California Private Retirement Plans re 2009 In Re Rucker Court Opinion

Adkisson's CALIFORNIA PRIVATE RETIREMENT PLANS Creditor Exemptions Under CCP § 704.115(a)

In re Rucker, 570 F.3d 1155 (9th Cir., 2009).



United States Court of Appeals,


Ninth Circuit.


In the Matter of Lloyd Myles RUCKER, Debtor,


Ronald A. Cunning, Appellant,




Lloyd Myles Rucker, Appellee.


In the Matter of Lloyd Myles Rucker, Debtor,


Lloyd Myles Rucker, Appellee-Cross-Appellant,




Ronald A. Cunning, Appellant-Cross-Appellee.


Nos. 08-55652, 08-55655.


Argued and Submitted May 8, 2009.


Filed June 26, 2009.


Attorneys and Law Firms


*1157 Kyra E. Andrassy and Evan D. Smiley, Weiland, Golden, Smiley, Wang Ekvall & Strok, LLP, Costa Mesa, CA, for the appellants/cross-appellees.


Mark Bradshaw, Shulman Hodges & Bastian LLP, Foothill Ranch, CA, for the appellee/cross-appellant.


Appeal from the United States District Court for the Central District of California, Margaret M. Morrow, District Judge, Presiding. D.C. No. 8:06-cv-01022-MMM.


Before: B. FLETCHER, RAYMOND C. FISHER, and RONALD M. GOULD, Circuit Judges.




GOULD, Circuit Judge:


Facing a civil judgment debt of more than $6.5 million, Lloyd Myles Rucker declared bankruptcy and tried to exempt his assets as belonging to private retirement plans under California Civil Procedure Code ("CPC") sec. 704.115. Rucker had previously placed the assets in pension and 401(k) plans funded by his wholly owned corporations. The bankruptcy court denied the exemption on the explicit ground that Rucker's retirement plans were not designed and used primarily for retirement purposes. The district court saw it otherwise and reversed this judgment. We conclude, after considering the totality of the circumstances, that the bankruptcy court's prior decision was not clear error, and we therefore reverse the district court. Because the applicable law was not free from doubt, we elaborate our reasons for disagreement with the district court's assessment.




In 1997 Ronald Cunning and Ronald Cunning D.D.S., Inc. (collectively "Cunning"), obtained a civil judgment against *1158 Rucker for $3.2 million. Rucker served 30 months in jail for his criminally fraudulent conduct that gave rise to the judgment. See United States v. Rucker, 132 F.3d 41 (9th Cir.1997) (unpublished); United States v. Rucker, 107 F.3d 18 (9th Cir.1996) (unpublished). With interest, Rucker now owes more than $6.5 million to Cunning on the judgment.


In 2001 Rucker established the Lloyd Rucker Defined Benefit Pension Plan (the "Pension Plan") and several 401(k) plans (the "401(k) Plans"). The Plans were associated with three of Rucker's wholly owned corporations (the "Controlled Corporations"), and Rucker was the sole employee beneficiary of his Plans. From 2001 to 2005 Rucker aggressively funded the Plans both personally and through his Controlled Corporations. In most of these years Rucker wilfully caused the Plans to be "overfunded," in that contributions to them exceeded the annual limits imposed by the Internal Revenue Code. See 26 U.S.C. sec. 401(a)(16) (stating that retirement plans must adhere to contribution limits to earn favorable tax treatment). The overfunding amount was about 20 percent of the total value of the Plans. Also, contributions to the Plans by the Controlled Corporations were markedly substantial in relation to the salaries the corporations paid to Rucker, in some instances exceeding his salary. For example, in 2001 and 2002 the Controlled Corporations contributed at least $30,000 more each year to Rucker's retirement plans than they paid to him in salary. And in 2003 and 2004 Plan contributions were about equal to Rucker's salary.


