whether federal income tax refunds and federal income tax credits are disposable income for center section thirty twenty five b of the bankruptcy code in each case the bankruptcy court ultimately determined that the tax refunds and the tax credits ar disposable income the bankruptcy court then went on to find that debtors could project that income and the associated expenses that will be done in the future into the calculation of their current monthly income even though that income and those expenses are not actually received during the six months prior to the filing of the bankruptcy case this projection occurs by pro rating mills amounts on to the diner schedule in this case the bankruptcy court confirmed the doubters chapter thirteen plan over the trustees objection to these prorated amounts without holding an evidentiary hearing the decision of the bankruptcy court should be reverse and the confirmation order vacated for three reasons first the decision misapplies the hamilton be a landing decision and the calculation of current monthly income for medium level debtors second this projection conflicts with the requirements that a debtor has the burden to demonstrate a plan is feasible and file the good faith pursuant to section thirteen twenty five eighty six of the code and sections thirteen twenty five eight three and the seven finally it was clear air for this court that is neither trust misapplication of the hamilton be landing decision in that case the court cautioned against using the mechanical pro choice for doubters when it the results were not consistent with what their income would be going forward for the below me and other they are supposed to be taken from their actual monthly expenses as listed on schedule j for the above median debtor there are standardized deductions that are set forth in section seven zero seven b two so in landing when they took the income out of the current monthly and income equation there was no impact on expenses because they are already set forth by the standardized amount in the code in this case in order to project the income they also had to project expenses when those expenses are projected they're supposed to be substantial evidence that those expenses will occur during the trial of the plan and that watching issues short of the issue that was certified by the bankruptcy court was whether income tax well the entire confirmation order was certified for review by this court by the bankruptcy court and in order to get to the decision to allow the proration of these amounts they had to first decide that the income was income under the bankruptcy code so our position is that these other issues are directly related to that finding and that that finding was certified then the entire confirmation order should be certified  when these amounts are projected on to the schedules it conflicts with the debtors burden to demonstrate that a plan is feasible and filed in good faith under section thirteen twenty five a of the code which is a separate section of the code in which the debtor is required to demonstrate that the plan is feasible and filed in good faith the burden on that and that section of the code is a preponderance of the evidence and in this case there was no evidence presented that the debtor had a historical practice of spending her tax refunds on the expenses that were al listed on her schedule j the reason that the daughter argues that she should be able to project her federal income tax refunds on to her schedules is that she had a historical practice of receiving them but there was no similar historical practice of the expenses that were listed are pro rated and to schedule j they're not able to prove that information because they don't actually exist at the time the cases filed they're simply predicting that also the expenses that they will have in the future on a regular basis of this is pretty reasonably predictable right where they would in the end being predicted they would not actually be able to prove that they have that expense would meet their evidently burdens under the code they have to have something that would actually show that the expense exists not that it's just reasonable and necessary them basically because certified a piece of the whole thing should come up here as opposed to going to the district court clerk normally that's where we would go correct in the rule itself does a judgment order or decree and then it says involves the question of is that if it's involving that question all the other issues that involves as well would come up and there was a slightly unique circumstance as to what happened in this case when the certification order was entered it was entered  originally past the thirty days that the rule provides for the bankruptcy court had jurisdiction but then it was remanded back by the district court for the bankruptcy court to enter the certification order and i believe that now that the bankruptcy pilot challenge by the trustee to the profits correct this is the first time there's been a chance and this was the first case that judge thorne actually wrote the opinion and to address this issue there was another opinion that was written by another bankruptcy i did just also want to touch briefly on the appellate argument that the trustee did not make in a request for an evidentiary hearing in the case the request was made in writing in the trustees written objection it was not styled in the typical title it was titled a response to the remember random but it was a written objection and in the written objection we did make a request for an evidentiary hearing on the disputed amounts of the appropriated income and the program of expens morning may please the court my name is jim brady and i represent the debtor in this matter first this case about particular expenses which the bankruptcy court found to be reasonable is not about whether the earned income tax credit is income which as you pointed out your honor that was the only issue certified by the bankruptcy court for direct appeal as such the bankruptcy court's decision is not an issue that justifies a direct appeal and furthermore there are no reasons to reverse confirmation of the gutters plan or the bankruptcy courts findings regarding the debtors expenses are not clearly erroneous first we ask that the court reconsider its