*3 Before McFEELEY, Chief Judge, BOHANON, and THURMAN, Bankruptcy Judges.
* parties The request did not argument, oral in the appeal. determination of this See Fed. after examining the appellate briefs and rec- R. Bankr.P. 8012. The case is therefore or- ord, the Court has determined unanimously dered submitted argument. without oral argument oral would not materially assist they filed the time at making payments Judge. McFEELEY, Chief also Stewart February On case. Jimmy Dean Debtors/Appellants first their of confirmation objected to ap- (“Debtors”) Pearson Lucille Jeannette plan. Chapter Third of their Order a Confirmation peal bankruptcy Incur Intent entered Notice Plan Debtors’ Amended Wyoming. Subse- April District heard was court Debt court order on argue entered the court Debtors quently, their confirmation was it Notice denied 2007, finding erred April grounds Plan on found Amended had First Debtors as the premature wrongfully they had con- means test into or entered vehicles replacement *4 for allowance acquisition therefore, a vehicle the claimed and purchase for tracts the Debtors agree We reasonable- two vehicles. the not evaluate could court to take a debtor test allows means further that the court The payments. of such ness expense ownership/lease vehicle an full the not take could Debtors the found vehicle debtor’s the even a vehicle deduction for expense deduction ownership pay- secured by lease unencumbered to surrender. they intended filing bankruptcy the time of at the ments Amended a “First filed The Debtors REVERSE. and so Plan”) April on (“First and Motions” Plan keep to proposed Plan First The 27, 2007. Background I. the se- cramming down Oldsmobile, the a filed 2006, 10, Debtors the October On A objected. Trustee The debt. cured Bankrupt- the 7 of Chapter under petition on held Plan was First on the hearing 2006, Debt- 26, the December On cy Code. mo- the denied court 19, The 2007. June to one case their voluntarily converted ors the Debt- record, stating on the tion Bankruptcy Code. the of13 Chapter under could the Oldsmobile keep ors could Wyo- the over were Debtors the Because monies the on based a deduction claim reason- income, Debtors’ median ming found court further The owed. calculated were necessary able ownership ex- an not claim could Debtors called 707(b)(2),1 also U.S.C. for fully paid on deduction pense form test means test.” On means “the any ordered court Buick. deduc- expense claimed B22C, Debtors find- his comply with must plan amended Oldsmobile two vehicles: for tions First Debtor’s Denying (“Order ings La Sabre Buick a 1995 (“Oldsmobile”), Plan”). (“Buick”). an filed Debtors 2007, the 25, June On surren- to planned Debtors Initially they B22C, Form amended a new purchase der Oldsmobile one ve- for expense ownership an claimed Notice they filed that end Toward car. older and an of $459 in the amount hicle (“Notice”). The Debt Incur of Intent vehicle second for allowance vehicle R. Stewart Trustee, Mark Chapter A total $659. of $200 the amount arguing objected, (“Trustee”), about on or filed Plan was Amended Third a vehi- claim entitled not were Debtors August On July Buick either expense cle Con- “Order entered court they were because Oldsmobile or the noted. Chap- wise are to statutory references future 1. All other- unless Code States the United 11 of ter firming the Debtor’s Third Amended Plan” Cir.2002). 1103-04 The identification (“Third Plan”). Amended The Third of the relevant final order a notice of Amended Plan proposed to make a distri- appeal is sufficient to support appellate bution of 54% to unsecured jurisdiction creditors. to review the earlier interlocu- This appeal timely followed. parties tory order. Id. This appeal fits within have consented to this jurisdiction Court’s those parameters. However, that does not because they did not jurisdictional elect to end have the our inquiry. appeal heard the United States District “Because it involves the court’s Court for the District of Wyoming. 28 power to entertain suit, constitutional § 158(c)(1);
U.S.C.
Fed. R.
8001;
Bankr.P.
standing is a threshold issue in every case
10th Cir. BAP L.R. 8001-1.
before a federal court.” O’Connor v.
Washburn University, F.3d
II. Discussion
(10th Cir.2005)
(citation omitted).
