Supreme Court Rules That Debtor Must Have Loan or Lease Payment for Means Test Deduction

In an 8-1 decision authored by Justice Kagan, the Supreme Court ruled today that an ownership expense is not "applicable" under the Means Test unless the Debtor has an actual payment. Ransom v. FIA Card Services, No. 09-907 (1/11/11). You can read the opinion here.

Justice Kagan framed the issue in this manner:

This case concerns the specified expense for vehicle-ownership costs. We must determine whether a debtor like petitioner Jason Ransom who owns his car outright, and so does not make loan or lease payments, may claim an allowance for car-ownership costs (thereby reducing the amount he will repay creditors). We hold that the text, context, and purpose of the statutory provision at issue preclude this result. A debtor who does not make loan or lease payments may not take the car-ownership deduction.

Opinion, pp. 1-2.

Justice Kagan described the means as designed to "help ensure that debtors who can pay creditors do pay them." Opinion, p. 2.

The Dictionary Approach to Ordinary Meaning

Justice Kagan used an ordinary meaning analysis and a dictionary to conclude that the ownership expense was not applicable.

The key word in this provision is “applicable”: A debtor may claim not all, but only “applicable” expense amounts listed in the Standards. Whether Ransom may claim the $471 car-ownership deduction accordingly turns on whether that expense amount is “applicable” to him.

Because the Code does not define “applicable,” we look to the ordinary meaning of the term. (citation omitted). “Applicable” means “capable of being applied: having relevance” or “fit, suitable, or right to be applied: appropriate.”Webster’s Third New International Dictionary 105 (2002). See also New Oxford American Dictionary 74 (2d ed. 2005) (“relevant or appropriate”); 1 Oxford English Dictionary 575 (2d ed. 1989) (“[c]apable of being applied” or “[f]it or suitable for its purpose, appropriate”). So an expense amount is “applicable” within the plain meaning of the statute when it is appropriate, relevant, suitable, or fit.

What makes an expense amount “applicable” in this sense (appropriate, relevant, suitable, or fit) is most naturally understood to be its correspondence to an individual debtor’s financial circumstances. Rather than authorizing all debtors to take deductions in all listed categories, Congress established a filter: A debtor may claim a deduction from a National or Local Standard table (like “[Car]Ownership Costs”) if but only if that deduction is appropriate for him. And a deduction is so appropriate only if the debtor has costs corresponding to the category covered by the table—that is, only if the debtor will incur that kind of expense during the life of the plan. The statute underscores the necessity of making such an individualized determination by referring to “the debtor’s applicable monthly expense amounts,” (citation omitted)—in other words, the expense amounts applicable (appropriate, etc.) to each particular debtor. Identifying these amounts requires looking at the financial situation of the debtor and asking whether a National or Local Standard table is relevant to him.

If Congress had not wanted to separate in this way debtors who qualify for an allowance from those who do not, it could have omitted the term “applicable” altogether. Without that word, all debtors would be eligible to claim a deduction for each category listed in the Standards. Congress presumably included “applicable” to achieve a different result.

Opinion, pp. 6-8.

This passage is the heart of the opinion. One word used according to its ordinary meaning decides the issue.

Making Sense of BAPCPA

As additional support for her conclusion, Justice Kagan noted that:

• this interpretation furthered the goals of BAPCPA; and
  

• this interpretation was consistent with the way in which the IRS applied the standards (although she was careful to point out that the "guidelines . . . cannot control if they are at odds with the statutory language")

You Have to Decide What Should Be Applicable to Determine What Applicable Means

Justice Kagan rejected the Debtor's argument that "applicable" referred to the applicable number of vehicles which the Debtor had in reference to the standards. Her approach was a functional one.

On this approach, the word “applicable” serves a function wholly internal to the tables; rather than filtering out debtors for whom a deduction is not at all suitable, the term merely directs each debtor to the correct box (and associated dollar amount of deduction) within every table.

This alternative reading of “applicable” fails to comport with the statute’s text, context, or purpose.

Opinion, pp. 11-12.

Actual vs. Applicable

Justice Kagan also pointed out that her approach avoided making "actual" and "applicable" mean the same thing. She noted that if a person's actual expense exceeded the standard, it would be capped. However, she refused to opine on whether a person who had less than the standard would be limited to the actual amount. She noted that both the debtor and the United States believed that the debtor received the full standard as long as any amount was incurred, while FIA Card Services contended that the debtor received the lesser of the standard or the actual amount. She said that because the debtor had no ownership expense, it was unnecessary to determine whether the debtor received the full standard or just the actual amount. See Opinion, p. 13, n. 8.

Overall, Justice Kagan's approach the statute is a pragmatic one. She ties her conclusion to a plausible reading of the text but shores up her interpretation with the purpose of the statute. She rejected the invitation to incorporate the IRS guidelines into the statute while allowing that they could be consulted so long as they didn't conflict with the text.

A Minority of One Says Stop Making Sense

Predictably, Justice Scalia dissented. In his typical eloquent manner, he did not agree with Justice Kagan's grammar lesson or use of canons of statutory construction.

The Court believes, however, that unless the IRS’s Collection Financial Standards are imported into the Local Standards, the word “applicable” would do no work,violating the principle that “‘we must give effect to every word of a statute wherever possible.’” (citation omitted). I disagree. The canon against superfluity is not a canon against verbosity. When a thought could have been expressed more concisely, one does not always have to cast about for some additional meaning to the word or phrase that could have been dispensed with. This has always been understood. A House of Lords opinion holds, for example, that in the phrase “‘in addition to and not in derogation of’” the last part adds nothing but emphasis. (citation omitted).

It seems to me that is the situation here. To be sure, one can say “according to the attached table”; but it is acceptable (and indeed I think more common) to say “according to the applicable provisions of the attached table.” That seems to me the fairest reading of “applicable monthly expense amounts specified under the National Standards and Local Standards.” That is especially so for the Ownership Costs portion of the Local Standards,which had no column titled “No Car.” Here the expense amount would be that shown for one car (which is all the debtor here owned) rather than that shown for two cars;and it would be no expense amount if the debtor owned no car, since there is no “applicable” provision for that on the table. For operating and public transportation costs, the“applicable” amount would similarly be the amount provided by the Local Standards for the geographic region in which the debtor resides. (The debtor would not first be required to prove that he actually operates the cars that he owns, or, if does not own a car, that he actually uses public transportation.) The Court claims that the tables “are not self-defining,” and that “[s]ome amount of interpretation” is necessary in choosing whether to claim a deduction at all, for one car, or for two. (citation omitted). But this problem seems to me more metaphysical than practical. The point of the statutory language is to entitle debtors who own cars to an ownership deduction, and I have little doubt that debtors will be able to choose correctly whether to claim a deduction for one car or for two.

Dissent, pp. 2-3.

Making Sense of BAPCPA


Here, Justice Scalia echoes his dissent in Hamilton v. Lanning where he unsuccessfully argued for a literal reading rather than a practical one. The difference here is that the word "applicable" here truly is ambiguous. Where either meaning is persuasive, one that is consistent with the purpose of the statute probably should carry more weight.

As with last term's opinions in Milavetz and Lanning, the majority wants to construe BAPCPA in a manner which avoids extreme results. Thus, the Court will not apply the DRA sections to require a creditor's lawyer to say "I am a Debt Relief Agency." Similarly, the Court will neither require a debtor to recognize phantom income or allow a debtor to take a phantom deduction.

Supreme Court Grapples With the Meaning of the Means Test

The first case argued before the Supreme Court this term was No. 09-907, Ransom v. FIA Card Services, N.A. You can find the transcript of the oral argument here. This case raises the issue of whether Courts should give the means test a literal interpretation or follow a more functional approach.

In the case of In re Ransom, 577 F.3d 1026 (9th Cir. 2009), the Ninth Circuit (in contrast to the Fifth, Seventh and Eighth Circuits) held that a debtor could not claim an ownership expense for a vehicle unless there was an actual loan or lease payment. The problem is that the means test incorporated the Local Standards, which allowed an ownership deduction, while the Internal Revenue Manual clarified that an ownership deduction could only be claimed if there was an actual ownership expense. This raised the question of whether the Court should follow what Congress said (apply the Local Standard = ownership deduction) or what they meant (apply the Local Standards in the same manner as the IRS would have applied them). For more background, you can read my prior article about the subject here.

The oral argument shows the Justices getting deep into the weeds of how the Means Test works and how it should work. While Justice Scalia shows a clear preference for the plain meaning approach, the other justices appear to be struggling to make sense of the test. This gives rise to some very thoughtful exchanges. It also gives rise to the justices, in their enthusiasm to ask questions, interrupting and talking over themselves.

Why Is That the Crux Of It?

Almost immediately, Justice Alito presses debtor's counsel on why the Court shouldn't follow the IRS's interpretation of the standards.

MR. BURKE: Now, the crux of this is whether or not courts are allowed to dig in and cut out pieces of the standard aggregate amount.

JUSTICE ALITO: Why is that the crux of it? Congress made reference to the local standards, right?

MR. BURKE: Yes.

JUSTICE ALITO: And were the -- was the commentary in the Collection Financial Standards in existence at the time when Congress enacted this provision?

MR. BURKE: There was a Collection Financial Analysis that was in place, and it was noted in 1998 as a prior version of the bill that ultimately wasn't passed.