decision to grant the direct a secondly the trustee waived her right to an evidentiary hearing regarding the debtors expenses third the court's findings below regarding the debtors income and expenses have not been shown to be clearly erroneous and finally the bankruptcy court correctly found that the dare act good faith and that her plan it was feasible regarding the court's jurisdiction as you pointed out your honor the only issue certified by the bankruptcy court was whether or not the only cops act tax credit was income for purposes of of  debtors plan that is no longer before this court we we we use that amount from the beginning and her initial pleadings are schedules i n j the tax credit is included as income and we took expenses  from and that issue was resolved by the bank to court and we are not contesting it now secondly the rules governing direct appeals were not followed there was no petition filed by the trustee under a the issue a certified by the by the bankruptcy court but no official petition under rule five was followed but the court felt that there was kind of no harm no foul because the debtor there had never contested direct appeal below also the cart court found that there was a what he consider an important issue for the court to determine which was namely how debtors were taking certain mortgage expenses when their homes are underwater and with what what the court called an impending for closure crisis they decided that they needed to to hear that appeal here those exceptions don't apply first of all miss blake at all points that she was given the opportunity to oppose direct  is not properly before the court this court does not need to issue a ruling about whether or not the earned income tax credit is income yes i think that would be an advisory opinion if the court were to issue that because it's not going to have it would have any bearing in this matter between these two parties between the debtor and the trustee the trustee waived its opportunity for hearing the request that it made was in the context of the briefing regarding whether or not the tax credit was income and if you look at the request in the paragraph that they make it the things that they are complaining about is whether or not the tax credit was going to be definite and certain enough for the hamilton discretion to a plot nothing about expenses in that requests and that was really their main complaint here is her expenses income tax credit is virtually certain as any other type of income you can go on the i r s web page you can you can do a search for e i t c u i do i am i eligible you can look up the tables and it's all there if your household is qualified and you make a certain income below an amount you're eligible misplayed has been eligible this whole time in fact she was eligible when she in the four years prior in the tax returns that had to be submitted to the trustee as part of the bankruptcy process we were able to establish historically that she received that around and earned income tax credit you know i do know this is sort of so age to mars that  used to to keep low wage earners in the workforce and to really bring people out of poverty and the studies do show that that has been successful i mean the minimum wage or something in the right and right now that the cutoff i look at this higher than misplace income misplacing come on her schedules her gross income including the tax credit i believe is right around twenty one hundred twenty two hundred a month and out of that she's she's making her plan payments for sixty months  additionally when when the trust me there says they did not renew that request at any point after they made it in that remember if there was no request when the bankruptcy court issued it ruling on that issue that was briefed on whether or not the tax credit was income they could've renewed that request and they probably should have renewed that request at that time and they failed to do so again at confirmation when the issues of expenses w discussed before the court the trustee again did not make a request they did not file a written objection to confirmation at that point they did not win when the court asked i i think the quote in the record is i assume the trustee is objecting and the trustee simply says yes at no time or the trustees say hey wait if you're going to rule in favor of the debtor we want to chance to talk to her even if they had made that request they had the chance to question her at the three forty meeting where she was sworn in under oath and again our initial schedules had both the u i to see as income and the prorated expenses they could have asked for about all of those things at the three forty one meeting and they  yes in fact one one thing in this case is that misplace is on payroll control and what that means is that the creditors get paid before anybody so she does not even see the plant payment on a monthly basis when her employer pays her they deduct a monthly amount from her paycheck that goes directly to the trustee and the debtor is current  overcome a presumption of bad faith earlier in the case when she filed her motion to extend state because this bankruptcy was the second case of hers within the proceeding twelve months and as such she had to file a motion to extend the stay beyond thirty days from filing an order so her creditors couldn't couldn't come after her for any preposition debts and as part of that process we filed that motion there's an affidavit from her accustomed to some changed circumstances as to why this case would be successful as opposed to the old case and offered to go on parent control because that's kind of in insurance policy that the payments will actually be made to the creditors the trustee had an opportunity to object did not do  so creditors also have the opportunity to object in none did so and so when the court finds that the stay is going to be extended there is an implicit finding their good faith here is the cure critter in this there there is no requirement that actual expenses are used and in fact it would be impossible for someone to use actual expenses the dynamic that the trustee proposes would require debtors to almost come in on a monthly basis with receipts and show what they were going to spend their money on and that's not what the true which players with the