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FILED

DEC 05 2014

SUSAN M. SPRAUL, CLERK

U.S. BKCY. APP. PANEL

OF THE NINTH CIRCUIT

NOTFOR PUBLICATION

UNITED STATES BANKRUPTCY APPELLATE PANEL

OF THE NINTH CIRCUIT

In re: ) BAP No. AZ-13-1307-JuKiD

)

BRITTANY LE’VON MILLER, ) Bk. No. AZ-12-17346-EPB

)

Debtor. )

______________________________)

)

BRITTANY LE’VON MILLER, )

)

 Appellant, )

)

v. ) M E M O R A N D U M*

)

DAVID M. REAVES, Chapter 7 )

TRUSTEE, )

)

Appellee. )

______________________________)

Argued and Submitted on November 20, 2014

at Phoenix, Arizona 

Filed - December 5 2014

Appeal from the United States Bankruptcy Court

for the District of Arizona

Honorable Eddward P. Ballinger, Jr., Bankruptcy Judge, Presiding

_________________________

Appearances: Brian M. Blum of The Turnaround Team, PLLC,

argued for appellant Brittany Le’Von Miller;

appellee David M. Reaves, Chapter 7 Trustee,

argued pro se.

________________________

Before: JURY, KIRSCHER, and DUNN, Bankruptcy Judges.

* This disposition is not appropriate for publication.

Although it may be cited for whatever persuasive value it may

have (see Fed. R. App. P. 32.1), it has no precedential value. 

See 9th Cir. BAP Rule 8013-1.

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Chapter 71 trustee David M. Reaves (Trustee) filed a motion

in the reopened case of debtor Brittany Le’Von Miller seeking to

revoke the § 554(c) technical abandonment of debtor’s income tax

refund. The bankruptcy court granted Trustee’s motion, and this

appeal followed. Because the bankruptcy court summarily granted

Trustee’s motion without making specific findings of fact and

conclusions of law on the record sufficient to allow review, we

VACATE the order granting the motion and REMAND for the court to

make appropriate findings of fact and conclusions of law. 

 I. FACTS

Debtor filed her chapter 7 petition, schedules and

statement of financial affairs in August 2012. In Schedule B,

debtor listed at item eighteen “[a]pproximately 60% of Potential

2012 Tax Refund,” and stated the value as “[u]nknown.” In

Schedule F, debtor listed $52,752.00 in unsecured debt. 

On October 25, 2012, Trustee filed his report of no

distribution. Debtor subsequently received her discharge and

the case was closed. 

On May 9, 2013, Trustee received debtor’s 2012 income tax

refund in the amount of $3,259.00 directly from the Internal

Revenue Service (IRS). The same day, Trustee filed a withdrawal

of his no distribution report and a motion to reopen debtor’s

case for the purpose of administering the asset. Debtor

objected, contending the income tax refund was technically

1 Unless otherwise indicated, all chapter and section

references are to the Bankruptcy Code, 11 U.S.C. §§ 101-1532. 

“Rule” references are to the Federal Rules of Bankruptcy

Procedure and “Civil Rule” references are the Federal Rules of

Civil Procedure.

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abandoned under § 554(c) because it was listed in Schedule B. 

The bankruptcy court granted Trustee’s motion to reopen debtor’s

case by order entered on May 14, 2013. 

Trustee then filed a motion to revoke abandonment of the

income tax refund. As a threshold matter, Trustee argued that

the mere listing of a “potential” tax refund with an “unknown”

value was not sufficient to invoke the technical abandonment of

the asset under § 554(c). Under this theory, Trustee asserted

that the income tax refund remained property of the estate under

§ 554(d). Alternatively, Trustee moved for an order revoking

the technical abandonment of the asset on the basis of mistake

or inadvertence. Trustee contended that neither the existence

nor the amount of any refund could have been known by him at the

time the petition was filed or before the case was closed. He

further argued that debtor would not suffer any undue prejudice

by revocation of the abandonment since the refund was sent

directly to him. In other words, debtor did not receive and

spend the refund believing she had the right to do so. 

Debtor argued in response that Trustee should have known 

she would receive a significant tax refund based upon her tax

refund history which was shown by income tax returns from prior

years and pay stubs provided to Trustee. Debtor asserted that

Trustee had the option of keeping the case open until receipt of

the tax refund or review of her tax return, but he chose not to

do so.2 

2 In essence, debtor’s argument acknowledges that had the

case remained open until Trustee received the 2012 federal income

(continued...)

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After a hearing on the matter, the bankruptcy court took

the matter under advisement. The next day, the court issued a

minute entry which simply stated that the court was granting

Trustee’s motion. 

On July 2, 2013, debtor filed a timely notice of appeal. 

Thereafter, the Panel issued an order questioning whether

the minute entry constituted an appealable final order. The

bankruptcy court subsequently entered an order granting

Trustee’s motion. 