JUSTICE ALITO: And that explains what the IRS understands the local standards to mean; isn't that right?

MR. BURKE: I would disagree with that. I would say -- well, it would -- it would explain what the IRS means, but that's where I would end it, because the IRS standards are used to collect taxes. They are discretionary. They -

JUSTICE ALITO: Well, I understand that, but Congress decided to make reference to the local standards in this bankruptcy provision, didn't it?

MR. BURKE: Standards.

JUSTICE ALITO: Yes.

MR. BURKE: It didn't go beyond that.

JUSTICE ALITO: And this -- and at the time when it did that, there was official IRS commentary regarding the meaning of those standards, correct?

MR. BURKE: For the IRS to use in collecting taxes.

JUSTICE ALITO: And your argument is that Congress intended to adopt the standards promulgated by the IRS, but not the IRS's interpretation of the standards.

MR. BURKE: Correct, not their methodology or interpretation.

Transcript, pp. 4-5.

First Reference to $1 And Absurd Results

In this exchange Justice Ginsberg attempts to argue that to have an ownership "cost," you must have a cost, while Justice Scalia points out the absurdity that even $1 of ownership cost would entitle the debtor to the full allowance.

JUSTICE GINSBURG: Doesn't the chart say "ownership costs"?

MR. BURKE (counsel for Debtor): Yes.

JUSTICE GINSBURG: And you would read that to mean non-costs as well? I mean, if the -- if the table is called ownership costs, then why not use the IRS's definition of what costs are, and that definition says, what, loan payments and lease payments?

MR. BURKE: Because you -- we have to look at it as a standard aggregate. And what I mean by that is -- okay, the Bankruptcy Code doesn't define ownership costs. And ownership costs could be the replacement value. It could be buying a new vehicle. It could be the costs associated with making payments on a vehicle.

What that -- that average number is, in this case, $471, is a nationwide figure that somebody would spend on average in a month. It doesn't mean that any one individual spends that amount.

JUSTICE SCALIA: Mr. Burke, isn't it -isn't it the case that, even on the other side's interpretation of it, it doesn't come down to actual costs anyway? Isn't it the case, or do I misunderstand it, that so long as there is one payment, you get the entire deduction?

MR. BURKE: That's their position, or even $1.

JUSTICE SCALIA: Even one payment of $1, you get the entire deduction. So to argue this case as though it's a question of whether you actually expend the money that you're getting the credit for is simply -- is simply false. You don't do that under either side's interpretation, right?

MR. BURKE: Again, I would perhaps -

JUSTICE SCALIA: I'm trying to help you, Mr. Burke.

(Laughter).

Transcript, pp. 5-7.

When Justice Scalia says, "I'm trying to help you," it's time to pay attention.

Does Ownership Mean Loan or Lease Costs?

In the next exchange, Justice Breyer wants debtor's counsel to concede that ownership costs means lease or loan payments, but he won't go there.

JUSTICE BREYER: Of course you have all kinds of costs dealing with ownership, but what the IRS says, what it says in the statute, is you are supposed to take the applicable costs from IRS. And what it has on page 5a is it has something called "ownership costs."

MR. BURKE: Correct.

JUSTICE BREYER: And it defines those as $471.

MR. BURKE: Correct.

JUSTICE BREYER: And then on 3a, where it says what ownership costs are, it says the transportation standards consist of nationwide figures for monthly loan or lease payments, referred to as ownership costs. So when I read that, I said ownership costs means monthly loan or lease payments, nothing else.

Now, you have all kinds of other things. It's just these words "ownership costs" don't refer to those other things, because of that definition given right there. That's what I thought Justice Ginsburg was initially asking.

JUSTICE GINSBURG: Yes, I was.

JUSTICE BREYER: And I -- and how -- how do you get out of that what I think of as very, very clear language which says what these standards refer to?

MR. BURKE: Because the standards refer to the numbers. It's a chart.

JUSTICE BREYER: Yes, but it doesn't -- for example, suppose you buy a dozen apples every month, and they cost you $48 extra. You're not going to say the ownership costs refer to the apples, even if you decorate the car with them.

(Laughter.)

MR. BURKE: What -- what -

JUSTICE BREYER: I mean, ownership costs refers to lease and loan payments. Nothing else.

Transcript, pp. 9-10.

What's the Language We're Dealing With?

At this point, Justice Scalia gets frustrated that everyone, including the debtor's lawyer, is talking about the statute in generalities without quoting the actual language.

JUSTICE SCALIA: What's the language we're dealing with, Mr. Burke? Do you want to quote the language to us?

Nobody's quoted the language. What does it say is applicable?

MR. BURKE: What the statute says is the applicable -- you shall get, mandatory, the applicable amounts specified based on where a debtor resides -

JUSTICE SCALIA: Wait. The -- the applicable amounts specified where?

MR. BURKE: In the national local standards.

JUSTICE SCALIA: Read the text of the statute, would you, please, for me? I couldn't even get it from your brief. You had to refer me back to the petition. Why isn't in an appendix to your brief or printed in the beginning of your brief, instead of kicking me back to dig out your petition?

MR. BURKE: "The debtor's monthly expenses shall be the debtor's applicable monthly expense amounts specified under the national local standards."

JUSTICE SCALIA: "Amount specified under" the standard.

MR. BURKE: Specific amount, "applicable" modifies "amounts specified."

JUSTICE SCALIA: "Applicable amounts specified," not the amounts specified if applicable.

MR. BURKE: Correct, based on where a debtor resides.

Transcript, pp. 10-12.

Deducting Nonexistent Costs

A little while later, Justices Breyer, Ginsberg and Kagan all join the conversation asking why a debtor could be allowed to deduct costs that are not incurred. This exchange marks the first time that Justice Kagan has spoken as an associate justice.

JUSTICE BREYER: Is there something wrong with the IRS saying what they mean? It says ownership costs means monthly loan or lease payments. Now, is there something

MR. BURKE: The problem

JUSTICE BREYER: That's what it says it means. Now, is there something illegal about it defining ownership costs in that way?

MR. BURKE: No, for the collection of taxes, there is not. But if you're going to use -- start digging into the manual, you might as well bring it all into 707(b), and, as we discussed earlier, there was language that said the collection financial analysis should be brought in, but that was deleted in the final version.

JUSTICE GINSBURG: Why not just -- it says you are supposed to look at the form; it says ownership costs. So the only thing you'd look at the IRS for is -- the manual -- is to define ownership costs. And they say ownership costs means those two things.

MR. BURKE: Well, I don't -- there's no reason to limit it. If you're going to -- the text doesn't say -- it says national local standards. It doesn't discriminate or give disparate treatment to that one item. If you're going to give it to one item, then it can be pulled in, and it should be -- the same treatment should be given to all items, and we should have to prove some type of a

JUSTICE GINSBURG: I don't follow that. If the simple thing is to just -- what does the word "costs" mean? And then you look to the IRS manual, and it tells you that "costs" means loan or lease payments.

MR. BURKE: To collect taxes, that's how they defined it. But in the statute it says you get "local standard amounts specified." It does not stretch it and say "under the IRS's interpretation." That language was taken out. And if we were to use the IRS's interpretation, here's the whole problem: It's discretionary. It goes up and down. It's based on an IRS revenue agent. It -- let me give you a separate example. Nobody

JUSTICE KAGAN: Mr. Burke, if we could stay with this. The $471 is derived by looking at the average loan or lease payments nationwide. Then, in addition to that, we know that the IRS has a separate category for operating costs that is meant to reflect costs of having a car that are not your loan and lease payments. So, between those two things, why wouldn't we say that ownership costs means your loan and lease payments, but operating costs means your other costs of having a car, and that you get the operating costs if you have a car but don't make loan and lease payments, and you get the ownership costs if you do make loan and lease payments?

MR. BURKE: Because to reach that, you have to go into the Internal Revenue Manual. It's not in the statute that says you have to owe on it to get it. And if you go into the Internal Revenue Manual -- let's look at operating expenses. What it says, in collecting taxes -- and it's in the Joint Appendix at pages 83 through 88. But what it says, when it comes to local national other expenses, an internal revenue agent has discretion. You only get these expenses -- this is the overall idea -- if they produce income or if it's for health and welfare.

And so, when we look at the Joint Appendix page 88, section B, under the local standard transportation expenses, when it talks about operating costs, which is something you just mentioned, it says you only get transportation expenses that are used to produce income or the health and welfare of an individual and their family. Plus, the fact that you own a car, the IRS under its discretion can take away the operating costs if it's on four cinder blocks in your backyard. You're not incurring fuel costs, mileage costs; you are not probably paying registration or any of those other operating costs. The IRS agent, under their manual, can take away that expense.

So, why stop and say, well, we're just going to look at the ownership costs? And all they're saying here is if you owe on it, you get it; if you don't owe, you don't get it. Let's not look at anything else in the Internal Revenue Manual, which is a 39-part, 500-page document that in some ways is almost incomprehensible, and direct the -

JUSTICE GINSBURG: Mr. Burke, the -- it's unusual to allow a deduction for the purpose of calculating disposable income although you don't have any expense. I understand how you get to that conclusion with respect to car ownership. Is there any other provision that in -- in calculating disposable income, you are allowed a deduction for an expense that you don't incur?