code requires for the little meeting the debtors is that those expenses simply be reasonably necessary and as the bankruptcy court pointed out those expenses don't even have to be monthly to who is going to get paid within their budget other things that happen with those expenses is that heating for example if we file a case in january or february we don't put as a gas expense four hundred dollars a month what we do is we look at what happens over the life of a year and say let's look at your yearly gas expense you spend four hundred a month when it's cold and you spend sixty dollars a month when it's warm and we ave because that's the whole concept of using the term projected in the code natural is usually the utility ones that premium and the winter right and historically that really come tax credit is used to meet household expenses there are studies that say that too and that's what what we're trying to do here is that we we want to be able to take back tax credit we are where we are certain that is going to occur and then prorate that over the life of the plan and deduct the expenses from it the court's findings on whether or not those expenses were reasonable is reviewed under a clearly erroneous step standard and the trustee has not shown any evidence in the record to suggest that that the core error here regarding the feasibility of  cases say that that that is decided on a case by case basis basis and that the bankruptcy court's decision is entitled to deference on review here judged or made a finding that she thought the plan was feasible that the debtor had these reasonable expenses that her kids would get a new furniture and new beds so i think the quote is that they're not sleeping on the floor and that  would get paid so the household would have a place to live and that the creditors would get something that something is what unsecured creditors are entitled to get in a chapter thirteen they are entitled to receive the best efforts of here misplayed is going the maximum amount in her plan and as the bankruptcy court held those creditors will get something at the end of the day if this case  amount she will be pain these words and we would see the total amount that will be paid into the plan is just shy of six thousand dollars she's incorrect and that was actually pointed now in judge florins certification or that if you did decide that it was not income then this proration were not and do incur that income would not even be included in the bankruptcy at all so i want to point that out because it is still relevant and it is related to the issues that are being addressed today and that are before the court the second issue was that there was no formal petition to accept that was filed in this court the turner case does say that the trans middle of the documents from the bankruptcy court to this court can serve as the functional equivalent of that petition if they contain sufficient information for this court to determine what happened below in this case that that did occur and in fact this court entered  order accepting that and the actual words of the order said the petition is accepted and that order was actually entered three days before the deadline for the pelly to file an objection in this case to that acceptance of the petition so if they had any issues and they wanted to re raise the objections to the certification below again they could have filed an objection and still have filed a timely within the requirements of rule five b of the appellate court the next point is that they said pelley indicated that we had waived our right to an evidentiary hearing there is no requirement in the in the bankruptcy rules or in the bankruptcy code that an objection has to be brought over and over again every time there was a hearing on the same case in the same chapter thirteen in fact the court itself referred back to its original ruling in the at the final hearing on confirmation and it was understood that when the trustee is referring to her objection and the plan being confirmed over the trustees objection that the court is confirming it over all objections that have been raised rather written and or oral objections it's not just the single objection matters were raised that day in court so again our position is that objected to the motion to extend the automatic stay in this case however the amendments to the schedule that occurred in this case occurred after both of those events so by the time her planet confer was confirmed  and her schedule j four times each time the schedules were amended they were signed under the penalty of perjury and each time they change the amount of the income and the amount of the expenses from what was originally on there so the trustee did not have the opportunity to examine her regarding those change expenses or the changed income it was not the same documents that were before the trustee when the three forty one meeting occurred and when the motion to extend the out of mike state occurred it's the other thing that  raised was that the credits were going to stay the same over the term of the case one of the issues that we raised and we did not have the opportunity to question blake about was whether her dependent children would age out of eligibility for those credits  that was actually cited to in our brief and it was also cited to in our written objection that it seemed to be the amounts some of the amounts were listed were too high based on what her private previous month receive were that also she didn't state whether her children were full time students how long they were expected to remain as students because the ages appeared that they would age out of those credits during the term of the plan the other thing is that tax or credit is not tax credit income is not but it's received as a lump sum and it's usually spent as a lump sum and so when these amounts are pro projected in prorated under the schedules it is not giving the court a plea or picture of what the debtors actual budget is and whether they will be able to make schedules and all these mounts could count towards a higher dividend even as much as five percent or three percent or four percent because the plan payment was so low in the dividend was so low that even though these are low amounts and there is a tight budget every dollar counts  thank you thank you