1 Employee Retirement Income Security Act of 1974, 29

U.S.C. §§ 1001 et seq.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 99-30109

(Summary Calendar)

IN THE MATTER OF: MARTHA C. SEWELL,

Debtor,

CYNTHIA L. TRAINA,

Appellant,

versus

MARTHA C. SEWELL,

Appellee.

- - - - - - - - - - Appeal from the United States District Court

for the Eastern District of Louisiana

- - - - - - - - - - July 27, 1999

Before JOLLY, SMITH, and WIENER, Circuit Judges.

WIENER, Circuit Judge.

In this bankruptcy appeal , Appellant Cynthia L. Traina,

Chapter 7 trustee (“Trustee”) in the bankruptcy proceeding of

Appellee Martha C. Sewell (“Debtor”), asks us to reverse the ruling

of the bankruptcy court, which was affirmed by the district court,

excluding from property of the estate the Debtor’s beneficial

interest in her employer’s ERISA 1 retirement plan. The Trustee

insists that the bankruptcy and district courts erred in allowing2 11 U.S.C. § 541(c)(2).

3 29 U.S.C. § 1003(a).

4 Paragraph 12.5 of the subject Plan provides: “NONASSIGNMENT or ALIENATION of BENEFITS: No benefit or interest

available hereunder will be subject to assignment or alienation,

either voluntarily or involuntarily.” See also 29 U.S.C. §

1056(d)(1).

5 26 U.S.C. §§ 1 et seq.

6 A company concededly engaged in interstate commerce.

2 that exclusion unde r § 541(c)(2) of the Bankruptcy Code, 2 even

though the employer’s plan is an ERISA plan 3 containing an ERISArequired anti-alien ation provision, 4 because

—— as the result of

alleged disqualifying acts by Debtor’s employer

—— the subject plan

is purported not to be tax qualified under applicable provisions of

the United States Internal Revenue Code. 5 Concluding that an ERISA

plan’s tax qualification is not a prerequisite to exclusion of a

participant’s beneficial interest from her bankruptcy estate under

§ 541(c)(2), we affirm.

I.

Facts and Proceedings

The Debtor was a full-time employee of Home Care Center, Inc.

(“Home Care”), 6 but was not a sha reholder, director, officer, or

highly-paid executive. Home Care sponsored a pension plan known as

the Deferred Capital Compensation Plan and Trust (the “Plan”). The

Debtor was a participant in the Plan, but was not a trustee,7 See supra note 4.

3

administrator, or other fiduciary. Among other typical ERISA

provisions, the Plan contains a clause restricting transfer of the

Debtor’s be neficial interest in the retirement trust. 7 Also

referred to as an anti-alienation or “spendthrift” clause, this

provision is admittedly enforceable under ERISA.

Although the record does not contain evidence th at the Plan

was ever anythi ng but presumptively qualified for tax purposes,

neither is there record evidence that the Plan was ever formally

disqualified for tax purposes by the Internal Revenue Service. The

Trustee, nevertheless, contends that specified acts

—— “prohibited

transactions” —— by Home Care or individuals acting for it caused

the Plan not to be tax qualified at the times pertinent to this

case. Although we have doubts that an ERISA plan that is presumed

to be tax qualified or has opted to obtain a tax qualification

letter from the IRS can become disqualified other than by the overt

action of the IRS, we assume for purposes of today’s de novo review

(as have the parties and the bankruptcy and district courts) that

the Plan is not tax qualified.

The Debtor takes the position that her beneficial interest in

the Plan is excludable from her bankruptcy estate under § 541(c)(2)

of the Bankruptcy Code. This position is premised on the facts

that her interest in the Plan, unquestionably a trust, is subject

to a restr iction prohibiting alienation (transfer) and that the8 11 U.S.C. § 541(c)(2).

9 Patterson v. Shumate , 504 U.S. 753, 765 (1991).

4 restriction is enforceable under ERISA, a nonbankruptcy law.

