In re Raymond L. ADAMS and Janet M. Adams, Debtors. Susan L. Rhiel, Trustee, Appellant, v. Raymond L. and Janet M. Adams, Appellees., United States Bankruptcy Appellate Panel of the Sixth Circuit., 302 B.R 535, No. 03-8011., December 10, 2003

In re Raymond L. ADAMS and Janet M. Adams, Debtors. Susan L. Rhiel, Trustee, Appellant, v. Raymond L. and Janet M. Adams, Appellees.

United States Bankruptcy Appellate Panel of the Sixth Circuit.

302 B.R 535

No. 03-8011.

December 10, 2003

Argued Aug. 6, 2003.

Decided and Filed Dec. 10, 2003.

Susan L. Rhiel, Rhiel & Associates Co., Columbus, OH, for Appellant.

Eleanor Beavers Haynes, Columbus, OH, Mark Ditullio, on brief, Columbus, OH, for Appellees.

Before BODOH, COOK, and LATTA, Bankruptcy Appellate Panel Judges.

OPINION

COOK, Bankruptcy Judge.

This case is before us on the bankruptcy Trustee's appeal from a ruling of the bank╜ruptcy court that the Debtors, Mr. and Mrs. Raymond Adams, were the beneficia╜ries of trusts with enforceable transfer restrictions such that their beneficial inter╜ests in those trusts were excluded from their bankruptcy estate under 11 U.S.C. ╖ 541(c)(2). Because we conclude that the Debtors failed to carry their burdens of proof that they were beneficiaries of trusts within the meaning of 11 U.S.C. ╖ 541(c)(2), we REVERSE the bankruptcy court's order and REMAND the case for further proceedings.

I. ISSUES ON APPEAL

The principal issue in this case is wheth╜er the bankruptcy court erred when it concluded that the Debtors' ╖ 403(b) annu╜ity plans constitute trusts within the mean╜ing of 11 U.S.C. ╖ 541(c)(2).

II. JURISDICTION AND SCOPE OF REVIEW

The panel has jurisdiction to decide this appeal under 28 U.S.C. ╖ 158(a)(1) because the United States District Court for the Southern District of Ohio has authorized appeals to the Bankruptcy Appellate Panel of the Sixth Circuit.

The bankruptcy court's determi╜nation that the assets of these pension plans were excluded from the bankruptcy estate by operation of ╖ 541(c)(2) is a con╜clusion of law which is reviewed de novo. Nicholson v. Isaacman (In re Isaacman), 26 F.3d 629, 631 (6th Cir.1994). A court's findings of fact are accepted by appellate courts unless they are clearly erroneous. Fed.R.Civ.P. 52; Fed. R. Bankr.P. 8013.

III. FACTS

The Debtors, Mr. and Mrs. Raymond Adams, each has an interest in a separate retirement plan, both of which are quali╜fied under 26 U.S.C. ╖ 403(b) as tax-shel╜tered annuity pension plans. Both plans contain anti-alienation clauses (transfer re╜strictions) that prevent the Debtors from reaching the assets of their pension funds until they are 59 1/2 years of age. There are certain hardship exceptions to this general rule, but none have so far applied. No creditors can reach the assets of the Debt╜ors' pension plans under the terms of the anti-alienation clauses.

The plans have similar structures. Mr. Adams's pension plan, established by his employer, the United Negro College Fund, provides that the employer will forward a certain percentage of his salary to one or more of the fund's sponsors, Teachers In╜surance and Annuity Association, College Retirement Equities Fund, or the Equitable Life Assurance Society of the United States. The sponsors are to establish sep╜arate "accumulation accounts" for each plan participant, accumulate the plan con╜tributions in those accounts, and afford the plan participant an opportunity to invest in various vehicles, such as stock funds, made available to him by the sponsors. Mr. Adams has sole authority to direct how his account shall be invested. Benefits may not be paid to him until he attains the age of 59 1/2 and separates from the service of his employer, dies, or becomes disabled. Finally, paragraph 10.5 of the plan incor╜porates by reference the terms of each "funding vehicle" provided by the sponsor and provides that they control in case they conflict with the terms of the plan. From a certificate issued by Equitable Life As╜surance Society which appears in the ap╜pendix, it appears that Mr. Adams has chosen Equi-Vest (an investment arm of Equitable) as his fund sponsor and has allocated his contributions among several stock mutual funds and an interest-bearing account.