Rucker's Plan activities quite plainly violated several Internal Revenue Service ("IRS") rules. The bankruptcy court found that Rucker "repeatedly failed to accurately disclose" to the IRS contributions made by the Controlled Corporations. Between 2002 and 2004 Rucker contributed $160,000 more to the 401(k) Plans than he disclosed to the IRS, and in 2003 alone he contributed about $150,000 more to the Pension Plan than he first reported. The record also shows that in 2003 Rucker directed a wholly owned offshore corporation to contribute $120,000 to his Plans via a foreign bank account, even though the offshore corporation was not a plan sponsor permitted to contribute to the Plans. Finally, in 2003 the Pension Plan purchased property on which Rucker lived rent-free for six months. However, the total rental value of the property for that time period constituted less than four percent of the Plan assets. Apart from this relatively small constructive rent payment, Rucker has not borrowed or withdrawn money from his Plans. The general picture is that Rucker disregarded IRS rules in funding his Plans but that he generally did not withdraw money from his Plans for his personal use.


When Rucker filed for bankruptcy his Plans were worth about $1.2 million. By contrast, Rucker has paid Cunning virtually nothing on the judgment. Rucker has also said that he has no plans to pay any part of the judgment. Rucker explained: "It would be like paying into a black hole."


After Cunning increased his collection efforts in 2005, Rucker filed for Chapter 7 bankruptcy in Florida, but he did not meet the venue requirements and the case was transferred to the Central District of California. In the California federal bankruptcy court, Rucker declared as exempt his assets in all the Plans under CPC sec. 704.115(b), which exempts "all amounts held, controlled, or in process of distribution by a private retirement plan." Cunning objected to the exemption, claiming that the Plans were not exempt because they were not designed or used primarily for retirement purposes.


*1159 After a bench trial, the bankruptcy court sustained Cunning's objection and determined that the Plans were not exempt because Rucker designed and used the Plans primarily to shield his assets from Cunning. Instrumental in the bankruptcy court's reasoning were the facts that Rucker overfunded the Plans, that Rucker took at least one constructive rent payment, and that Rucker did not accurately disclose his contributions as required by IRS regulations. The bankruptcy court also found explicitly that Rucker lacked credibility.1




Rucker does not challenge the bankruptcy court's adverse credibility finding, possibly because it is supported by voluminous evidence in the record. For example, Rucker first testified that he never used Controlled Corporation funds to pay personal expenses, but then changed his testimony after being presented with evidence of corporate checks used to pay for, among other things, an engagement ring.


Rucker appealed to the district court, which reversed the bankruptcy court and held that although Rucker may have created the Plans in part to shield assets, he was still entitled to the exemption because the Plans were designed and used primarily for retirement purposes. Cunning appeals the district court's reversal of the bankruptcy court.2




By taking this appeal Cunning implicitly contends that we have jurisdiction, even though Cunning has flagged some questions about jurisdiction. The jurisdictional issue arises because, after deciding that Rucker's Plans were designed and used primarily for retirement purposes, the district court remanded to the bankruptcy court to address a separate factual issue that had not been raised by the parties. Rucker urges that we have jurisdiction in an argument framed as a cross-appeal to the district court's remand. It is always our duty to address jurisdictional issues, and so we do so here even though Cunning has invoked our jurisdiction and Rucker agrees to it. See Diaz-Covarrubias v. Mukasey, 551 F.3d 1114, 1117 (9th Cir.2009).


We have jurisdiction over "all final decisions" of the district court, including decisions made in its bankruptcy appellate capacity. 28 U.S.C. sec. 158(d). Applying a "pragmatic approach in determining finality under sec. 158(d)," Vylene Enters., Inc. v. Naugles, Inc. (In re Vylene Enters., Inc.), 968 F.2d 887, 894 (9th Cir.1992), we conclude that the district court decision was a final, appealable order because the parties never contested and verbally stipulated the factual issue that led to the remand, as Cunning conceded before the bankruptcy court.