Section 541(c)(2) provides:

A restriction on the transfer of the

beneficial inter est of the debtor in a trust

that is enforceable under applica ble

nonbankruptcy law is enforceable in a case

under this title. 8

The Trustee objected to the Debtor’s exclusion of her interest

in the Plan, but the bankruptcy court overruled that objection on

the basis of § 541(c)(2), holding that the Plan is “ERISAqualified” and that its tax qualification

—— or lack thereof

—— is

immaterial. Specifically, the bankruptcy court rejected the

Trustee’s contention that to be an “ERISA-qualified pension plan,” 9

the Plan had to be tax qualified under the Internal Revenue Code.

The Trustee appealed to the district court, which affirmed the

bankruptcy court. The Trustee then timely filed a notice of appeal

to this court.

II.

Analysis

A. Standard of Review

When a ruling by the bankruptcy court that has been appealed

to and ruled on by the district court is appealed to us, we perform

the sam e appellate review as did the district court: We examine

the bankruptcy court’s findings of fact under the clearly erroneous10 Nationwide Mut. Ins. Co. v. Berryman Prods, Inc. ( In re

Berryman), 159 F.3d 941, 943 (5 th Cir. 1998).

5 standard, and we examine that court’s legal determinations under

the de novo standard. 10 The sole issue on appeal of this case ——

whether a bankruptcy debtor’s beneficial interest in an ERISA

retirement plan that contains an anti-alie n ation provision is

excludable from the bankruptcy estate u nder § 541(c)(2) when the

ERISA plan in question is not or may not be qualified for tax

purposes under the Internal Revenue Code

—— is purely a legal one.

Consequently, our review in this case is plenary.

B. Property Excludable from the Bankruptcy Estate

Under the well-known scheme of the Bankruptcy Code, all

property and interests in property owned by the debtor at the time

the petition in bankruptcy is filed (and, in some instances, for a

short period prior thereto) are available to satisfy claims of

creditors and costs of the proceedings unless such assets are (1)

“excluded” from the bankruptcy estate altogether, or (2) included

in the bankruptcy estate but “exempted” from use in satisfying

claims of creditors and other authorized charges. As the Debtor in

the instant case has claimed

—— and the bankruptcy and district

courts have allowed

—— the exclusion of her beneficial interest in

the Plan from her bankruptcy estate, we never reach the issue of

exemptions : Exemptions come into play only when property is

included in the bankruptcy estate and is sought to be used to

satisfy claims of creditors; by definition, excluded property never11 Compare § 206(d)(1) of ERISA, which states that “[e]ach

pension plan shall provide that benefits provided under the plan

may not be assigned or alienated,” 29 U.S.C. § 1056(d)(1), with §

401(a)(13) of the Internal Revenue Code, which states as a

general rule that “[a] trust shall not constitute a qualifed

trust under this section unless the plan of which such trust is a

part provides that benefits provided under the plan may not be

assigned or alienated,” 26 U.S.C. § 401(a)(13).

6 forms part of the bankruptcy estate and thus need not to be tested

for exempt status.

Under the equally well-kn own scheme of ERISA, provisions in

Title 29 of the U.S. Code identify the various types of ERISA plans

and specify what must be included in such plans; on the other hand,

provisions in Tit le 26 specify what must be included in an ERISA

plan for it to be “qualified” for tax purposes and thus be subject

to special tax provisions that entitle the plan’s sponsors and

p articipants to tax benefits provided under ERISA. Obviously,

ERISA is a largely parallel, dual system, jointly administered by

the Department of Labor and the Department of the Treasury, and

statutorily bifurcated into Titles 26 and 29 of the U.S. Code.

Moreover, many provisions and requirements found in Tit le 29 are

replicated in Title 26. Prominent among such twin provisions is

the requirement that an ERISA employee pension benefit plan contain

a restriction on alienation of the beneficial interests of the

participants in the plan. 11 Clearly, an ERISA plan like Home Care’s

is required to have an anti-alienation clause; likewise, for such

a plan to be “qualified” for tax purposes, it must contain an antialienation clause.12 See, e.g.

, Baker v. LaSalle , 114 F.3d 636, 641 (7 th Cir.