Court,
with the consent
par-
of the
the absence of a standard for appellate
ties,
jurisdiction
appeals
hear
“from standing in the
Code,
Bankruptcy
final judgments, orders,
decrees,”
and Tenth Circuit has adopted the “person ag
*5
“with leave of
court,
the
from other inter-
grieved” standard. Holmes v. Silver
locutory orders and decrees” of bankrupt- Wings Aviation, Inc., 881
939,
F.2d
940
cy judges within this Circuit. 28 U.S.C.
(10th Cir.1989).
person
The
aggrieved
158(a), (b)(1).
§
While Debtor’s Third
standard “is stricter than the prudential
Amended Plan is a final order and the
requirements for standing under Article
named focus of
appeal,
this
it is not the
III.” GMX
(In
Resources v. Kleban
re
subject of
appeal.
this
Here, the Debtors Petroleum Production Management,
argue that the bankruptcy court erred in Inc.),
(10th
9,
282 B.R.
14
2002)
Cir. BAP
concluding
under
11 U.S.C.
(citation omitted). Under
person
the
ag
707(b)(2)(A)(ii)(I)
§
they could not take an
grieved standard, appellate review “is lim
ownership expense deduction on their fully ited to those persons
rights
whose
or in
paid for Buick and thus prevented them terests are directly and adversely affected
from including this deduction in the Third
pecuniarily by the decree or order of the
Amended Plan.
argument
focuses on bankruptcy court.” Id. Only person
a
ag
the Order Denying the Debtor’s First
grieved may appeal
judgment.
a
Holman
Plan. According to
Debtors,
the
we have
U.S.,
v.
1060,
(10th
F.3d
Cir.
jurisdiction of this appeal because the Or- 2007). The burden of establishing stand
der Denying the Debtor’s First Plan was
ing is on the party invoking
juris
federal
an interlocutory order that became ripe for
diction. Weinman v. Fidelity Capital Ap
our review with the confirmation of the
preciation
(In
Fund
re Integra Realty
Third Amended Plan.
Resources, Inc.), 262
F.3d
1101-02
(10th Cir.2001). The issue
The
here
Tenth
is wheth
Circuit has held that
er a debtor who
orders
has
denying
successfully con
confirmation without dis
firmed
plan
a
has
missing
standing
the
person
as a
underlying petition or pro
aggrieved to appeal
ceeding
are
interlocutory
not
order
final orders for the pur
merged
has
into
poses
of
final
appeal.
order.
Simons,
In re
908 F.2d
(10th Cir.1990).
However, such
Recently, in
Zahn,
713 the Bank- into Manual the incorporate the permits expense the vehicle that contend further They Code. ruptcy operating vehicle the augment debtor keeping in is View Language vehi- Plain of the needs the unforeseen for expense Accord- BAPCPA. Id. repairs. policy behind major the with ownership such cle of 707(b)(2)(B) purpose primary courts that to these ing *8 concluded following courts Demonica, 2007); In re (Bankr.N.D.Ohio clear of 481 free a vehicle owns who re In (Bankr.N.D.Ill.2006); ex lease 895 ownership or B.R. 345 transportation any McIvor, (Bankr.D.Del.2006); In Fowler, In re 414 B.R. the deduction: 349 may claim pense (Bankr. (Bankr.E.D.Wis. 06-42566, Grunert, 3949172 WL B.R. 591 2006 353 re No. Chamberlain, 2006); 15, Wilson, 729 In re 383 B.R. 2006), by Nov. re abrogated In E.D.Mich. In re (Bankr.D.Ariz.2007); B.R. 2008); Haley, 354 519 B.R. re 369 In Cir. BAP 06-15255, 06-13117, WL Crews, Hartwick, 2007 Nos. 352 In re (Bankr.D.N.H.2006); 340 2007); Feb.23, In re (Bankr.N.D.Ohio by 626041 Fok rev'd (Bankr.D.Minn.2006), B.R. 867 06-10747, 748432 WL 2007 Enright, No. (D.Minn. Hartwick, 645 B.R. 373 v. kena Sawdy, Mar.6, 2007); In re (Bankr.M.D.N.C. (Bankr. Naslund, 781 2007); B.R. 359 re In vacated (Bankr.E.D.Wis.2007), 898 B.R. 362 Prince, D.Mont.2006); 06-10328C- No. In re (Bankr.E.D.Wis. 898 Sawdy, B.R. 362 re In (Bankr.M.D.N.C. 7G, 3501281 WL 2006 (Bankr. 