The evidence taken together squarely raises the issue of whether a person who funds a retirement plan both for retirement purposes in part and to shelter assets and avoid paying debts in part has acted primarily for retirement purposes. The district court reasoned that if the evidence here showed dual purposes, it nonetheless could not conclude that the funding was primarily to avoid a debt. However, when we look at the totality of circumstances and give deference to the bankruptcy court's factual findings after trial, we come to a different conclusion.




This case turns in part on our assessment of the appropriate standards of review. Because we are in as good a position as the district court to review the findings of the bankruptcy court, we independently review the bankruptcy court's decision. Rifino v. United States (In re Rifino), 245 F.3d 1083, 1086 (9th Cir.2001). We review de novo the bankruptcy court's decision on the scope of the exemption for private retirement plans provided by CPC sec. 704.115. Dudley v. Anderson (In re Dudley), 249 F.3d 1170, 1173 (9th Cir.2001). However, our precedent establishes that "whether a plan is designed and used for retirement purposes is a question of fact that we review for clear error." Jacoway v. Wolfe (In re Jacoway), 255 B.R. 234, 237 (9th Cir.BAP2000); see also *1160 Simpson v. Burkart (In re Simpson), 557 F.3d 1010, 1014 (9th Cir.2009) (reviewing for clear error whether the features of a retirement instrument "demonstrate that the product's primary purpose and effect [is] ... a retirement plan" under CPC sec. 704.115). Our conclusion that a clear error standard governs review of the bankruptcy court's assessment whether a plan's funding is primarily for retirement purposes is a key factor to our evaluation of the merits of the appeal. The district court erred by applying de novo review to the bankruptcy court's factual determination that Rucker's Plans were not designed and used primarily for retirement purposes.3 Applying the clear error standard, we reach a different conclusion than did the district court, and we reaffirm the bankruptcy court's decision.




In determining that de novo review applied, the district court relied on Cisneros v. Kim (In re Kim), 257 B.R. 680, 684 (9th Cir.BAP 2000), which held that when facts are not in dispute, the application of law to fact is reviewed de novo. Yet, as Kim also held, retirement purpose is a factual question. See id. ("Whether a plan is designed and used for retirement purposes is a question of fact that the panel reviews for clear error."). That factual issue is hotly disputed here, so we are not reviewing the bankruptcy court's application of law to undisputed facts. Rather, we review the bankruptcy court's factual determination of retirement purpose; clear error review therefore applies.




Rucker claims that his Plan assets are exempt from his bankruptcy estate and beyond Cunning's reach because they fall within CPC sec. 704.115(b), which exempts "[a]ll amounts held, controlled, or in process of distribution by a private retirement plan."4 A plan used in part to shield assets is still exempt if it was designed and used primarily for retirement purposes. Dudley, 249 F.3d at 1176. We construe CPC sec. 704.115 "liberally ... for the benefit of the debtor." Lieberman v. Hawkins (In re Lieberman), 245 F.3d 1090, 1092 (9th Cir.2001). In fact, "[t]he very purpose of the exemption is to permit a judgment debtor to place funds beyond the reach of creditors, so long as they qualify for the exemption under the law." Schwartzman v. Wilshinsky, 50 Cal.App.4th 619, 629, 57 Cal.Rptr.2d 790 (1996).




We have previously held that this exemption may apply even to single-employee plans like Rucker's that are established by wholly owned corporations. See Cheng v. Gill (In re Cheng), 943 F.2d 1114, 1117 (9th Cir.1991) ("We recognize the odd result the statute creates-one-person medical corporations are treated the same as General Motors, creating the opportunity for shareholders of tiny corporations to abuse the exemption scheme-but we may not disregard the statute's language to address problems properly left to the legislature.").


In deciding whether a plan is designed and used primarily for retirement purposes, "[a]ll factors are relevant; but no one is dispositive." Bloom v. Robinson (In re Bloom ), 839 F.2d 1376, 1379 (9th Cir.1988). Many factors previously considered by us and by California courts concern the extent of a debtor's withdrawals or loans from the plan. See Jacoway, 255 B.R. at 239-40 (9th Cir.BAP 2000) (listing nonexhaustive factors considered by courts when evaluating CPC sec. 704.115(b), most of which relate to plan withdrawals or loans). Courts have also considered a debtor's subjective intent in deciding whether the plans have a retirement purpose. See Simpson, 557 F.3d at 1018 (stating that "while the debtor's subjective intent cannot create an exemption, it may take one away").