MR. BURKE: If the Court understands my view that Congress gave -

JUSTICE GINSBURG: No. The question -- is there anything else that works like this? You don't have the expense, nonetheless you have the deduction? Any -- I mean, there are a whole list of deductions, expenses. Is there any other one that works this way?

It doesn't matter whether you have the expense, in fact.

JUSTICE KAGAN: For example, Mr. Burke, what would happen if you didn't actually have any out-of-pocket medical costs? Could you still claim a deduction for out-of-pocket medical costs?

MR. BURKE: I'm saying you get all the deductions, whether you owe on it or not. Is there a specific one besides the car ownership that says you have to owe on it? No.

Transcript, pp. 13-18.

In this last exchange, Mr. Burke has grasped onto an important point. The Means Test was intended to take away discretion, while the IRS Collection Standards were intended to be used with discretion. Congress's choice of a standard invites ambiguity because it was not meant to be absolute. Justices Breyer, Ginsberg and Kagan all want the statute to make sense, while Justice Scalia and Debtor's counsel want it to mean what it says.

What Has to Be Actually Incurred?

From here, a number of the Justices get into a revealing discussion about whether other items in the Means Test must be actually incurred to be deducted.

JUSTICE SOTOMAYOR: Do they apply -- do the courts apply the housing and utilities listed amount whether or not you pay for a house or not, whether or not you rent?

MR. BURKE: There's two published cases I'm aware of, and both allowed it. One, somebody had military housing; one, the house was paid off. Both courts said you get it under the local standards. But the IRS manual would not give that to you, because under the local standards the IRS manual says you get the specific amount or your actual payment, whatever is less.

JUSTICE SCALIA: Of course, once again, Mr. Burke, this is -- I don't know why you don't point this out. This is not the difference between your position and the position of the other side. You get the deduction for the other side as well, whether or not you are making the payment. Now, maybe it can be adjusted by the trustee, but as far as the statute is concerned, so long as you make one payment of $1, under their theory you're entitled to claim the deduction; isn't that right?

MR. BURKE: That's correct.

JUSTICE SCALIA: So.

JUSTICE KENNEDY: My question, incidentally, about courts was not with reference to the car expense. It was with reference to the hypothetical or to the issue proposed by one of my colleagues, that said, what if you don't -- Justice Kagan -- suppose you don't have the medical expense. And the answer -- and your -- and I wanted to know if your answer is supported uniformly by the courts that have looked at this, or if there is also a split on that point?

MR. BURKE: I apologize for not understanding it. No, every other expense deduction that I have seen besides the car ownership, somebody gets it.

CHIEF JUSTICE ROBERTS: And they get it whether or not they incur that expense or not?

MR. BURKE: Correct.

CHIEF JUSTICE ROBERTS: In other words, food -- you don't have to say, well, he did spend this much money on food, so he gets the standard deduction.

MR. BURKE: Correct.

CHIEF JUSTICE ROBERTS: If he doesn't eat as much as somebody else, he gets the same deduction, right?

MR. BURKE: Correct. Or if he lives at home and mom cooks for him.

JUSTICE KAGAN: But, Mr. Burke, even you would say -- is this correct -- that if you don't own a car at all, you can't claim the car costs?

MR. BURKE: Yes.

JUSTICE SCALIA: Is that -- is that by reason of the Internal Revenue Service--

MR. BURKE: No.

JUSTICE SCALIA: -- manual, or is it by reason of the Bankruptcy Code itself?

MR. BURKE: It's by reason of the Bankruptcy Code that refers to the standards, and the standards specifically say you have one car, no cars, and you get a public transportation, or two cars; pick the one.

JUSTICE SCALIA: So it's in the chart -

MR. BURKE: It's in the chart.

JUSTICE SCALIA: -- that you claim -- okay.

JUSTICE ALITO: What if you own a car, but it's completely inoperable and it has no value? You buy it for a dollar. It's a junk car, and you're planning possibly to restore it at some point. Do you get the deduction then?

MR. BURKE: Based on a strict reading of the code, you get it. Now, would the IRS allow it? Again, that's a discretionary standard, but any time you have an objective test, there's going to be line-drawing and perceived unfairness on the outskirts.

JUSTICE KENNEDY: And would your answer be the same if the allowance was set, the decree was made, and -- and the debtor then went out and bought the junker to put in his driveway just in order to get the 400-plus dollars a month, or would that be deemed an evasion of the law that could be addressed by the Bankruptcy Court?

MR. BURKE: It can addressed by the Bankruptcy Court, and that's the beauty of the statute. We don't need to go into the Internal Revenue Manual. We just need their tables, because there's a provision, 1325(a)(3), that deals with good faith. So if it appears somebody is not acting in good faith, then -

JUSTICE BREYER: What is -- we've got about half the courts in the country agreeing with you. And so you've read all those arguments, and what in your opinion is the best one on the point, again, where I am stuck, which is Justice Ginsburg's original point? I mean, I can think of millions of examples. You have a form that says -- the employer says entertainment expenses. Then it defines entertainment expenses as food and transport, and they leave out movies, you know. Or you could have vacation expenses, and vacation expenses are defined as transport and hotel, and they leave out meals. And here we have a definition of ownership expenses, and they say leasing and loaning, and they leave out other forms of ownership.

MR. BURKE: Because -

JUSTICE BREYER: Now, the argument is, well, that's what they mean by it, so that's what applicable. Now, what's the best argument against that in those 50 cases? Why is it trying -- why to try to get an expense which isn't loan or lease? Have you any more right to it than if you tried to get an expense to my totally irrelevant apples? I mean, it doesn't fit within the applicable definition. What's the answer?

MR. BURKE: The means test is a form, and if you look at the form -- the means test is a form.

JUSTICE BREYER: I've looked at the form.

MR. BURKE: If you look at the form -

JUSTICE BREYER: Yes.

MR. BURKE: It just says -

JUSTICE BREYER: Ownership.

MR. BURKE: That's it. There's no definition in the form.

JUSTICE BREYER: But they -- two pages earlier they say what they mean by the word "ownership."

MR. BURKE: Not the -- the IRM does.

JUSTICE BREYER: Yes.

MR. BURKE: Not the statute and not the B22 form that's filled out by debtors.

JUSTICE BREYER: You say half the courts say, oh, you just sort of imagine what ownership expenses are, and anything that they can fall within that general English language word is what they can deduct; is that their approach? Because we -- you say cut off the definition, cut off the definition from the word "ownership"; don't use it. So what do we use to define what ownership is?

MR. BURKE: We don't have to. Congress gave standard amounts for -

JUSTICE BREYER: No, I know, but it's for ownership; it's not for, for example, whistling. It's for ownership. So -- so how do we define what that $471 attaches to? Do we use a State common law definition or something? How have they done it?

MR. BURKE: Because you can take it as a bunch of variables. It's not in the Bankruptcy Code. If -- so it could be replacement costs; it could be major repairs; it could be

JUSTICE SCALIA: Is this a problem distinctive to your case? Doesn't the other side have the same problem with ownership? Don't they acknowledge that even if you are leasing the car you get the deduction?

MR. BURKE: Yes.

JUSTICE SCALIA: I don't see why this is distinctive to your case. It's a problem both sides face. And we don't avoid it by coming out against you, do we?

MR. BURKE: No, we don't.

JUSTICE BREYER: Why?

JUSTICE ALITO: What if -- what if the definition of

JUSTICE BREYER: Why don't we?

JUSTICE ALITO: -- ownership costs was moved into the local standards themselves? Would the outcome be different then?

MR. BURKE: Are you saying in 707(b)?

JUSTICE ALITO: No. It's moved from the CFS to the local standards, which are referred to in the -in the code provision.

MR. BURKE: My answer would still be the same because that's not a congressional formula. That's a form that comes off the Department of Justice Website which administers the U.S. Trustee's program and that's their litigation position.

JUSTICE KAGAN: But, Mr. Burke, if the table said loan and lease costs, you wouldn't have a case? If it said -- instead of ownership costs, if it said loan and lease costs, then you would sit down and you would say I'm not entitled to that deduction?

MR. BURKE: No. I would say an individual who owns a car, whether they owe or not, gets the deduction because it's part of this aggregate standard.

JUSTICE KAGAN: Even if it's called loan and lease costs?

MR. BURKE: Correct. It's not a breakdown on what any one individual has. It's an aggregate.

The exchange is interesting because it shows that Supreme Court justices are not reluctant to talk over each other.

Grilling the Creditor's Lawyer

The attorney for FIA Card Services didn't get much past may it please the Court when she is pressed on whether costs must be actually incurred. Her position is that for a cost to be "applicable," it must be actually incurred. This would make the standards a ceiling rather than an entitlement. However, she then backed away and drew a distinction between the national and the local standards.

MS. MAYNARD: Mr. Chief Justice, and may it lease the Court: The Bankruptcy Code precludes an above median-income debtor like Petitioner from shielding from his creditors $471 a month for a car payment that he does not have. A debtor with -

JUSTICE SOTOMAYOR: -- food costs, housing costs, utility costs, by getting his parents to pay for those things and still take this deduction?

MS. MAYNARD: The statute allows a debtor to take an applicable monthly expense amount. So if the debtor truly has no food costs, then the food standard would be not applicable to the debtor, so

JUSTICE SOTOMAYOR: Your adversary said that only two courts have addressed this issue and have permitted those deductions. So under what reasoning would we apply a different standard to the car costs as opposed to those other costs?

