asset. Thus, while the debtor’s
subjective intent cannot create an exemption, it may take one
away. Id.[12] Simpson’s sole argument in support of his claimed
exemption is that the annuity constitutes a private retirement
plan under section 704.115(a)(1), because he subjectively
intended to use it as one. As we have noted, a debtor’s subjec-
tive intent for or use of the asset is irrelevant to this analysis.
Lieberman, 245 F.3d at 1095. Rather, section 704.115(a)(1)
applies only to retirement plans set up by private employers,
“not by individuals acting on their own, outside of the
employment sphere.” Simpson, 366 B.R. at 74 (citing Lieber-
man, 245 F.3d at 1093). As we explained in Lieberman:
[T]he legislature intended § 704.115(a)(1) to exempt
only retirement plans established or maintained by
private employers or employee organizations, such
2144 IN THE MATTER OF SIMPSON
as unions, not arrangements by individuals to use
specified assets for retirement purposes.
245 F.3d at 1095.
[13] The Keyport Annuity was not established for Simpson
by an employer. Rather, Simpson purchased it as an individ-
ual. Thus, regardless of his intentions, Simpson is not entitled
to claim an exemption for the annuity as a private retirement
plan under section 704.115(b).
IV
Because the single-premium annuity does not qualify under
California law either as life insurance or a private retirement
plan, the BAP and the bankruptcy court correctly concluded
that the property was not exempt property under federal bank-
ruptcy law.
AFFIRMED.