Mrs. Adams's pension plan document is similar to her husband's, except that her employer is Children's Hospital, Inc., the accumulation accounts are called "elective deferral accounts," and the eligibility for benefits, including the time when they be╜come payable, is controlled by the fund sponsors. These sponsors are not named in the pension plan. Paragraph 11.5 of the plan provides that the "terms of the con╜tracts between the Fund Sponsors and the Employer and/or the Participants and any certificates issued to a Participant in ac╜cordance with the provisions of Section 5.1 are a part of the Plan as if fully set forth in the Plan document." The appendix does not contain any of the contracts be╜tween the plan administrators and the fund sponsors, and there is no information available in the record on that subject. The appendix does, however, contain part of a certificate issued by Aetna Life Insur╜ance and Annuity Co. confirming that Mrs. Adams is a participant in its group annuity contract. The certificate appears to be incomplete, and no details are given as to how Aetna holds contributions made under the plan.

IV. DISCUSSION

The bankruptcy court held that both of the pension plans in question were excluded from property of the estate by ╖ 541(c)(2), which reads: "A restriction on the transfer of a beneficial interest of the debtor in a trust that is enforceable under applicable nonbankruptcy law is enforceable in a case under this title." 11 U.S.C. ╖ 541(c)(2). The court stated in its memo╜randum that "the plans are 'ERISA-quali╜fied' as contemplated by the Supreme Court in Patterson v. Shumate, 504 U.S. 753, 112 S.Ct. 2242, 119 L.Ed.2d 519 (1992). As such, they are not property of the estate, and are not subject to adminis╜tration by the Trustee." (Emphasis add╜ed.) Thus, there is some indication that the court thought the only criterion for excluding the assets of a pension plan from the estate under ╖ 541(c)(2) was whether the plan in question was ERISA-qualified.

The Sixth Circuit, however, requires that there be a trust: "An inquiry under ╖ 541(c)(2) normally has three parts: First, does the debtor have a beneficial interest in a trust?" Taunt v. Gen. Ret. Sys. (1n re Wilcox), 233 F.3d 899, 904 (6th Cir.2000).

Thus, the Trustee argues that the bank╜ruptcy court glossed over the trust re╜quirement in ╖ 541(c)(2) and contends that the plain terms of the statute exclude from property of the estate only a debtor's ben╜eficial interest in a trust, not necessarily his interest in a pension plan, or ERISA-qualified pension plan, or anything other than a trust.

In a lengthy discussion of this subject in In re Barnes, 264 B.R. 415, 423 (Bankr. E.D.Mich.2001), Bankruptcy Judge Spec╜tor recognized that some courts appear to have adopted the proposition that

an employee benefit plan need not be a trust at all: So long as the plan has an enforceable transfer restriction and is designed to function in a manner "analo╜gous" to a spendthrift trust, the debtor's interest therein will be excluded from the bankruptcy estate pursuant to ╖ 541(c)(2).

Id . The court then disagreed with that view and insisted that proof of a trust was essential to exclusion under ╖ 541(c)(2).

This Court rejects that proposition. There is no statutory support for the notion that in determining whether a trust was created, employee benefit plans are subject to a less stringent standard than are other assets in which the debtor holds an interest. Since ══ ╖ 541(c)(2) makes no distinction along these lines, neither should the courts.

Id . at 428 (citation omitted). We agree with and adopt the views in Barnes regarding the trust requirement of ╖ 541(c)(2) and, following Wilcox , hold that only an interest in a trust can be the subject of an enforceable transfer restriction within the meaning of 11 U.S.C. ╖ 541(c)(2).

The bankruptcy court also briefly stated in its memorandum that "a review of both plans reveals that the funds, even though being invested in tax sheltered annuities, are being held in trust for the Debtors' retirement." Unfortunately, the court did not explain this conclusion or support it with any discussion of the terms of the plans, contracts, accounts, or annuities such as might have caused the court to view them as trusts. Neither did it offer any discussion of the legal elements of a trust or how the Debtors proved any of those elements. There is only the bare conclusion that some trusts exist.

The Debtors bear the burden of demonstrating that all the requirements of ╖ 541(c)(2) have been met before the prop╜erty in question can be effectively excluded from the estate. Id . at 420-21; Pineo v. Fulton (In re Fulton), 240 B.R. 854, 861 n. 4 (Bankr.W.D.Pa.1999). The Debtors, therefore, must show that the property in question is the subject of a trust of which they are beneficiaries. We think it is far from self-evident that the plans in this case constitute trusts, a critical finding for exclusion from the bankruptcy estate. Al╜though they were probably drafted by at╜torneys, there is no mention of a trust, much less the appointment of a trustee. There are no formal grants in trust. There is no direct manifestation of any intent to create a trust in anyone.