MS. MAYNARD: Well, I think, with respect I think the cases he was talking about were housing.

JUSTICE SOTOMAYOR: Housing.

MS. MAYNARD: Right. So housing and car costs are part of the local standards. Food, clothing, house cleaning supplies, those are part of the national standards. The -- in our view, the text that goes along with -- accompanies the tables, which is not the Internal Revenue Manual -- it's just the pages reprinted at 1a to 3a of our brief. The Collection Financial Standards, the prefatory explanation for what the tables mean. In our view, that is -- goes along with -incorporated into the national local standards.

The national standards, Justice Sotomayor, are allowed, as long as you have under the calculations -- as explained in the standards, under the national standards, a debtor would receive the allowance in the table as long as they have any such expense, so regardless of amount. However, if they have no such expense, then they are taken out by the statutory language in the means test, which says that the standard must be applicable to the debtor. And

Transcript, pp. 26-27.

Another $1 Hypothetical and Absurd Results

CHIEF JUSTICE ROBERTS: So if they have pre-purchased their food expenses, so long as they have $1 of food expense they get the entire expense even though they're not incurring it?

MS. MAYNARD: If they are -

CHIEF JUSTICE ROBERTS: And there are things like, you can pay up, you know, have the grocery deliver your food every month and you can pay in advance, and if you're paid up, you still get the full food expense that is allowed?

MS. MAYNARD: No, Your Honor. I think if, over the 60-month period looking forward, you know, that you're going to -- you've already paid up for your food for the next 60 months and you're not going to incur any additional food expenses, no, then in that situation the standard would be inapplicable to you. You would be having no -- in that hypothetical

CHIEF JUSTICE ROBERTS: But if you paid $1 for food, you'd get the full amount for 60 months?

MS. MAYNARD: Under the standard. That's the way the standards operate, Your Honor. I haven't seen any cases litigated over food expense

CHIEF JUSTICE ROBERTS: So your argument leads to a result that's just as absurd as your colleague's result on the other side.

MS. MAYNARD: I don't believe so, Your Honor

CHIEF JUSTICE ROBERTS: I mean, that was a big part of your argument. You said his position leads to an absurd result, and yours is just as absurd.

MS. MAYNARD: I don't think so, Your Honor, for this reason, which is that the national standards are food, clothing, house cleaning supplies, things that you expect every debtor to have. You don't see much litigation about those expenses. The local standards, however, operate differently. In our view -- and our view's different from the government's, Justice Scalia. In our view, under the local standards and the way that they apply as explained in the Collection Financial Standards, is that the debtor is allowed their actual expense for the local standard or the amount in the table, whichever is less. So in the hypothetical.

Transcript, pp. 27-29.

Here the creditor's lawyer appears to have stumbled. Besides having the Chief Justice point out an absurd result, she has undermined the concept of using a mechanical calculation to determine a debtor's ability to pay. If the Local Standards are based on the lesser of the standards or the debtor's actual expense, then it is necessary to do a detailed examination of the debtor's actual expenses.

Where Does It Say That?

JUSTICE SOTOMAYOR: Where does it say that?

MS. MAYNARD: In our -

JUSTICE SOTOMAYOR: The debtor's monthly expenses shall be the debtor's applicable monthly expense amounts specified under the national and local standards. So the national and local standards have amounts listed. Where does it say you take only the actual, not the national or local standard?

MS. MAYNARD: I read that text, Your Honor -- again, the Court doesn't need to decide this maximum cap issue to decide this case, because the Petitioner has no expense whatsoever, and so it's not applicable to him.

But in our view, Justice Sotomayor -- in our view, you get it from the language of the statute that says the debtor's applicable monthly expense amounts specified under the national standards and local standards. And the way that we understand the national and local standards to work is, if you look at page it's explained on page 1a of the petition to our brief, the red brief. Maximum allowance -- it's the third paragraph down: "Maximum allowances for housing and utilities and transportation, known as the Local Standards, vary by location. Unlike the National Standards, the taxpayer is allowed the amount actually spent or the standard, whichever is less."

JUSTICE SOTOMAYOR: But that's -- but that's not what the provision at issue here says. It says you use the amount specified under the national standards, and you use actual for everything else. That's what the statute said. So now you're trying to move the actual into the first half of the text?

MS. MAYNARD: No, Your Honor, that's not how I understand the text. The text provides

JUSTICE SOTOMAYOR: Why would you even bother? Why don't you -- if -- if what you're arguing is that only actual expenses are -- are what you can claim, you wouldn't need the first half.

MS. MAYNARD: Yes, you would, Your Honor, because what the -- what the statute's purpose here is -- I mean, I think it's helpful to step back. Chapter 13 sends one to chapter 7's means test for the purpose of calculating the amounts reasonably necessary for the maintenance and support of the debtor. And Congress chose to import the -- the methodology of the national standards and local standards as a way both to set the categories of expenses that debtors could receive payments for, and, with the case of the national and local standards, to set the amounts. They were worried about capping upper discretion because Congress -- it's quite clear from the text and the legislative history -- was concerned about above-median-income debtors taking luxurious expense amounts.

JUSTICE SOTOMAYOR: So what you would have the statute read is: The debtor's monthly expenses shall be the debtor's applicable monthly expense amounts specified, as a -- as a maximum. You would have to add "maximum" somewhere there.

MS. MAYNARD: No, Your Honor, because the amount under the national standards, as the national standards operate, is the -- is an allowance, not an actual, and the amount under the local standards, as they operate, is the amount actually spent or the amount in the table, whichever is less. And, again -

Transcript, pp. 29-32.

The Creditor Makes a Good Point

While Chief Justice Roberts wants to talk about debtors who prepay their food expenses, the credit card company's lawyer makes a valid point. If you pay your car off, it means you didn't use that money to pay your credit cards. If you then receive an ownership deduction, you are shielding the same money from creditors twice--once when you used it to pay off the car and twice when you deducted it under the means test.

CHIEF JUSTICE ROBERTS: Your -- your position penalizes debtors who pay their expenses in advance, who don't incur additional debt to pay for things like their car. I would have thought the Bankruptcy Code would think that's a good thing, that they're not incurring debt that they can't afford to payoff, but instead, to the extent they can, they're paying expenses in advance. Why should somebody who does that be in a worse position than somebody -- than somebody who takes out a loan they can't afford to pay back?

MS. MAYNARD: Money is fungible, Your Honor, so to the extent the debtor has incurred expenses before going into bankruptcy instead of, as here, paying off this more than $85,000 in credit card debt, shouldn't be able to -

CHIEF JUSTICE ROBERTS: Well, he hasn't incurred -- he hasn't incurred expenses. It's the whole point, I guess, that he's paid for something.

MS. MAYNARD: He used his money, perhaps, to purchase his car outright, instead of to pay down his credit card debt, and so he has a salary of $50,000, and he has a credit card debt of $85,000, and he owns a 2-year car -- 2-year-old car outright. He should not be able to deduct, as a measure of his reasonably necessary expenses for his maintenance and support over the next 50 months, $28,000 that he doesn't need for a car payment that he doesn't make.

Transcript, pp. 32-33.

Local vs. National Standards and Actual vs. Standard Expenses

As the justices continue to press about whether expenses must be proven up, Ms. Maynard returns to her distinction between local and national standards.

JUSTICE SOTOMAYOR: So what you're proposing is that every debtor has to go to the Bankruptcy Court and show what their monthly food bills have been over what period of time, how much their personal supplies have been over what period of time? How can you calculate forward what they are going to spend on a monthly basis for each of those items? Isn't that the reason the tables are used, so that you don't have to do that?

MS. MAYNARD: Yes, Your Honor, and in the national standards, which all the items you just list are national standards, under the national standards you don't do the actuals. On page 1a, it explains: "Allowances for food, clothing and other items, known as the National Standards, apply nationwide except for Alaska and Hawaii.... Taxpayers are allowed the total National Standards amount for their family size and income level, without questioning amounts actually spent."

For -- yes, for those hard-to-calculate items, you do -- our position is you do get the amounts in the chart. For local standards -- the local standards, however, which include home, mortgage, lease expenses, utilities, and transportation, which include both ownership costs and operating costs, you get the actual or whichever is less.

JUSTICE SCALIA: I must say your position is more logical than the position that you read in some of the instructions applicable to the -- to the chart that's referred to in the Bankruptcy Code, but not others. I mean, it seems to me, if you're going to read in the requirement that have to have made a lease payment, you should also read in the requirement that you're referring to now, which would mean your deduction is limited by the -- by the amount of your lease payment.

I don't see why -- is there any reason why one would read in the other one and not read in yours?

MS. MAYNARD: Not in our view, Your Honor, because in our view the chart is -- is ambiguous about what the number stands for. And so in the national standards, the text, the prefatory text, explains that the amount is an allowance if you have the expense. In the local standards, the prefatory text explains that the amount operates as a cap.

But the important point for this case, Your Honor, is that you don't have to decide anything about the national standards because Petitioner is left at the statutory door. He has no applicable monthly expense amount for operating -

Transcript, pp. 33-35.

Having to resort to saying the chart is ambiguous when pressed does not help her case. She also has an unfortunate habit of telling the justices that they don't need their questions answered because they are irrelevant.