1997)(“[V]iolations of ERISA do not make ERISA inapplicable.”).

7 Nowhere in ERISA, however, is there a requirement that, to be

an ERISA plan and thus be governed by ERISA, a plan must be tax

qualified. Indeed, the converse is true: An ERISA plan that is

not or may not be tax qualified nevertheless continues to be

governed by ERISA for essentially every other purpose. 12 It would

be perverse, indeed, if the negligent or intentional act of an

ERISA plan sponsor, administrator, or other fiduciary, that results

in disqualification for tax purposes could, ipso facto

, remove the

plan —— and thus the beneficial interests of the

employees/participants

—— from the aegis of ERISA and its

protections of the very interests for which the legislation was

adopted and is administered in parallel by the Treasury and Labor

Departments. The instant case is a perfect example: Were the rule

otherwise, the Debtor’s beneficial interest in her ERISA employee

pension ben efit plan, replete with restrictions on voluntary and

involunta ry alienation and thus facially excludable from the

Debtor’s bankruptcy estate under § 541(c) (2) of the Bankruptcy

Code, could be stripped of all ERISA protection, including

enforceable nonbankruptcy restrictions on transfer, by the failure

of her employer

—— beyond any control of the Debtor

—— to maintain

tax qualification of the Plan.

Although the excellent and comprehensive appellate briefs of

the parties c ontain detailed analyses of the statutory and13 504 U.S. 753 (1992).

14 Id. at 765.

8 jurisprudential development of this area of the law, we are

satisfied that consideration of two opinions

—— one from the United

States Supreme Court and the other from the U.S. Court of Appeals

for the Seventh Circuit —— provide all the guidance and precedent

needed to decide this appeal, which presents a matter of first

impression in this circuit.

The question whether the beneficial interest of a debtor in an

ERISA retirement plan and trust that contains an ERISA-appropriate

and ERISA-enforceable restriction on transfer comes within the

ambit of § 541(c)(2)’s exclusion was answered definitively and in

the affirmative by the United States Supreme Court in Patterson v.

Shumate

. 13 The Court held unequivocally that § 541(c)(2)’s

requirement that a restriction on transfer of a beneficial interest

of the debtor in a tru st be enforceable “under applicable

nonbankruptcy law” is not limited to enforce ability under state

law; it suffices that su ch a restriction in an “ERISA-qualified

pension plan” 14 be enforceable under some federal law other than

bankruptcy law

—— there, as here, ERISA. In its opinion, however,

the Court inadvertently opened another jurisprudential Pandora’s

Box when, for reasons that ar e not apparent to us, it coined the

phrase “ERISA-qualified pension plan” which appears nowhere in

ERISA’s statutory language. The phrase is neither a term of art15 The ERISA plan considered in Patterson was tax

qualified, so, alone, Patterson does not dispose of this aspect

of the instant case.

16 114 F.3d 636 (7 th Cir. 1997).

17 Indeed, the equities —— frequently a consideration in

disposing of bankruptcy cases —— weigh more heavily in favor of

the Debtor here than they did for the plan participant in Baker

. The employee whose beneficial interest in Baker ’s employee

pension benefit plan was at issue there was a major stockholder

in the company that sponsored the ERISA plan in question and was

a party to transactions that brought that plan’s tax

qualification into question. In contrast, the Debtor here was a

common law employee of the Plan’s sponsor, Home Care, completely

remote from the management of the Company and the Plan.

9 nor a defined term for purposes of ERISA. Moreover, § 541(c)(2)

makes no reference to ERISA, much less to an ERISA-qualified plan.

Nevertheless, one line of Patter son progeny comprises a body of

jurisprudence concerning a question not answered in P atterson :

Whether, to be “ERISA-qualified,” the plan must be “qualified” for

tax purposes. 15 For present purposes, it suffices to note that

bankruptcy courts and district courts have answered that question

both ways.

To date only one federal court of appeals has addressed the

tax qualification issue head on: the Seventh Circuit, in B aker v.