Because Rucker made no loans or withdrawals from his Plans other than the *1161 cited instance of his rent-free use of Plan property, he argues that we should allow the retirement plan exemption. His argument is not frivolous. We are not aware of any California or federal court in a published opinion denying an exemption under CPC sec. 704.115 in circumstances where the debtor made no significant withdrawals or loans from the plan. At the same time, however, we are also aware of no precedent stating that the lack of withdrawals or loans in itself conclusively establishes a primary retirement purpose. Instead, applicable precedent requires that we consider all the circumstances to determine whether Rucker's Plans were designed and used primarily for retirement purposes. See Bloom, 839 F.2d at 1379-80 ("All factors are relevant; but no one is dispositive. Rather, all of them must be considered in the light of the fundamental inquiry-whether the plan was designed and used for a retirement purpose."). At the outset, we answer Rucker's argument by holding that the absence of loans or withdrawals from a private retirement plan, while significant, does not in itself guarantee that the plan was designed and used primarily for retirement under CPC sec. 704.115. Instead, a careful assessment of the totality of circumstances is the substantive standard governing our decision, and this standard may be applied absent any withdrawals of or loans from the disputed funds.


We conclude that the bankruptcy court did not commit clear error in determining that Rucker used his Plans primarily to hide assets from Cunning, and not primarily for retirement. Once we articulate the totality of circumstances standard, and recognize that a bankruptcy court decision on the fact-intensive issue of a retirement plan's primary purpose is reviewed only for clear error, we conclude that the bankruptcy court's initial decision on that issue must be here reaffirmed and the district court's contrary conclusion reversed.


We stress that Rucker engaged in egregious and deceptive conduct in funding his Plans. He consistently funded his Plans in excess of the contribution limits imposed by the Internal Revenue Code,5 and he repeatedly and wilfully lied to the IRS about the extent of his Plan contributions. Rucker also secretly contributed money to his Plans using a wholly owned offshore corporation and a foreign bank account. Rucker gave no explanation for his misrepresentations or for why anyone with a genuine retirement purpose would underreport the amount of money contributed into a retirement plan or secretly contribute from offshore corporations ineligible to participate in the plan. Rucker's behavior in hiding his contributions and lying to the IRS is more consistent with a primary goal of hiding assets than with a primary purpose of saving for retirement.




The district court discounted Rucker's overfunding in part because the case the bankruptcy court cited in considering overfunding, Jacoway, 255 B.R. at 240 n. 5, mentions only excessive loans and withdrawals, not excessive contributions. Although the district court is correct that Jacoway did not address overfunding, this does not mean that courts are prohibited from viewing overfunding as evidence of a non-retirement purpose. The violation of IRS regulations is one factor that impacts our totality of the circumstances analysis.


Our analysis of other factors further indicates that Rucker's Plans were designed and used primarily to shield assets. Rucker caused his Controlled Corporations in some years to contribute more to his Plans than they paid him in wages. Also, Rucker admits that he intends never to pay another cent of his "black hole" judgment and that his Plan contributions were motivated at least in part by a desire to hide assets. See Jacoway, 255 B.R. at 239 (listing *1162 "whether the debtor used the plan to hide otherwise ineligible assets ... from creditors" as a factor in making the "primarily for retirement" determination) (quotation marks omitted). Rucker's expressed goal of shielding his assets from Cunning is yet another factor suggesting that his Plans were not used primarily for retirement purposes. See Simpson, 557 F.3d at 1018 (holding that courts should consider in a section 704.115 analysis "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 retirement purposes").