Replacing a Vehicle

Justice Kagan leads off an interesting discussion about whether the debtor should get the deduction if we know that there will be an ownership expense in the future. This is critical because one of the best arguments for allowing an ownership expense deduction when there is not a current loan or lease payment is that the debtor will likely need to replace the vehicle during a five year chapter 13 plan. The creditor responds that this is something which can be addressed by plan modification or even built into the plan.

JUSTICE KAGAN: Ms. Maynard, what would happen if the debtor had a car that was 200,000 miles old -- 200,000 miles, and it was going to break down, you know, within the next 5 years? Would the debtor then be able to take the deduction?

MS. MAYNARD: If the debtor owns the car outright at the time they file for bankruptcy, they would not get the deduction.

JUSTICE KAGAN: Even though if you look ahead, if you project forward, it's pretty clear that the debtor is going to have to incur those expenses?

MS. MAYNARD: They would not get the deduction under this calculation. However, under this Court's decision in Lanning, when one goes to project the disposable income, it's conceivable that the debtor could prove that it's known or virtually certain that they will need a new car and that that could be accounted for.

But -- but also the Bankruptcy Code in 1329 allows for modification of a plan, and so when the time arises that their car conks out and they need a new car, they can move to modify their plan. I think it's -

JUSTICE KAGAN: Well, the modification works for chapter 13, but it doesn't work for chapter 7; is that right?

MS. MAYNARD: Well, they make that statement in their reply brief, Your Honor, but I'm not sure exactly what they mean by that, because in chapter 7 this test is being used for a very different purpose.

It's the gateway; it's a presumptive test for abuse. And so, again, our reading makes perfect sense in that context because what you want to know is, does this debtor actually have moneys it can prepay its creditors, should it be -

* * *

MS. MAYNARD: So, in chapter 7, once you -if you decide it's presumptively --- not presumptively abusive, and you stay in chapter 7, then chapter 7 is a liquidation. There's no ongoing plan. So I -- all of your nonexempt assets are liquidated, your creditors are paid off, and then you are discharged. If 3 years from now your car conks out, you're just like you and me; you are not in bankruptcy, you just -- you try to make do.

Transcript, pp. 35-37.

We're Really Going to Get Into A Mess

JUSTICE BREYER: I think it is -- well, I'm trying to work out what was his point. And I don't blame him for this. But trying to figure it out, he says look: This whole thing was written for a different purpose than the IRS, and if we start reading all those things from the beginning into the tables, we're really going to get into a mess. For example, we are going to give people deductions when they have lease payments, even though they're not owners when they have lease payments. The company owns -- not even an ownership expense, but it does say use the lease payment. And then it has all these other things.

So forget it; do a simple thing. It says ownership expense. You go to the registry of motor vehicles and you say, is Smith the owner? And they'll tell you, yes or no. And if the answer is yes, he deducts $471. Sometimes that's too little; sometimes that's too much. But once we depart from that, we're really in a nightmare of trying to figure out what all these things mean that were written for other purposes.

So, what do you say to that?

MS. MAYNARD: I say, Justice Breyer, that there's nothing in the statute or the legislative history that suggests this was meant to be an overall budget for above-median-income debtors. This was about capping upper discretion and limiting the expenses available as reasonably necessary expenses for above-median-income debtors. And I think that point is made perfectly clear by the fact that if you can compare it to what happens now to a below-median-income debtor, a below-median-income debtor in the same situation as Petitioner, who owns his car outright, would be allowed no amount as an expense for his vehicle, because he doesn't have an actual expense that's reasonably necessary.

And I think that the 2005 Congress would think it was a senseless result, as they argue here, that Petitioner gets $471, above-median-income debtor, the very class of debtors with whom Congress was concerned in the 2005 amendments, to shield from his creditors over the life of the plan when he has no comparable expense.

Transcript, pp. 37-39.

Digging Into the Romanettes

In this final exchange, the Justices and Ms. Maynard get into an interesting discussion of the interaction between Romanette ii and Romanette iii of the Means Test. On the one hand, you do not count secured debt as an ownership expense under Romanette ii, while on the other hand, you do get the entire secured debt payment under Romanette iii. This points an interesting distinction between the IRS Collection Standards and the Means Test. By allowing unlimited deductions for secured debt under Romanette iii, the Ownership expense deduction under Romanette ii appears to be meaningless. Ms. Maynard makes an unconvincing argument that the Debtor gets the lesser of the debt payment or the Ownership Expense.

JUSTICE KENNEDY: What we are talking about is a paradigm of someone -- we're comparing someone who has a $470-a-month car payment and he gets -- and he gets the deduction. Why is that, in light of the second sentence -- let's see, the third sentence of the statute, which says, "Notwithstanding any other provision of this clause, the monthly expenses of the debtor shall not include any payments for debts." I mean, that would be the car company. And has -- has that point been litigated?

MS. MAYNARD: That -- that sentence is somewhat of a conundrum, Your Honor, and I think that the Court doesn't need to decide the meaning here, because whatever it does, it doesn't get Petitioner within the Romanette ii calculation -

JUSTICE KENNEDY: No -- no, but it would -

MS. MAYNARD: -- because he has no payment.

JUSTICE KENNEDY: It would eliminate the anomaly that -- one of the principal anomalies. There are many anomalies in each position. It would eliminate one of the principal asymmetries that seems to concern the counsel and the Court.

MS. MAYNARD: Well, my understanding of that provision is that it serves two purposes.

JUSTICE KENNEDY: That it?

MS. MAYNARD: Serves two purposes. The first is that it makes clear -- in the back of our brief, we have the other necessary expenses from the IRM. And on -- near the back, page 25a, two of the categories of other necessary expenses are secured or legally perfected debts and unsecured debts.

So I think the -- the otherwise -- the "notwithstanding" sentence makes clear that Romanette ii should not capture those other unsecured debts and secured debts, that it's the very purpose of this whole calculation to figure out how much money you have to pay those things.

The second purpose the sentence serves is to make sure that there is no double-counting, because Romanette iii, the very next provision in the means test, allows the debtor to claim monthly payments for secured debts. Now, many car loans are probably secured debts, and in our view if you actually have a car loan -- now, remember again, he neither has a car loan, nor a car lease payment, nor any kind of ownership payment.

But if -- if one actually did have a car loan that was secured by the car, which I think is the vast majority of car loans, in our view the debtor expenses nothing for that under Romanette ii, and only the actual amount of that debt under Romanette iii.

JUSTICE GINSBURG: I thought the -- the general position was you get either the actual payment or the 471, of whichever is higher.

MS. MAYNARD: Whichever is less. I think that -- that's my understanding of how the local standards work, Your Honor. I think, then, as a practical matter, that really will end up only applying to car leases with respect to transportation ownership costs, because I think that the "notwithstanding" sentence removes secured car loans from Romanette ii and has them calculated under Romanette iii, where there is no comparable cap.

And the -- but -- but the point at issue in this case doesn't involve the interaction between Romanette ii and Romanette iii, because no matter how those two things interact, when the debtor has no payment whatsoever, he ought not to be able to claim any car ownership costs, because what we're trying to figure out is what amounts does he reasonably need for his maintenance and support? And this question is a very important question. . . .

Transcript, pp. 39-43.

The Government Weighs In

The Asst. Solicitor General did a good job of getting to the point before she faced another $1 hypothetical.

MS. SAHARSKY: Mr. Chief Justice, and may it please the Court:

The only question this Court needs to resolve in this case is whether the vehicle ownership expense is applicable to Petitioner. The answer is no. The ownership cost is for loan and lease payments, the cost to acquiring the vehicle, and he just doesn't have any payments of that type. To allow him to pretend that he does would create absurd results. He'd be able to shield approximately $28,000 from his unsecured creditors, and he'd be better off than lower income chapter 13 debtors. And we just don't think that that's a result that Congress intended. We don't think it -

CHIEF JUSTICE ROBERTS: If he paid a dollar, he would be able to shield $27,999, and you're comfortable with that result?

MS. SAHARSKY: Well, that goes to the question of whether the amount in the table is the amount to be used or a cap on actual expenses. In our view, it is -

CHIEF JUSTICE ROBERTS: And I understood your brief to say it was the amount -- you get the whole amount, not simply as a cap.

MS. SAHARSKY: That's right. Now, of course, we haven't seen -- the executive office for U.S. Trustees has not seen any $1 payments. It doesn't know of any such commercially available payments. It suspects the payments would be -

CHIEF JUSTICE ROBERTS: If the point of the $1, counsel, is to lead to the extreme hypothetical that would flesh out your position, what if it were $10,000 and the amount would give him $30,000? The trustees have probably seen loans like that.

MS. SAHARSKY: What I'm saying, Your Honor, is that there are many circumstances in which an expense amount is a standard amount, but you still need to make a threshold showing that it's applicable to you. And if I could give the Court one example: When an individual does his Federal income tax forms, you can take a deduction for your dependents, but you can't just take a deduction for any child you have. You have to take a deduction -- you can take a deduction if the person lives at home with you for more than 1 year and have you a certain amount of expenses to support them, and that is a standard deduction that you get on your tax forms. The IRS doesn't ask everyone to figure out their actual costs.

It is the case in real life that there are allowance amounts that are average amounts that are given to people once they meet the criteria. And that's what we are saying happens here. Now, that is, again, only a disagreement as to what you do with people who actually have vehicle ownership expenses.