The term "trust" is a term of art and has a specific legal meaning. In Ohio, a trust is created by

"an explicit declaration of trust, or cir╜cumstances which show beyond reason╜able doubt that a trust was intended to be created, accompanied with an inten╜tion to create a trust, followed by an actual conveyance . . . of definite proper╜ty . . . vesting the legal title presently in a person capable of holding it, to hold as trustee for the benefit of a cestui que trust."

Ulmer v. Fulton, 129 Ohio St. 323, 195 N.E. 557, 564 (1935) (quoting 65 C.J. ╖ 21); accord Booth v. Vaughan (In re Booth), 260 B.R. 281, 290-91 (6th Cir. BAP 2001). The Restatement defines a trust in similar terms as

[a] fiduciary relationship with respect to property, arising from a manifestation of intention to create that relationship and subjecting the person who holds title to the property to duties to deal with it for the benefit of charity or for one or more persons, at least one of whom is not the sole trustee.

Restatement (Third) of Trusts ╖ 2 (2003) (emphasis added).

As we have mentioned, the bankruptcy court did not attempt to ex╜plain why the pension plans in question constituted trusts. When we examine these plans ourselves, we are left in con╜siderable doubt about whether any trusts are involved. We have more information about Mr. Adams's plan than Mrs. Adams's, and so we will take it up first. In addition to the plan document, which establishes the relationship between Mr. Adams and his employer vis-a-vis his pen╜sion, we have an Equi Vest certificate of participation from which we can derive some information about how the plan might work. The mechanism described in the certificate is more complex than the outright purchase of an annuity under nor╜mal circumstances.

The Equi-Vest certificate provides that the contributions made to the plan by Mr. Adams and his employer become the prop╜erty of Equitable Life Assurance Society of the United States. A "Contract is is╜sued in consideration of the payment to Equitable of the Contributions made under the Contract." Furthermore, according to the certificate, "[a]n annuity is purchased for a person enrolled under the Contract upon receipt by Equitable of an initial Contribution by the Employer." The an╜nuity contract is funded by contributions which are allocated among various invest╜ment vehicles such as mutual funds or money funds made available by Equitable, and the allocation is made solely at the direction of Mr. Adams. These mutual funds are held in a "Separate Account" apart from Equitable's general accounts. At his retirement date, Mr. Adams can select either an "annuity benefit" or a "cash value benefit." The annuity benefit includes any annuity offered by Equitable, including both fixed and variable annuities.

To all intents and purposes, then, Mr. Adams's pension plan provides for the pur╜chase of an annuity with funds forwarded by his employer to Equitable. The value of the benefit Mr. Adams eventually re╜ceives depends on the amounts he contrib╜utes to Equitable and the success of his investment decisions prior to his retire╜ment. If Mr. Adams's plan contributions are premium payments and he is merely an annuitant, it is difficult to view the plan as a trust. The purchase of an annuity ordinarily creates the relationship of debt╜or/creditor, not trustee/beneficiary, Hughes v. Sun Life Assur. Co., 159 F.2d 110, 113 (7th Cir.1946); In re Riley, 91 B.R. 389, 390-91 (Bankr.E.D.Va.1988), and "[a] debt is not a trust." Restatement (Second) of Trusts ╖ 12 (2003). Under these circumstances, we may well wonder whether the debtors have carried their burdens of showing the existence of trusts.

The debtors argue essentially that any ERISA-qualified plan must be a trust. Turning to the applicable statutes, howev╜er, we note that there is nothing in either ERISA or the Internal Revenue Code that mandates the conclusion that these plans involve trusts. Both pension plans are drawn specifically to meet the require╜ments of 26 U.S.C. ╖ 403(b), and both explicitly so state. Section 403 is headed, "Taxation of Employee Annuities" and provides in pertinent part as follows:

If an annuity contract is purchased . . . then contributions and other additions by such employer for such annuity con╜tract shall be excluded from the gross income of the employee for the taxable year .... The amount actually distribut╜ed to any distributee under such contract shall be taxable to the distributee (in the year in which so distributed) under section 72 (relating to annuities).