618 B.R. 2008); Scarafiotti, 375 re In Wilson, 114 B.R. Nov.30, 2006); 356 In re Swan, 12 B.R. D.Colo.2007); 368 (Bankr.D.Del.2006). Watson, (Bankr.N.D.Cal.2007); (quoting U.S., v. Bates 29-30, U.S. III. Conclusion 118 S.Ct. (1997)). L.Ed.2d 215 For the reasons set above, forth we maxim, Under this a term that is meant to REVERSE and REMAND for proceed- mean one thing should repeated be ings consistent with this opinion. mean the same thing in the same act. The IRM ignores view this maxim THURMAN, when it tries Bankruptcy Judge, to argue that specially “applicable” concurring. expenses are nothing more than relevant or When issue in appeal this came be- capable of being applied expenses. If you fore me as a member of panel, this I was adopt this premise IRM then “applicable hesitant to endorse the concept of allowing expenses” reality only “actual” ex- Chapter 13 an debtors ownership deduc- penses. If Congress meant “actual ex- tion for vehicles that they own free and penses” first clear. part My instincts tell me that the vehicle § 707(b)(2)(A)(ii)(I), it would have deduction is used supposed to cover term debtors’ monthly instead of payments “applicable on monthly vehicles that are expense.” subject to either secured debt or a
lease. Allowing this deduction when a
debtor actually has no such obligation ap-
We further observe that
pears
fiction,
to be a
rather,
or
“phantom
IRM view gives deference to the IRS’s
deduction.” Nonetheless, my reading of
interpretation of its own Manual without
the commentary and
many
cases on
adequately considering the words of the
both sides of this issue
persuaded
me
Bankruptcy statute under consideration.
that a fair reading
§ 1325(b)(3),
togeth-
reviewing
“[A]
court should not defer
er
§with
707(b)(2)(A)(ii)(I), compels the
position
agency
which is contrary to an
that,
conclusion
in determining the return
intent of Congress expressed in unambigu
to unsecured creditors, deduction of a vehi-
ous terms.” Estate
Cowart v. Nicklos
cle expense under these circumstances is
Co.,
Drilling
469, 476,
U.S.
112 S.Ct.
allowed.
2589, 120
(1992).
L.Ed.2d 379
Most im
However, I cannot conclude that
these
portant, the IRM approach does not ade
statutes are either “plain”
“clear,”
but I
quately acknowledge that Congress did not
acknowledge
they
are clear enough to
incorporate the entire IRS Manual into the
support
this decision. For reason
means test.
“[W]here,
here,
the stat
alone, I find the labels used to reference
ute’s language
plain,
‘the sole function of
the various
issue,
decisions
both
the courts is to enforce it according to its
this decision
others,
problematic.
be
”
terms.’
Pair,
Ron
715 outcome, amI not case’s Despite this as views competing two to label prefer are bankruptcy courts “Manual that persuaded and View” “Numbers determining the flexibility other in title adopt some some View,” at least without or to Language deduc- “Plain income currently used of applicability than and amount sim- statutes today’s these my opinion, In that believe Thus, View.” I do not tions. Language.” “Plain not evince ply do con- undermines way any in decision review upon apparent more even becomes have both bankruptcy courts that cept “stan- the terms cases, which in of from to deviate obligation and the power “manual” and dards,” “interpretations,” B22C under on Form derived the numbers when interchangeably used frequently are on ruled circumstances, I have certain my By publications. IRS referring to Thus, keenly aware I am occasions. prior num- the actual reading, “standards” in holdings fully support, of, still on Form B22C may use debtors that bers B22C Form from Martin, deviation that Code, whereas Bankruptcy to the pursuant lack of by a debtor’s justified may be interpre- the IRS’s supplies “manual” require- faith good compliance a within different numbers of those tations 1325(a)(3), § in 11 U.S.C. set forth ment by the adopted context, were devia- such Lanning, that in Jass Code. Bankruptcy significant by justified may be tion my conclusion event, reaching in any In that render in circumstances changes that, matter as a I determined in case or unrealistic derived either numbers so deny sense little fairness, makes it of to- support in fact cases These unfair.5 frugal debtor to a ownership deduction for the they outcome, stand in that day’s fully paid his has he who, although should courts that proposition bank- in need of car, himself finds used the indi- on based discretion some exercise the deduction allowing relief, while ruptcy not and them, and are before cases vidual who “aggressive” more to a dis- generalized be, by the bound incurring cannot car model a late acquired by