Transcript, pp. 43-45.

Can You Read the Commentary?

In an interesting exchange, the attorney for the United States agrees with the Debtor's lawyer that the statutory text refers only to the standards.

JUSTICE SCALIA: Why aren't -- why isn't one of the criteria the -- the provision that says maximum allowances for housing and utilities and transportation, known as the local standards, vary by location, and unlike the national standards, the taxpayer is allowed the amount actually spent or the standard, whichever is less? Why doesn't that apply?

MS. SAHARSKY: Well, because, Your Honor, in that case it's the IRS commentary we are referring to that's on page 1a of the red brief appendix.

JUSTICE SCALIA: Right.

MS. SAHARSKY: And that -- what that's referring to is -- it says the amount actually spent or the standard. And that's distinguishing between the amount that's actually spent or the standard, which is the standard -

JUSTICE SCALIA: Right.

MS. SAHARSKY: -- amount in the table. Right. And of course, we look to what -- the text that Congress enacted in the Bankruptcy Code, and that says that the debtor's monthly expenses shall be the debtor's applicable monthly expense amounts specified under the national standards and local standards.

JUSTICE SCALIA: It's not applicable. It's not applicable if, in fact, you haven't spent that much. Just as you claim it's not applicable if you have no payment at all.

MS. SAHARSKY: I think that it is -- it would further Congress's purposes to say that you have to -- that you look to the actual costs that the debtor has. But we just don't think the text goes that far, because it says that if the expense amounts -- the category is applicable to the debtor, that then you use the expense amounts specified under the table. But -

JUSTICE KENNEDY: No, but the -- but the gravamen of Justice Scalia's question is: Why are you running away from 1a, which is what Respondent's counsel relied on? And if that were clearly relevant to this statute, it would seem to me to answer the question.

Are you saying we -- we don't look at this because it's just simply an interpretation; it's not a regulation? What is -- what is -- in your view, what effect do we give to this language that Justice Scalia quoted? Nothing at all?

MS. SAHARSKY: It would not be relevant in the bankruptcy context, in our view, and the reason is because the -- the statutory text refers to the standards. And in our view, you can look to the IRS commentary to see what the standards mean, what their scope is, as Justice Breyer was discussing with his apples hypothetical.

But this additional language is guidance to IRS agents in tax delinquency cases about how to collect taxes. As Petitioners -

JUSTICE KENNEDY: Suppose we -- suppose we think the word "applicable" is ambiguous and difficult to construe. Do we then look at this language at 1a, or do you say it's irrelevant in all instance -- in all respects?

MS. SAHARSKY: You -- Your Honor, you could look at this language, but we think that it reflects not the standards, but what -- how the IRS uses the standards in individual cases of tax delinquency. To the extent that the IRS is defining what the standards are, what the scope of the standards are -- for example, that ownership costs are loan and lease payments -- of course, we would think that you would look to that, but this additional guidance to IRS agents we don't think is what Congress meant when it said "expense amounts specified under the standards." But we do think that the text could be read the way you suggest.

Transcript, pp. 45-48.

A Strange Question

CHIEF JUSTICE ROBERTS: Ms. Saharsky, I should -- I should probably know this, but if you do have amounts that are excluded from the disposable income because of car ownership, in other words, you actually have, from -- in your point of view, expenses, do they have to go to the -- pay off the car loan or are they available for everybody? All the creditors?

MS. SAHARSKY: They're not available for the creditors. The idea behind this calculation is that there, of course, are secured debts that have priority, and then this calculation is used to figure out how much money is left to pay unsecured creditors. And the idea is that the debtor has certain expenses, that he needs to keep money for himself so he can continue with the everyday business of life. For example, the car ownership payment is designed to ensure that a vehicle can still use and have access to a car, and if someone has a loan or lease payment, they need to be able to continue making that payment in bankruptcy, but if they don't have any such payment, then they don't have this need for this additional fund because -

CHIEF JUSTICE ROBERTS: But can he decide - let's say he has more food expense than is allowed. Can he decide of the amount that would otherwise go for the car payment that he's going to pay some of that for the food expenses?

MS. SAHARSKY: Well, certainly the Bankruptcy Court doesn't scrutinize, you know, what happens to that regard. What it's just trying to do is figure out the disposable income that is available to pay unsecured creditors, that the debtor doesn't need.

And I should just note with respect to this question of whether there is an overall budget that the debtor is allowed, you know, that's certainly not the case in any of the other provisions that follow this applicable monthly standards and local standards. You have the actual other necessary expenses, actual continuation of taking care of chronically ill family members. And Petitioner himself acknowledges that he has to show that he has a car. So it's not the case that every debtor is just getting some set amount of money to do what they will with. Congress has referenced the standards. The standards break this out into certain expenses. It says just take the applicable ones. And we just don't think it makes sense to interpret "applicable" in that circumstance to -

Transcript, pp. 49-51.

Back to the Romanettes

JUSTICE KAGAN: Ms. Saharsky, could you explain to me the government's position on when a debtor with loan and lease payments gets to deduct them under Romanette ii? In other words, this goes back to Justice Kennedy's question, the notwithstanding clause and whether the notwithstanding clause effectively excludes all loan and lease payments from Romanette ii?

MS. SAHARSKY: It does not have that effect, Your Honor. What it does is to take out the actual debt payments that are part of the other necessary expenses -- these are on page 25a of the red brief - that counsel on our side mentioned. These are other necessary expenses that are actual debt payments, and the local and national standards are expense amounts. We don't think that Congress defined those to be debt payments. So the function of the payments for debts language, we agree with Respondent's counsel, would be twofold. First, it would excise the other necessary expenses that actually are debt payments, which makes complete sense. You know, one of them is an unsecured debt payment, and you wouldn't want to consider that one of your expenses because the whole point of the calculation is to figure out how much money you have left to pay unsecured debts. And then the other function that it serves is in Romanette iii because you were getting secured debt payments there to not double-count them in Romanette ii.

JUSTICE KAGAN: But, in other words, the loan and lease payments don't count as debt for purposes of the notwithstanding clause; they count as expense amounts?

MS. SAHARSKY: We say that those are expense amounts that are specified. They're not payments for debts. I should note, because Justice Kennedy asked this question, that this was not something that was relied upon by the courts below. I don't believe that there's any definitive court of appeals opinion that goes through in detail what that provision is designed to do. So I would urge this Court that it need not resolve it in this case and instead do what the court of appeals did, which is to say that, just looking at the plain text, the word "applicable" means not everybody can get these amounts in the national and local standards, and it needs to be someone who actually has those payment amounts. The whole point of this part of this statute is to figure out what money is available to pay unsecured creditors, and it's payments that need to be made for expenses that matter. It's not whether the individual debtor has a car.

I also note, just because it came up earlier and is a very important point, that to the extent that the Court only wants to look at the tables to figure out what are ownership costs, are they loan and lease payments, just looking at the title of the table, Ownership Costs, you need to have costs. Looking at the fact that there are two different ones -- there's ownership costs as opposed to operating costs -- makes clear that some of the things that Petitioner suggests might be ownership costs are, in fact, operating costs.

Transcript, pp. 51-53. The issue of the exclusion of debt payments from the allowable expenses under the local standards really seems to bother the justices. If ownership expense means loan and lease payments, but loan payments don't count, then the standard doesn't seem to cover much.

It Turns Out That They Are Really Only Arguing Over $100 Per Month

When it comes time for the Debtor's attorney to make his rebuttal, the Justices raise the most interesting question of the argument. Even though the means test said that the Debtor had disposable income of $210 per month, the Debtor's plan proposed to pay $500 per month. If the expense were not included in the means test, the Debtor would have to pay $600 per month. This means that a case went up to the Supreme Court over $100 per month. It also raises the question of why the Debtor would offer to pay more than he had to.

JUSTICE GINSBURG: Mr. Burke, would you explain one facet of this case to me? Given the deduction, the $471 deduction, disposable -- projected disposable income comes down to $210?

MR. BURKE: Correct.

JUSTICE GINSBURG: As opposed to -- it would be 600 some dollars if you didn't count the $471?

MR. BURKE: Correct.

JUSTICE GINSBURG: Even though the disposable income figure was $210, the debtor was willing -- the debtor proposed paying $500. Why did the debtor come up with a $500 figure when projected disposable income without the car ownership would be -if he gets the car ownership, would only be $210?

MR. BURKE: This is exactly why our view of the law works. The means test is a minimum amount. It's a bottom-line quick figure based on standard deductions. It was $200 based on our calculation if he's given his deductions based on age, location, et cetera.

We then go back to I and J, and J, which is on page 44 of the Joint Appendix, is his current expenses. And if we look at line 13A, there is no vehicle payment. He's not taking $471. He took his income and expense. The bottom line was 500. He knew he had to pay at least 200. He's willing to pay the 500. He's not getting a $471 deduction because there is no car payment on his Schedule J.

And if we look at the formula that way, the means test is a general form to give standard deductions, to give us a quick bottom line, and the debtor is either going to pay that amount or more based on his income and expense, and he would pay more if he really didn't have that expense. So if he didn't have a rent expense of $1,000 a month, it would show up on Schedule J that he didn't have 1,000, so his payment would go to $1,500 a month. That's the good faith that's involved in this case.