(Emphasis added.) Thus, employee bene╜fit plans involving annuity contract pur╜chases, as well as those involving trusts, may qualify for special tax treatment un╜der ERISA.

The Internal Revenue Code also permits employers to contribute salary deductions from employees to custodial accounts in regulated investment companies:

(7) Custodial accounts for regulated in╜vestment company stock.-

(A) Amounts paid treated as contribu╜tions.- For purposes of this title, amounts paid by an employer described in paragraph (1)(A) to a custodial ac╜count which satisfies the requirements of section 401(f)(2) shall be treated as amounts contributed by him for an an╜nuity contract for his employee if-

(i) the amounts are to be invested in regulated investment company stock to be held in that custodial account, and

(ii) under the custodial account no such amounts may be paid or made available to any distributee before the employee dies, attains age 59 1/2, has a severance from employment, becomes disabled (within the meaning of section 72(m)(7)), or in the case of contributions made pursuant to a salary reduction agreement (within the meaning of sec╜tion 3121(a)(1)(D)), encounters financial hardship.

(B) Account treated as plan. For purposes of this title, a custodial account which satisfies the requirements of section 401(f)(2) shall be treated as an or╜ganization described in section 401(a) solely for purposes of subchapter F and subtitle F with respect to amounts re╜ceived by it (and income from invest╜ment thereof).

(C) Regulated investment company.╜-For purposes of this paragraph, the term "regulated investment company" means a domestic corporation which is a regulated investment company within the meaning of section 851(a).

26 U.S.C. ╖ 403(b)(7) (emphasis added). The reference to ╖ 401(f)(2) is significant because the latter provides generally that certain custodial accounts and annuity con╜tracts are to be treated as qualified trusts, even though they are not trusts, but only for the purposes of Title 26, the Internal Revenue Code.

(f) Certain custodial accounts and con╜tracts.- For purposes of this title , a cus╜todial account, an annuity contract, or a contract (other than a life, health or accident, property, casualty, or liability insurance contract) issued by an insur╜ance company qualified to do business in a State shall be treated as a qualified trust under this section if-

(1) the custodial account or contract would, except for the fact that it is not a trust , constitute a qualified trust under this section, and

(2) in the case of a custodial account the assets thereof are held by a bank (as defined in section 408(n)) or anoth╜er person who demonstrates, to the satisfaction of the Secretary, that the manner in which he will hold the as╜sets will be consistent with the re╜quirements of this section.

For purposes of this title, in the case of a custodial account or contract treated as a qualified trust under this section by reason of this subsection, the person holding the assets of such account or holding such contract shall be treated as the trustee thereof.

26 U.S.C. ╖ 401(f)(emphasis added). Un╜der ╖ 401(a), a qualified trust is (a) a trust that features (b) employer/employee con╜tributions for the benefit of an employee and (c) an anti-alienation provision. For purposes of the Internal Revenue Code, therefore, ╖ 401(f) allows certain custodial accounts or annuities having the (b) and (c) features, but not being trusts, to be treat╜ed as qualified trusts. Again, that special treatment is expressly limited to the Inter╜nal Revenue Code and so does not apply at all to the Bankruptcy Code.

For its part, ERISA generally requires that all assets of an employee benefit plan be held in trust. Indeed, 29 U.S.C. ╖ 1103(a) explicitly provides: "Except as provided in subsection (b) of this section, all assets of an employee benefit plan shall be held in trust by one or more trustees." If a pension plan is subject to or governed by ERISA, it usually complies with ERISA's trust requirement and thus satis╜fies the trust requirement of ╖ 541(c)(2). However, ERISA specifically exempts ╖ 403(b) annuity plans from ERISA's trust requirement:

The requirements of subsection (a) of this section shall not apply ... to a contract established and maintained un╜der section 403(b) of Title 26 to the extent that assets of the contract are held in one or more custodial accounts pursuant to section 403(b)(7) of Title 26.

29 U.S.C. ╖ 1103(b)(5). Thus, ERISA it╜self does not require that the assets of ╖ 403(b) plans be held in a trust.

The reason for this exception to the trust requirement is illuminating. Since 1942, and long before the enactment of ERISA, there has been a tax statute, in one form or another, that allowed employ╜ees of certain charitable organizations to defer income under a tax-sheltered annuity arrangement. Revenue Act of 1942, ch. 619, ╖ 162, 56 stat. 798 (codified as amend╜ed in scattered sections of 26 U.S.C.). Section 403(b) of the Internal Revenue Code was added by Congress in 1958 in order to restrict the amount of compensation deferrable under such annuity ar╜rangements, since some charitable employ╜ers were "paying selected employees all, or almost all, of their compensation in the form of annuities." H.R.Rep. No. 775, 85th Cong., 1st Sess. 15, 16 (1957). Sec╜tion 403(b) continued the deferral, but pro╜vided a formula for limiting the amount deferred according to the employee's com╜pensation and length of service. No trust was required or employed as a part of these tax-sheltered annuity arrangements.