In summary, when a court evaluates the totality of the circumstances to determine whether a private retirement plan is designed and used primarily for retirement purposes under CPC sec. 704.115, "[a]ll factors are relevant," and a court is not limited to considering only those factors previously considered by other California and federal courts. Bloom, 839 F.2d at 1379-80. Courts may also consider, as the bankruptcy court did here, whether the debtor overfunded the plan or violated other IRS rules in contributing to the plan; the contribution amount by a corporation relative to the debtor's wages from that corporation; and the debtor's credibility and subjective intent. None of these additional factors is required or dispositive. After considering the totality of the circumstances relating to Rucker's Plan activities, we conclude that the bankruptcy court did not make a clear error in its conclusion that the Plans were designed and used primarily to shield assets. We hold that Rucker's Plans are not exempt under CPC sec. 704.115.




A private retirement plan is not necessarily designed and used primarily for retirement under CPC sec. 704.115 merely because a debtor never withdraws or borrows from the plan. Here, Rucker's unlawful and deceptive behavior in funding his Plans indicates, considering all the circumstances, that his Plans were not designed and used primarily for retirement and thus are not exempt under CPC sec. 704.115. We agree with the bankruptcy court that Cunning's objection to the exemption should be sustained. We reverse the contrary conclusion of the district court. We remand for further proceedings consistent with this decision.6




By concluding that we have jurisdiction over this appeal, we decide in favor of Rucker's cross-appeal. That cross-appeal correctly asserted that the district court's order was a final decision and that its remand to the bankruptcy court on an unrelated factual issue was not necessary. As a result of our decision, neither party may raise the previously uncontested factual issue on remand.











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TEXT OF CCP § 704.115


California Code of Civil Procedure § 704.115.


     (a) As used in this section, “private retirement plan” means:


          (1) Private retirement plans, including, but not limited to, union retirement plans.


          (2) Profit-sharing plans designed and used for retirement purposes.


          (3) Self-employed retirement plans and individual retirement annuities or accounts provided for in the Internal Revenue Code of 1986, as amended, including individual retirement accounts qualified under Section 408 or 408A of that code, to the extent the amounts held in the plans, annuities, or accounts do not exceed the maximum amounts exempt from federal income taxation under that code.


     (b) All amounts held, controlled, or in process of distribution by a private retirement plan, for the payment of benefits as an annuity, pension, retirement allowance, disability payment, or death benefit from a private retirement plan are exempt.


     (c) Notwithstanding subdivision (b), where an amount described in subdivision (b) becomes payable to a person and is sought to be applied to the satisfaction of a judgment for child, family, or spousal support against that person:


          (1) Except as provided in paragraph (2), the amount is exempt only to the extent that the court determines under subdivision (c) of Section 703.070.


          (2) If the amount sought to be applied to the satisfaction of the judgment is payable periodically, the amount payable is subject to an earnings assignment order for support as defined in Section 706.011 or any other applicable enforcement procedure, but the amount to be withheld pursuant to the assignment order or other procedure shall not exceed the amount permitted to be withheld on an earnings withholding order for support under Section 706.052.


     (d) After payment, the amounts described in subdivision (b) and all contributions and interest thereon returned to any member of a private retirement plan are exempt.


     (e) Notwithstanding subdivisions (b) and (d), except as provided in subdivision (f), the amounts described in paragraph (3) of subdivision (a) are exempt only to the extent necessary to provide for the support of the judgment debtor when the judgment debtor retires and for the support of the spouse and dependents of the judgment debtor, taking into account all resources that are likely to be available for the support of the judgment debtor when the judgment debtor retires. In determining the amount to be exempt under this subdivision, the court shall allow the judgment debtor such additional amount as is necessary to pay any federal and state income taxes payable as a result of the applying of an amount described in paragraph (3) of subdivision (a) to the satisfaction of the money judgment.