JUSTICE SCALIA: It would have to go to 1,500 a month, or he, out of the goodness of his heart, would decide to pay that amount?

MR. BURKE: He's going to have to pay an amount of at least $200.

JUSTICE SCALIA: Right.

MR. BURKE: It would be hard to confirm a case if he doesn't pay somewhere in that range.

JUSTICE SCALIA: Fine. So why -- why would we assume that he -- I don't know -- your client is an extraordinarily generous fellow. I don't think most people, when they go through bankruptcy, are going to cough up any more than they have to.

MR. BURKE: It's the only way for the form and the law to work. The means test is a bottom-line number. If you don't have one of those expenses, it shows up on Schedule J, and it gives you a number. If it's higher, we think you should probably pay it or in that range. If it's lower, Congress isn't saying you get away with it; it says you get out of chapter 13 if you're not going to pay this amount. So the formula is just to come up with a bottom line. Nobody is shielding anything. expenses. you - It's all black and white on his current If he doesn't have it -

JUSTICE ALITO: Do you think that the -- do

MR. BURKE: -- he's not getting it.

Transcript, pp. 54-56. Here, the Debtor's counsel has an interesting take. The Means Test provides the floor, but the Debtor must pay at least the amount of his actual disposable income as stated on Schedules I and J. Thus, the Debtor doesn't really get to deduct the non-existent car payment. By conceding that the Debtor must pay at least the Schedule I & J income, the practical effect of all the mental gymnastics that the justices and attorneys have been wrestling with is negligible.

Final Thoughts

The Justices seemed to grasp that Congress tried to pound a square peg into a round whole when it incorporated the IRS Collection Standards but also allowed actual deductions for secured debt. As the Chief Justice pointed out, you get absurd results under any interpretation. It's hard to read where the Court will come out on this issue. In the early stages of the argument, it looked like the liberal justices were lining up behind the creditor's position, while the conservative justices were taking the debtor's view. However, when it came time for the credit card company's lawyer to argue, the liberal justices seemed unconvinced of her arguments. I think it is a safe bet that Justice Scalia will side with the Debtor and vote to reverse the Ninth Circuit. However, it's anyone's guess where the other eight will come down.

Supreme Court Rules That "Projected Disposable Income" Is Forward Looking

In an 8-1 decision, the Supreme Court ruled today that “projected disposable income” under Chapter 13 may take into account “changes in the debtor’s income or expenses that are known or virtually certain at the time of confirmation.” Hamilton v. Lanning, 560 U.S. ___ (June 7, 2010). The opinion drew a spirited dissent from Justice Scalia, who argued that merely because Congress chose a poor measure for predicting future income did not give the court license to ignore the statutory text.

The Issue

Stephanie Kay Lanning’s trip to the Supreme Court began when she filed for chapter 13 in October 2006. During the six months prior to filing, Ms. Lanning had received a one-time buyout from her former employer. This inflated her "current monthly income" (an amount calculated by averaging her income for the six months prior to bankruptcy) $5,343.70, even though her actual income at the time of filing was only $1,922.00. If she was required to make plan payments based on the historical average, her payment would have been $756 per month, while her actual income would have required a payment of $144 per month.

This raised the issue of whether the Bankruptcy Court was required to use the historical but outdated income amount or the current amount in confirming a plan. The Bankruptcy Court, the Tenth Circuit BAP and the Tenth Circuit all agreed that the Debtor was not required to make payments based upon a one-time occurrence which was not going to recur. The Tenth Circuit found that the court should start with the presumption that the historical number was the correct amount but that this figure could be rebutted by evidence of a substantial change in the debtor’s circumstances.

“Words, Words, Words”—Hamlet, Act II, Scene 2.

The issue in the case arises from the use of the words “projected disposable income” in 11 U.S.C. Sec. 1325(b)(1)(B). In the face of an objection, a chapter 13 debtor must pay the lesser of the allowed unsecured claims or the debtor’s “projected disposable income” for a defined period of time. The term “projected disposable income” was already used in the statute prior to BAPCPA. It relied in turn upon a definition of “disposable income.” The definition of “disposable income” was changed by BAPCPA. However, neither version of the law defined “projected.”

Prior to BAPCPA, “disposable income” referred to the debtor’s income less amounts necessary for the maintenance or support of the debtor and the debtor’s dependents as well as business expenses. BAPCPA made two changes to this definition. First, it replaced the term “income” with the defined term “current monthly income.” The term “current monthly income” was defined as the average of the debtor’s income during the six months prior to bankruptcy. 11 U.S.C. Sec. 101(10A). Second, the expenses allowed to be deducted for maintenance or support of the debtor would be determined under the chapter 7 means test if the debtor’s “current monthly income” exceeded the median income.

Thus, the revised statute included a new formula for determining both income and expense as components of “disposable income” but did not expressly define “projected disposable income.”

Two lines of cases developed. The “mechanical approach” applied “projected disposable income” to mean “disposable income” multiplied by the number of months of the “applicable commitment period.” The “forward looking approach” started with “disposable income,” but allowed the court to make adjustments based upon changes in income or expenses which are known or virtually certain to occur.

The Majority Opinion

Eight Justices agreed that the “forward looking approach” was the best way to give meaning to the term “projected disposable income.” Justice Alito noted that when words are not defined, that they are given their usual meaning.

“When terms used in a statute are undefined, we give them their ordinary meaning.” (citation omitted) . Here, the term “projected” is not defined, and in ordinary usage future occurrences are not “projected” based on the assumption that the past will necessarily repeat itself. For example, projections concerning a company’s future sales or the future cash flow from a license take into account anticipated events that may change past trends. (citations omitted). On the night of an election, experts do not “project” the percentage of the votes that a candidate will receive by simply assuming that the candidate will get the same percentage as he or she won in the first few reporting precincts. And sports analysts do not project that a team’s winning percentage at the end of a new season will be the same as the team’s winning percentage last year or the team’s winning percentage at the end of the first month of competition. While a projection takes past events into account, adjustments are often made based on other factors that may affect the final outcome. (citation omitted).

Hamilton v. Lanning, slip op., pp. 6-7.

The majority also noted that it could not find any other federal statutes in which the word "projected" referred to a mechanical calculation and stated that its use of the word "projected" was consistent with the manner in which it had been used prior to BAPCPA.

The majority opinion also argued that the structure of Sec. 1325(b)(1)(B) was forward-looking. It refers to "income to be received" and dictates that the determination be made "as of the effective date of the plan." Additionally, projected disposable income "will be applied to make payments." The Court noted that "when, as of the effective date of a plan, the debtor lacks the means to do so, this language is rendered a hollow command." Slip Opinion, at 12.

The majority opinion is also noteworthy for its recognition of the practical realities of bankruptcy. In rejecting an argument that a debtor whose income was artificially inflated could simply wait six months to file, the court quoted from Keith Lundin's treatise on chapter 13 as follows:

“Potential Chapter 13 debtors typically find a lawyer’s office when they are one step from financial Armageddon: There is a foreclosure sale of the debtor’s home the next day; the debtor’s only car was mysteriously repossessed in the dark of last night; a garnishment has reduced the debtor’s take-home pay below the ordinary requirements of food and rent. Instantaneous relief is expected, if not necessary.” K. Lundin & W. Brown, Chapter 13 Bankruptcy §3.1[2] (4th ed. rev.2009), http: // www.ch13online.com / Subscriber / Chapter _13_ Bankruptcy_4th_Lundin_Brown.htm.

See also id. , §38.1 (“Debtor’s counsel often has little discretion when to file the Chapter 13 case”).

Slip Op., p. 15.

As a result, the Supreme Court concluded that a one-time aberration in income would not require a chapter 13 debtor to propose a plan based on projections of non-existent income. However, the forward-looking approach cuts both ways. The Supreme Court cited the Fifth Circuit's opinion in In re Nowlin, 576 F.3d 258 (5th Cir. 2009) with approval. In Nowlin, the Fifth Circuit held that a debtor would be required to increase his chapter 13 payments when a permissible expense would terminate during the period of a plan. Under the same logic, a debtor whose contract provided for guaranteed increases in pay could be required to devote these sums to the plan.

The Testament of the Textualist

Not content with the reasoning of his other eight colleagues, Justice Scalia wrote a 14 page dissent which argued that the court was not being faithful to the words used by Congress.

He argued that the word "projected" did not give the court latitude to "fiddle" with the formula provided by Congress, since the use of a formula provided the means for the projection.

This definition of “disposable income” applies to the use of that term in the longer phrase “projected disposable income” in §1325(b)(1)(B), since the definition says that it applies to subsection (b). Cf. §1129(a)(15)(B) (referring to “the projected disposable income of the debtor (as defined in section 1325(b)(2))”). The puzzle is what to make of the word “projected.”

In the Court’s view, this modifier makes all the difference. Projections, it explains, ordinarily account for later developments, not just past data. (citation omitted). Thus, the Court concludes, in determining “projected disposable income” a bankruptcy court may depart from §1325(b)(2)’s inflexible formula, at least in “exceptional cases,” to account for “significant changes” in the debtor’s circumstances, either actual or anticipated. (citation omitted).

That interpretation runs aground because it either renders superfluous text Congress included or requires adding text Congress did not. It would be pointless to define disposable income in such detail, based on data during a specific 6-month period, if a court were free to set the resulting figure aside whenever it appears to be a poor predictor. And since “disposable income” appears nowhere else in §1325(b), then unless §1325(b)(2)’s definition applies to “projected disposable income” in §1325(b)(1)(B), it does not apply at all.