It stands to reason that when ERISA was first proposed as a comprehensive piece of legislation to govern pension plans in the United States, the insurance compa╜nies, having done a good business selling retirement annuities to charitable organi╜zations, wished to keep that business. Since insurance companies are in the busi╜ness of selling contracts, not acting as trustees, it was necessary for them to ob╜tain an exception from ERISA's general rule that plan assets were to be held in trusts. In effect, the previous practice of the insurance companies was grandfa╜thered in. Under the new ERISA, as Congress made clear,

A trust is not to be required in the case of plan assets which consist of insurance (including annuity) contracts or policies issued by an insurance company quali╜fied to do business in a State (or the District of Columbia). The same ex╜emption will apply to the new section 403(b) custodial account arrangement in╜volving investment in mutual funds, since these are treated as amounts con╜tributed for an annuity contract under the tax law. Although these contracts need not be held in trust, nevertheless, the person who holds the contract is to be a fiduciary and is to act in accordance with the fiduciary rules of the substitute [bill of the conference committee] with respect to these contracts. For exam╜ple, this person is to prudently take and keep exclusive control of the contracts, and is to use prudent care and skill to preserve this property.

To the extent that plan assets are held by an insurance company they need not be held in trust.

Subcommittee on Labor of the Senate Committee on Labor and Public Welfare, 93rd Cong.2d Sess., Report on Employee Retirement Income Security Act, Pub.L. No. 93-406 (Comm. Print 1974) (emphasis added). This statement shows that an em╜ployer, although he holds the annuity con╜tracts for safekeeping and is a fiduciary under ERISA, need not be a trustee. Furthermore, the insurance company in╜volved in the plan need not be a trustee under ERISA. If this is so, then this kind of tax-sheltered annuity plan can be car╜ried out without any trustee at all, as historically it was.

Indeed, many states forbid insurance companies from being, or holding them╜selves out to be, trustees with respect to their separate accounts. The New York statute applicable to Equitable, for in╜stance, states:

Amounts allocated by the insurer to separate accounts shall be owned by the insurer, the assets therein shall be the property of the insurer, and no insurer by reason of such accounts shall be or hold itself out to be a trustee.

N.Y. Ins. Law ╖ 4240(a)(12) (McKinney 2000). ¹

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^1. ═ The partial certificate covering Mrs. Adams indicates that Aetna's separate accounts are subject to the laws of Connecticut. These are virtually identical to New York's laws and specifically provide that "amounts allocated to a separate account in the exercise of the power granted by this section shall be owned by the company, and the company shall not be, nor hold itself out to be, a trustee with respect to such amounts." Conn. Gen.Stat.Ann. ╖ 38a-433(a) (West 2000).

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If there are serious questions about whether Equitable is a trustee under the plan, there are equally serious questions about whether the employer may be a trustee. Nowhere in the plan or the cer╜tificate is it called one. It may be a fidu╜ciary insofar as it is the custodian of the insurance contracts, as the Subcommittee on Labor observed, but, according to the Equitable's certificate, once the first pay╜ment is made on behalf of an employee, Equitable issues an annuity and all further dealings of any substance are between Eq╜uitable and the employee. In fact, the employer is little more than a conduit or forwarding agent acting on the employee's behalf to withhold and send off the annuity payments. Once the employer has for╜warded the payment, it has no control over the money or the accounts into which the payment is invested, and it has no control over how the benefits are ultimately paid out to the employee. This being the case, the plan may be viewed as a device operat╜ing primarily under principles of agency rather than those of trust. Even if there is a mixture of trust and agency principles involved, the agency principles may pre╜dominate:

A person may be both agent of and trustee for another. If he undertakes. to act on behalf of the other and subject to his control, he is an agent; but if he is vested with the title to property which he holds for his principal, he is also a trustee. In such a case, however, it is the agency relation that predominates, and the principles of agency, rather than, the principles of trust, are applica╜ble. This is the case, for example, where the title to bonds or shares of stock or other securities is vested in a person who undertakes to hold subject to the directions of the person who caused the property to be vested in him. He is an agent since he is acting subject to the control of another, even though he is also trustee since he is vested with the title to the property. Where an agent receives money for his principal, he ac╜quires the legal title to the money ac╜cording to the view that title to money passes with the possession of it; but he is nonetheless an agent, and the princi╜ples of agency are applicable.