LaSalle

. 16 The operable facts in B aker are on all fours with those

we consider today. 17 Given the congruency of the cases, we find it

appropriate to quote one lengthy but dispositive paragraph from

Judge Easterbrook’s opinion in Baker :

Patterson states its holding this way: “a

debtor’s interest in an ERISA-qualified

pension plan may be excluded from the property18 Baker , 114 F.3d at 638.

19 Id. at 638-39.

10 of the bankruptcy estate pursuant to §

541 (c)(2).” 504 U.S. at 765, 112 S. Ct. at

2250. What is an “ERISA-qualified” plan? The

term does not appear in the statute, and its

provenance is mysterious. Some plans are t ax

qualified, a term of art meaning that

contributions to the plan are deductible at

the corporate level and not ta xed to the

employee until the plan distributes benefits.

Taxation has nothing to do with the question

at hand, however. Most likely, the Court used

“ERISA-qualified” to mean “covered by

Subchapter I of ERISA.” Not all pension plans

need contain an anti-alienation clause. See

29 U.S.C. § 1003(b). Early in its opinion the

Court referred to “the a nti-alienation

provision required for qualification under §

206(d)(1) of ERISA, 29 U.S.C. § 1056(d)(1).”

504 U.S. at 755, 112 S. Ct. at 2244.

Understanding “ERISA-qualified” to mean

nothing more complex than “containing the

anti-alienation clause required by § 206(d)(1)

of ERISA” makes the phrase mesh with the topic

of the opinion: whether ERISA is “applicable

nonbankruptcy law.” (Perhaps the term “ERISAqualified” has some significance elsewhere in

the law; our discussion of it s scope applies

only to the question whether a creditor can

reach funds in bankruptcy.) 18

Quite literally, everything contained in the quoted paragraph from

Baker applies here.

As Judge Easterbrook went on to observe, “Subchapter I of

ERISA covers every ‘employe e benefit plan’ established by an

employer engaged in interstate commerce, with five ex ceptions.” 1 9

Like the plan sponsor in Baker

, Home Care is engaged in interstate

commerce and none of these five exceptions applie s to it. ERISA

thus covers the Plan, which —— like the plan in Baker —— contains20 Id. at 639.

21 This opinion should not be construed as creating a per

se rule for this Circuit, making excludable under § 541(c)(2)

every beneficial interest of every participant in every ERISA

retirement plan and trust that purports to restrict transfer.

Patterson cannot be read as holding that the entire balance of

every participant’s beneficial interest in every “ERISAqualified” plan and trust is ipso facto excludable from the

bankruptcy estate of that participant, and this opinion should

not be read that way either. Like the Seventh Circuit in Baker

, “[w]e do not read Patterson to say that money readily available

to participants for current consumption necessarily is

unavailable to repay debts.” Baker at 638. For example, we can

conceive of a provision in an ERISA trust entitling the

participant “to invade the principal of a defined-contribution

plan for his own purposes —— to take a loan that can be converted

11 an ERISA anti-alienation clause. And, like the Seventh Circuit in

Baker

, we are satisfied that “§ 541(c)(2) of the Bankruptcy Code

excludes the [P]lan’s value from [the Debtor’s] estate in

bankruptcy.” 20

III.

Conclusion

We discern no reason to depart from the Seventh Circuit’s

a nalysis in Baker or to reach a different legal conclusion . We

agree with the Baker court that taxation and tax qualification of

employee pension benefit pl ans have nothing to do with the

bankruptcy exclusion at issue in this case. Joining the Seventh

Circuit, we hold for this Circuit that, for purposes of §

541(c)(2)’s exclusion of a debtor’s non-transferable beneficial

interest in an ERISA employee pension benefit plan such as Home

Care’s, the fact that the plan is not or may not be “qualified” for

tax purposes does not preclude excludability. 21to a withdrawal for failure to repay, or to accelerate

disbursement directly, as many plans provide once the employee

reaches a specified age....But because [the Trustee] does not

argue, and the record does not suggest, that [the Debtor]

lawfully could have withdrawn any of the funds remaining in [her]

account at the time the bankruptcy case began, we do not pursue

the question.” Id.

12 AFFIRMED.