The Court insists its interpretation does not render §1325(b)(2)’s incorporation of “current monthly income” a nullity: A bankruptcy court must still begin with that figure, but is simply free to fiddle with it if a “significant” change in the debtor’s circumstances is “known or virtually certain.” (citation omitted). That construction conveniently avoids superfluity, but only by utterly abandoning the text the Court purports to construe. . . . The Court, in short, can arrive at its compromise construction only by rewriting the statute.

Dissent, at 2-4.

Next, he argued that projections could be made solely on historical data if that is how Congress said to do it.

The only reasonable reading that avoids deleting words Congress enacted, or adding others it did not, is this: Setting aside expenses excludable under §1325(b)(2)(A) and (B), which are not at issue here, a court must calculate the debtor’s “projected disposable income” by multiplying his current monthly income by the number of months in the “applicable commitment period.” The word “projected” in this context, I agree, most sensibly refers to a calculation, prediction, or estimation of future events, see Brief for United States as Amicus Curiae 12–13 (collecting dictionary definitions); see also Webster’s New International Dictionary 1978 (2d ed. 1957). But one assuredly can calculate, predict, or estimate future figures based on the past. And here Congress has commanded that a specific historical figure shall be the basis for the projection.

The Court rejects this reading as unrealistic. A projection, the Court explains, may be based in part on past data, but “adjustments are often made based on other factors that may affect the final outcome.” (citation omitted). Past performance is no guarantee of future results. No gambler would bet the farm using “project[ions]” that are based only on a football team’s play before its star quarterback was injured. And no pundit would keep his post if he “projected” election results relying only on prior cycles, ignoring recent polls. So too, the Court appears to reason, it makes no sense to say a court “project[s]” a debtor’s “disposable income” when it considers only what he earned in a specific 6-month period in the past. (citation omitted).

Such analogies do not establish that carrying current monthly income forward to determine a debtor’s future ability to pay is not a “projection.” They show only that relying exclusively on past data for the projection may be a bad idea. One who is asked to predict future results, but is armed with no other information than prior performance, can still make a projection; it may simply be off the mark. Congress, of course, could have tried to prevent that possibility by prescribing, as it has done in other contexts, that a debtor’s projected disposable income be determined based on the “best available evidence,” (citation omitted) or “any … relevant information,” (citation omitted). But it included no such prescription here, and instead identified the data a court should consider. Perhaps Congress concluded that other information a bankruptcy court might consider is too uncertain or too easily manipulated. Or perhaps it thought the cost of considering such information outweighed the benefits. (citation omitted). In all events, neither the reasons for nor the wisdom of the projection method Congress chose has any bearing on what the statute means.

The Court contends that if Congress really meant courts to multiply a static figure by a set number of months, it would have used the word “multiplied,” as it has done elsewhere—indeed, elsewhere in the same subsection, (citation omitted)—instead of the word “projected.” (citation omitted). I do not dispute that, as a general matter, we should presume that Congress does not ordinarily use two words in the same context to denote the same thing. But if forced to choose between (A) assuming Congress enacted text that serves no purpose at all, (B) ascribing an unheard-of meaning to the word “projected” (loaded with made-to-order restrictions) simply to avoid undesirable results, or (C) assuming Congress employed synonyms to express a single idea, the last is obviously the least evil.

* * *

In short, a debtor’s projected disposable income consists of two parts: one (current monthly income) that is fixed once for all based on historical data, and another (the enumerated expenses) that at least arguably depends on estimations of the debtor’s future circumstances. The statute thus requires the court to predict the difference between two figures, each of which depends on the duration of the commitment period, and one of which also turns partly on facts besides historical data. In light of all this, it seems to me not at all unusual to describe this process as projection, not merely multiplication.

Dissent, at 4-7 (emphasis added).

He also responded to the majority's criticism of the mechanical approach.

The Court’s remaining arguments about the statute’s meaning are easily dispatched. A “mechanical” reading of projected disposable income, it contends, renders superfluous the phrase “to be received in the applicable commitment period” in §1325(b)(1)(B). (citation omitted). Not at all. That phrase defines the period for which a debtor’s disposable income must be calculated ( i.e. , the period over which the projection extends), and thus the amount the debtor must ultimately pay his unsecured creditors.

Similarly insubstantial is the Court’s claim regarding the requirement that the plan provide that the debtor’s projected disposable income “will be applied to make payments” toward unsecured creditors’ claims, §1325(b)(1)(B). The Court says this requirement makes no sense unless the debtor is actually able to pay an amount equal to his projected disposable income. (citation omitted). But it makes no sense only if one assumes that the debtor is entitled to confirmation in the first place; and that assumption is wrong. The requirement that the debtor pay at least his projected disposable income is a prerequisite to confirmation. The “will be applied” proviso does not require a debtor to pay what he cannot; it simply withholds Chapter 13 relief when he cannot pay.

Dissent, at 7 (emphasis added).

Justice Scalia also found that the ability to modify a chapter 13 plan provided an answer to the problem which concerned the majority.

In any event, the effects the Court fears are neither as inevitable nor as “senseless” as the Court portrays. The Court’s first concern is that if actual or anticipated changes in the debtor’s earnings are ignored, then a debtor whose income increases after the critical 6-month window will not be required to pay all he can afford. (citation omitted). But as Lanning points out, (citation omitted), Chapter 13 authorizes the Bankruptcy Court, at the request of unsecured creditors, to modify the plan “[a]t any time after confirmation” to “increase … the amount of payments” on a class of claims or “reduce the time for such payments.” (citation omitted). The Court offers no explanation of why modification would not be available in such instances, and sufficient to resolve the concern.

The Court also cringes at the prospect that a debtor whose income suddenly declines after the 6-month window or who, as in this case, receives a one-off windfall during that window, will be barred from Chapter 13 relief because he will be unable to devote his “disposable income” (which turns on his prior earnings) to paying his unsecured creditors going forward. (citation omitted). At least for debtors whose circumstances deteriorate after confirmation, however, the Code already provides an answer. Just as a creditor can request an upward modification in light of postconfirmation developments, so too can a debtor ask for a downward adjustment. (citation omitted).

Moreover, even apart from the availability of modification it requires little imagination to see why Congress might want to withhold relief from debtors whose situations have suddenly deteriorated (after or even toward the end of the 6-month window), or who in the midst of dire straits have been blessed (within the 6-month window) by an influx of unusually high income. Bankruptcy protection is not a birthright, and Congress could reasonably conclude that those who have just hit the skids do not yet need a reprieve from repaying their debts; perhaps they will recover. And perhaps the debtor who has received a one-time bonus will thereby be enabled to stay afloat. How long to wait before throwing the debtor a lifeline is inherently a policy choice. Congress confined the calculation of current monthly income to a 6-month period (ordinarily ending before the case is commenced), but it could have picked 2 or 12 months (or a different end date) instead. Whatever the wisdom of the window it chose, we should not assume it did not know what it was doing and accordingly refuse to give effect to its words.

Dissent, at 9-10.

Justice Scalia's modification argument may cut against his position. If a plan could be modified immediately after confirmation to reflect changed circumstances, why is it unreasonable to give effect to those circumstances at confirmation?

In conclusion, Justice Scalia noted the importance of following the language used by Congress even when that appears that Congress was mistaken.

Underlying the Court’s interpretation is an understandable urge: Sometimes the best reading of a text yields results that one thinks must be a mistake, and bending that reading just a little bit will allow all the pieces to fit together. But taking liberties with text in light of outcome makes sense only if we assume that we know better than Congress which outcomes are mistaken. And by refusing to hold that Congress meant what it said,(citation omitted), we deprive it of the ability to say what it means in the future. It may be that no interpretation of §1325(b)(1)(B) is entirely satisfying. But it is in the hard cases, even more than the easy ones, that we should faithfully apply our settled interpretive principles, and trust that Congress will correct the law if what it previously prescribed is wrong.

Dissent, at 13-14.

Final Thoughts

I have admittedly given more space to Justice Scalia's words than to those of the majority. While the majority's view is the law and provides the more workable solution for bankruptcy practitioners, Justice Scalia's words have a seductive quality. The majority wants the Bankruptcy Code to make sense. Justice Scalia is willing to be a minority of one for the proposition that when Congress passes laws that are foolish or just plain wrong, that the courts have an obligation to throw their words back at them and yield a foolish judgment. As an agile advocate, he did include multiple arguments for why his view of what Congress said is not foolish (particularly in sections that I did not quote). However, he is at his most eloquent when he argues that Congress should be allowed to, in the words of the Talking Heads, "Stop Making Sense."

The problem here is that Justice Scalia may well have the better argument for what Congress meant. However, the language they used didn't completely do the job. Congress intended to replace the court's discretion with an objective formula. In the case of Sec. 1325(b)(1)(B), Congress inserted the objective look-back provision in the definition of "disposable income" but not "projected disposable income." Additionally, taking away discretion on initial confirmation but leaving it in place for modification seems to be an invitation to reintroducing discretion in general.

Hamilton v. Lanning provides a practical solution which does not do obvious violence to the text, Justice Scalia notwithstanding. However, it is also a prime example of the imprecision with which BAPCPA was drafted.