Austin Wakeman Scott and William Franklin Fratcher, The Law of Trusts ╖ 8 ( 4th ed.1987) (emphasis added). It is thus quite possible that the employer is only the agent, not the trustee, of the employee. Since the federal statutory framework does not compel, or even imply, the exis╜tence of a trustee in plans funded by tax-sheltered annuities, and since such plans can easily be operated without the use of a trustee, as indeed it appears they usually were, it is difficult to see how Mr. Adams has carried his burden of proving that there is real trust involved in this case. The law, the plan documents, and histori╜cal practice all seem to lean the other way.

While we have doubts about the existence of a trust in Mr. Adams's plan, we are even more doubtful about Mrs. Adams's plan because we have even less information about its operation. The par╜tial Aetna certificate in evidence does not describe what kind of annuity she may have purchased or how her contributions are held or invested. We have only the plan document which does not mention trust or trusteeship and speaks in terms too general for us to determine exact rela╜tionships or whether any trust is involved. There are two possible bases for the bank╜ruptcy court's decision in this case. First, the court may have relied on a per-se rule that any ERISA-qualified plan constituted a trust for bankruptcy purposes as a mat╜ter of law. We reject such a rule for reasons we have pointed out above. Sec╜ond, the bankruptcy court may have based its ruling on a finding that the Debtors' plans actually involve real trusts. In that case, we are unable to see how such a finding might be justified given the rela╜tively complete lack of evidence of any trust anywhere. No trust or trustee is mentioned in either of the plans or the certificates issued by the insurance compa╜nies, there is no evidence that either Debt╜or intended the creation of a trust, the federal statutes that apply to this kind of pension plan exempt it from any trust requirement, and the state statutes that regulate insurers who participate in such plans specifically prohibit the insurers from being trustees. Under these circum╜stances, we must hold that both Debtors have failed to carry their burdens of proof under 11 U.S.C. ╖ 541(c)(2) in that they failed to show they were beneficiaries of trusts.

The dissent argues that ╖ 541(c) of the Bankruptcy Code and ╖ 1056(d)(1) of ERISA (requiring pension plans to con╜tain anti-alienation clauses) are in conflict and that ERISA should prevail. We dis╜agree and find no legal conflict between the statutes because each can be applied without interfering with the other. ERISA requires that most pension plans contain an anti-alienation clause, but it does not purport to describe the legal ef╜fects of such a clause under all circum╜stances. The Bankruptcy Code specifical╜ly provides that the debtor's interest in property becomes property of the estate "notwithstanding any provision in an agreement, transfer instrument, or appli╜cable nonbankruptcy law . . . that restricts or conditions transfer of such interest by the debtor ...." 11 U.S.C. ╖ 541(c)(1). A pension plan is "an agreement" and ERISA is "applicable nonbankruptcy law." Thus the Bankruptcy Code contains a pro╜vision that acts as a kind of enzyme within the medium of the Bankruptcy Code: it undoes all anti-alienation clauses except those appurtenant to trusts. 11 U.S.C. ╖ 541(c)(2). Simply because one statute undoes the effect of another in a special area does not mean the statutes are in conflict. We think there is no conflict between these statutes, and in any case the bankruptcy statute is the more specific of the two because it deals not just with anti-alienation clauses but with their ef╜fects in the specific situation of a bank╜ruptcy.

In order to find a conflict, then, the dissent seeks the higher plane of policy and argues that "important policy considerations" and "[t]he goal of ERISA" require us to expand the language of ╖ 541(c)(2) beyond trusts. Considering that Congress could easily have done this by adding a few words to ╖ 541(c)(2), which was enacted some four years after ERISA became law, we are hesitant to conclude that their absence is certainly an oversight. We are also reluctant to con╜clude that the supposed policy balance is so lopsided that we must, as a court, re╜write black letter law. First, as a court, we are not familiar with all the policy implications of a very complex legislative scheme involving pension and tax law. Second, we have been repeatedly warned that a "policy question, involving, as it does, many weighty and conflicting consid╜erations, must be resolved through the [legislative] process and not by judicial decision." United States v. Robinson, 361 U.S. 220, 229, 80 S.Ct. 282, 288, 4 L.Ed.2d 259 (1960). Thus, courts simply do not have the power to resolve pure policy questions. This is especially true when it comes to rewriting statutes with the inten╜tion of improving them.