other made cretionary determinations persuaded I also was debt. secured large reasoning in government. excellent branches Judge Rhodes’s “the Kimbro,3 the effect out, points majority Finally, as the ownership are vehicle expenses the entire incorporate did not “Congress incurs,” in- an owner fixed fact, In test.” means into the Manual IRS insurance, licensing cluding “depreciation, reference Kimbro, previous as noted “every vehicle taxes,” and that fees and for ex- analysis “financial IRS’s to the and that ownership expenses, incurs owner from removed was penses” pay- or debt lease regardless is so 4 707(b)(2)(A)(ii)(I) it was enacted ments.” changes in circumstances significant (6th BAP on Kimbro, Cir. B.R. 518 389 re 3. In unfair); re Lan In inaccurate them render 2008). 2007) (Form BAP Cir. ning, B.R. 4. Id. at 530-31. "starting disposable income B22C’s projected dis determining debtor’s point” for Martin, See, B.R. e.g., In re income). holdings Jass and posable 2007) (court both find must (Bankr.D.Utah elsewhere, but challenged Lanning been have B22C complied with Form have debtors otherwise, I believe rules circuit our until faith); good proposed in plan is followed. they be should 2006) (Bankr.D.Utah loss, based altered may be (entries B22C Form *10 2005.6 suggests that Congress in-
tended adopt only the dollar amounts
set forth in the Standards, IRS without
necessarily adopting the interpretations of
those numbers Manual. this
respect, I note that the additional $200
“older car” operating expense given to the
debtors in this case is derived from the
Manual rather than the Standards.7 Ac-
cordingly, such a deduction should not be
given under the view we have adopted in
this case.8 However, because the Trustee not appeal
did case, award we
do not it here. disturb
Accordingly, although entirely per-
suaded that the statutory language before
us is in fact “plain,” I concur with the
result reached the majority.
In Nicholas Jerome DeTHAMPLE,
Angela Renee DeThample,
Debtors.
No. 07-11829.
United States Bankruptcy Court,
D. Kansas.
July 24, 2008.
6. In re
Kimbro,
389 B.R.
at 525-26.
See,
e.g.,
Herbord,
Notes
notes Ransom at 808. inflexi- “spe- ‘rigid and impose a based “to expenses is BAPCPA additional allows the is section that standards.” expense of set circumstances” ble’ cial Scarafiot- un- should 109- Rep. turn H.R. (quoting should a debtor B.R. at 630 to which 375 ti Id. that occur. expenses conclude major 12). These courts foreseen 31 at of regardless standards of set of number one applying contrast, equal almost an goals. take these may ownership will meet debtor that a held have courts the although ownership expense vehicle Plain the We conclude ap- in full.4 vehicle the owns debtor reasoned. is better View Language Language the Plain called been has proach “(t)he plain stated: Supreme Court These B.R. at 375 View. Scarafiotti be conclu should legislation of meaning “applicable” word conclude courts in rare cases sive, except of the table listed amount to the refers produce will a statute of application literal view, the Under Local Standards. with odds demonstrably at a result even applies ownership expense vehicle v. States United its drafters.” of intention actual an may not have though Inc., U.S. Enterprises, Pair Ron the vehicle. associated expense 1026, 103 L.Ed.2d S.Ct. rests on courts these of interpretation both refers (1989). test meanings of The means the different analysis of ex “actual expenses” term “actual.” “applicable “applicable” word statutory of expenses” maxim important “actual An argue penses.” courts These in Congress fall ‘[w]here is “that only those construction of in one section language Necessary Expenses.” particular “Other cludes section another it in omits but statute Language Plain adopting Courts presumed Act, generally it same arbiter final as the the Manual reject View pur intentionally and acts Congress “applicable” meaning word exclu inclusion disparate in the posely (1) the Manual reasons: following two ” Walker, U.S. v. Duncan sion.’ from purpose differs aas whole (2001) 2120, 150 L.Ed.2d 173, 121 S.Ct. (2) Congress did Code; and Bankruptcy Zak, 361 B.R. (Bankr.D.Md.2007);