     (f) Where the amounts described in paragraph (3) of subdivision (a) are payable periodically, the amount of the periodic payment that may be applied to the satisfaction of a money judgment is the amount that may be withheld from a like amount of earnings under Chapter 5 (commencing with Section 706.010) (Wage Garnishment Law). To the extent a lump-sum distribution from an individual retirement account is treated differently from a periodic distribution under this subdivision, any lump-sum distribution from an account qualified under Section 408A of the Internal Revenue Code shall be treated the same as a lump-sum distribution from an account qualified under Section 408 of the Internal Revenue Code for purposes of determining whether any of that payment may be applied to the satisfaction of a money judgment.




Published Court Opinions regarding California private retirement plans (sorted by date):


In re Daniel, 771 F.2d 1352 (9th Cir., 1985).


In re Bloom, 839 F.2d 1376 (9th Cir., 1988).


In re Crosby, 162 B.R. 276 (Bk.C.D.Cal., 1993).


Yaesu Electronics Corp. v. Tamura, 28 Cal.App.4th 8, 33 Cal.Rptr.2d 283 (1994).


Schwartzman v. Wilshinsky, 50 Cal.App.4th 619, 57 Cal.Rptr.2d 790 (1996).


In re Friedman, 220 B.R. 670 (9th Cir.B.A.P., 1998).


In re Phillips, 206 B.R. 196 (Bk.N.D.Cal., 1997).


In re Lieberman, 245 F.3d 1090 (9th Cir., 2001).


In re Barnes, 275 B.R. 889 (Bk.E.D.Cal., 2002).


In re Stern, 345 F.3d 1036 (9th Cir., 2003).


McMullen v. Haycock, 147 Cal.App.4th 753, 54 Cal.Rptr. 3d 660 (2007).


In re Rucker, 570 F.3d 1155 (9th Cir., 2009).


In re Segovia, 404 B.R. 896 (2009).


In re Simpson, 557 F.3d 1010 (2009).


In re Beverly, 374 B.R. 221 (9th Cir., B.A.P., 2011).


In re Chen, 2011 WL 2358653 (Bk.N.D.Cal., 2011).


Marriage of La Moure, 221 Cal.App.4th 1463, 15 Cal.Rptr.3d 417 (2013).


Salameh v. Tarsadia Hotel, 2015 WL 6028927 (S.D.Cal., 2015).


O'Brien v AMBS Diagnostics, LLC, 38 Cal.App.5th 553, 251 Cal.Rptr.3d 41 (Aug. 8, 2019).


Only published court opinions are included; non-published opinions are not useful as legal precedent and should not be relied upon for any purpose.




Leading Court Opinions and Legislative History of CCP § 704.115 -- The published court opinions, both state and federal, and the legislative history of CCP § 704.115 give valuable insight into how California private retirement plans should be properly structured and used. See Court Opinions and Legislative History page.


Voidable Transactions Issues (formerly: Fraudulent Transfers) -- As amply demonstrated by the case law, the law of voidable transactions (formerly: fraudulent transfers) has frequently and successfully been used by creditors to avoid transfers made to California Private Retirement Plans. Please see our Voidable Transactions page for more.


Plan Defect Issues -- Creditors have frequently been successful in busting California Private Retirement Plans because either (1) there was no real "plan", or (2) the plan was not substantially followed by the debtor. Read more on our Plan Defect Issues page.


ERISA, Tax-Qualified Plans and Non-Tax Qualified Plans -- Considers the types of private retirement plans as measured by ERISA and tax law, including ERISA-qualified plans, tax-qualified plans, and non-qualified plans. Read more on our ERISA and Tax Issues page.


Post-Distribution Exemption-Tracing Issues -- Considers the application of the exemption tracing statute, CCP § 703.080, to California Private Retirement Plans. Please visit our Post-Distribution Exemption-Tracing Issues page.


Services & Contact Information -- Jay Adkisson assists clients in creating California Private Retirement Plans in appropriate circumstances, and reviews existing plans for their defensibility against creditor challenges. Jay is also involved with litigation in attacking PRPs from the creditor's side, and defending them from the debtor's side. Please see our Services & Contact Information page.




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