[P]etitioner argues that prohibiting a district court from granting a motion for judgment of acquittal filed one day late will lead to needless appeals and habeas corpus proceedings, where it will be more difficult for defendants to obtain relief than in motions directed to the trial court. Assuming, arguendo, that these contentions are accurate, we can╜not permit them to alter our analysis, for we are not at liberty to ignore the mandate of Rule 29 in order to obtain "optimal" policy results. We are simi╜larly unmoved by petitioner's contention that the "rationale" behind Rule 29(c)'s time limit does not apply where the mo╜tion for judgment of acquittal is filed a mere eight days after the trial. The only evident "rationale" behind Rule 29(c)'s 7-day time limit is that a motion for judgment of acquittal filed eight days after trial is a motion filed one day later than justice and equity demand.

Carlisle v. United States, 517 U.S. 416, 430, 116 S.Ct. 1460, 1468, 134 L.Ed.2d 613 (1996) (citation omitted); accord Commis╜sioner v. Lundy, 516 U.S. 235, 252, 116 S.Ct. 647, 650, 133 L.Ed.2d 611 (1996) ("We are bound by the language of the statute as it is written . . . even if the rule [petitioner] advocates might 'accor[d] with good policy . . . .' "); Badaracco v . Commissioner, 464 U.S. 386, 398, 104 S.Ct. 756, 764, 78 L.Ed.2d 549 (1984) ("Courts are not authorized to rewrite a statute because they might deem its effects susceptible of improvement.").

The dissent would like us to amend ╖ 541(c)(2) so as to read: "A restriction on the transfer of a beneficial interest of the debtor in a trust or ERISA-qualified pen╜sion plan that is enforceable under applica╜ble non-bankruptcy law is enforceable in a case under this title." We believe that if there are to be any changes in the lan╜guage of ╖ 541(c)(2) such changes must be made by Congress, not by the courts.

V. CONCLUSION

For the foregoing reasons, we RE╜VERSE the bankruptcy court's order that is the subject of this appeal and REMAND the case for further proceedings. ²

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^2. ═ The bankruptcy court decided the ╖ 541(c)(2) issue in connection with overrul╜ing the Trustee's objection to the Debtors' claims of exemptions in the pension plans. The court no doubt thought that its ruling on the ╖ 541(c)(2) issue rendered moot all other issues relating to the Debtors' claims of ex╜emptions in the plans. However, because the Debtors' have failed to prove that their inter╜ests in their pension plans should be excluded from property of the estate under ╖ 541(c)(2), the bankruptcy court must now consider the remaining issues that relate to the Debtors' claims of exemptions in their pension plans, and the Trustee's objection thereto.

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LATTA, Bankruptcy Judge, dissenting.

I agree with the majority that the Debt╜ors have failed to prove that their pension plans constitute trusts. In fact, I would put the matter more strongly the Debtors' pension plans manifestly are not trusts. Because I do not believe, however, that the presence of an express trust is required to exclude an ERISA-qualified retirement plan from the assets of a bankruptcy es╜tate, I respectfully dissent from the opin╜ion of the majority.

With respect to statutory construction, the Sixth Circuit Court of Appeals has instructed:

"We read statutes and regulations with an eye to their straightforward and com╜monsense meanings." [Citation omit╜ted.] We ascertain the plain meaning of a statute by reviewing "the particular statutory language at issue, as well as the language and design of the statute as a whole." [Citation omitted.] "When we can discern an unambiguous and plain meaning from the language of a statute, our task is at an end." [Citation omitted.]

We may not, however, rely on the literal language of the statute where such reli╜ance would lead to absurd results or an interpretation which is inconsistent with the intent of Congress. [Citations omit╜ted.] Every word in the statute is pre╜sumed to have meaning, and we must give effect to all the words to avoid an interpretation which would render words superfluous or redundant.

Walker v. Bain, 257 F.3d 660, 666-67 (6th Cir.2001). The majority's reading is incon╜sistent with the clear intent of Congress that ERISA-qualified pension plans not be subject to creditor claims.