 II. JURISDICTION

The bankruptcy court had jurisdiction under 28 U.S.C.

§§ 1334 and 157(b)(2)(A). We have jurisdiction under 28 U.S.C.

§ 158. 

III. ISSUE

Whether the bankruptcy court erred in revoking the

technical abandonment of the income tax refund.

 IV. STANDARD OF REVIEW

A bankruptcy court’s decision on a motion to revoke a

technical abandonment is reviewed for abuse of discretion. 

Vasquez v. Adair (In re Adair), 253 B.R. 85, 88 (9th Cir. BAP

2000). In determining whether the bankruptcy court abused its

discretion we first determine de novo whether the bankruptcy

court identified the correct legal rule to apply to the relief

requested and then, if the correct legal standard was applied,

2(...continued)

tax refund, the bankruptcy estate’s pro-rated share of that

refund would have been subject to administration for the benefit

of the debtor’s creditors.

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we determine whether the court’s application of that standard

was “(1) illogical, (2) implausible, or (3) without support in

inferences that may be drawn from the facts in the record.” 

United States v. Loew, 593 F.3d 1136, 1139 (9th Cir. 2010).

V. DISCUSSION

Section 541(a)(1) provides that property of the estate

includes all legal or equitable interests of the debtor in

property as of the commencement of the case. Debtor’s right to

receive a tax refund constituted an “interest in property,”

which was included in property of her estate. See Newman v.

Schwartzer (In re Newman), 487 B.R. 193, 199–200 (9th Cir. BAP

2013). Estate property, such as a pro-rata portion of the

income tax refund, would revert to debtor if the asset was

abandoned under § 554(c). The so-called “technical abandonment”

may occur automatically upon closing a case because § 554(c)

provides, “[u]nless the court orders otherwise, any property

scheduled under section 521(1) of this title not otherwise

administered at the time of the closing of a case is abandoned

to the debtor. . . .” 

The plain language of § 554(c) states four requirements for

technical abandonment: (1) the tax refund must have been

properly scheduled; and (2) not administered by the trustee;

(3) debtor’s case must close; and (4) abandonment is to the

debtor. If these requirements are met, technical abandonment of

the asset occurs and is generally irrevocable. DeVore v.

Marshack (In re DeVore), 223 B.R. 193, 197 (9th Cir. BAP 1998). 

“The rationale for the general rule is that once an asset has

been abandoned, it is no longer part of the estate and is

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effectively beyond the reach and control of the trustee. Courts

have also noted the policy of preserving finality.” Id. at 198. 

Notwithstanding the general rule, under the plain

language of § 554(c) the bankruptcy court has discretion to

modify or revise any technical abandonment simply by ordering

otherwise. Id. The DeVore Panel noted that “the statute does

not limit such an order to the period prior to case closure . .

. and courts have set aside technical abandonments in

‘appropriate circumstances.’” Id. Revocation may be

appropriate where a debtor provided a trustee with false or

incomplete information about an asset or the trustee abandoned

the asset based on mistake or inadvertence and revocation will

not cause undue prejudice. Id. at 198. 

Trustee’s motion seeking revocation of abandonment of the

income tax refund initiated a contested matter, subject to the

procedures set forth in Rule 9014. In contested matters, a

bankruptcy court must make findings of fact, either orally on

the record, or in a written decision. See Rule 9014(c)

(incorporating Rule 7052, which in turn incorporates Civil

Rule 52).3 These findings must be sufficient to enable a

3 Civil Rule 52(a)(1) provides in relevant part:

(a) Findings and Conclusions. 

(1) In General. In an action tried on the facts without

a jury or with an advisory jury, the court must find

the facts specially and state its conclusions of law

separately. The findings and conclusions may be stated

on the record after the close of the evidence or may

appear in an opinion or a memorandum of decision filed

by the court.

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reviewing court to determine the legal and factual bases for the

court’s ruling. Vance v. Am. Haw. Cruises, Inc., 789 F.2d 790,

792 (9th Cir. 1986). 

We are hampered in our review by the bankruptcy court’s

lack of findings. The bankruptcy court recognized that it had

discretion to revoke the technical abandonment, but did not

engage in an analysis addressing the circumstances under which

revocation of technical abandonment is proper as articulated in

DeVore. It is unclear whether the bankruptcy court thought

debtor provided Trustee with incomplete information about the

tax refund in her schedules or thought Trustee abandoned the

asset based on mistake or inadvertence. In short, although the

court granted Trustee’s motion, it did not explain what factors

or considerations it relied upon for its decision.

VI. CONCLUSION

Because there are no findings of fact or conclusions of law

regarding the underlying substantive questions, we VACATE the

order granting Trustee’s motion and REMAND for further

proceedings consistent with this Memorandum disposition. 

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