Outside the bankruptcy law, 1 find no functional distinction between the protec╜tions afforded to beneficiaries of ERISA-qualified pension plans in which assets are held in trust and those in which assets are used to purchase annuity contracts. Out╜side of bankruptcy, no creditor of the Adams would be able to reach the debtors' beneficial interests in their pension plans to satisfy claims, and this is true not be╜cause these interests are exempt from exe╜cution pursuant to state law, but because they are exempt from execution pursuant to federal law. See Guidry v. Sheet Metal Workers Nat. Pension Fund, 493 U.S. 365, 110 S.Ct. 680, 107 L.Ed.2d 782 (1990)(permitting no equitable exception to ERISA's anti-alienation provision). The filing of a bankruptcy case should not change this result.

In Patterson v. Shumate, the Supreme Court held that "the antialienation provi╜sion required for ERISA qualification . . . constitutes an enforceable transfer restric╜tion for purposes of ╖ 541(c)(2)'s exclusion of property from the bankruptcy estate." 504 U.S. at 759, 112 S.Ct. 2242. Earlier in that opinion, the Court pointed out that "[t]he natural reading of the provision [╖ 541(c)(2)] entitles a debtor to exclude from property of the estate any interest in a plan or trust that contains a transfer restriction enforceable under any relevant nonbankruptcy law." Id . at 758, 112 S.Ct. 2242. (emphasis added). While it is true that the specific issue before this Panel was not before the Court in Shumate, and thus that the reference to "the plan" may be merely dicta, I think that the reference actually illumines the Court's understand╜ing of the intent of Congress expressed both in ERISA and the Bankruptcy Code. The Court, recalling its previous refusal in Guidry to recognize any exceptions to ERISA's anti-alienation provisions outside the bankruptcy context, asserted that its holding gave "full and appropriate effect to ERISA's goal of protecting pension bene╜fits," and that it furthered the important policy underlying ERISA of uniform treatment of pension benefits. Id . at 764-65, 112 S.Ct. 2242. Each of these consider╜ations applies with respect to plans that are not required to hold certain assets in trust.

The majority has advanced no policy considerations that support their more re╜strictive reading of section 541(c)(2). In╜stead their conclusion rests solely upon the literal requirement that a debtor's benefi╜cial interest be held "in a trust." This emphasis on the asserted plain meaning of one section of the Bankruptcy Code fails to give proper deference to the unqualified prohibition on alienation found in ERISA. "Where there is no clear intention other╜wise, a specific statute will not be con╜trolled or nullified by a general one." Morton v. Mancari, 417 U.S. 535, 550-51, 94 S.Ct. 2474, 2482-83, 41 L.Ed.2d 290 (1974) quoted in Guidry , 493 U.S. at 375, 110 S.Ct. 680. It is not section 541(c)(2) that excludes a debtor's beneficial interest in an ERISA-qualified plan from the bank╜ruptcy estate, but rather the anti-alien╜ation provision itself which excludes it.

The prior decision of the Sixth Circuit in Wilcox does not alter this conclusion. In that case, the court asserted that

An inquiry under ╖ 541(c)(2) normally has three parts: First, does the debtor have a beneficial interest in a trust? Second, is there a restriction on the transfer of that interest? Third, is the restriction enforceable under nonbank╜ruptcy law?

Taunt v. General Retirement System of the City of Detroit (In re Wilcox), 233 F.3d 899, 904 (6th Cir.2000). In that case, how╜ever, it. was undisputed that the debtor's interest in his retirement plan was a bene╜ficial interest in a trust. Thus there was no specific discussion of the trust require╜ment, and certainly no statement that it included only "express trusts." More im╜portantly, the retirement plan under con╜sideration in Wilcox was not an ERISA-qualified plan, and thus the court was not called upon to consider the important poli╜cy considerations presented in this case where a federal statute restricts transfer of the Debtor's interest.

The majority relies heavily upon the de╜cision of the bankruptcy court in Barnes to support its conclusion that only an interest in a trust can be the subject of an enforce╜able transfer restriction within the mean╜ing of 11 U.S.C ╖ 541(e)(2). See In re Barnes, 264 B.R. 415 (Bankr.E.D.Mich. 2001). Significantly, while that decision requires the presence of a "trust" before a beneficial interest is excluded from a bank╜ruptcy estate, the contract found to be a trust is virtually indistinguishable from the contracts in the present case. Rather than following the three-step analysis an╜nounced in Wilcox , the court focused solely upon the " sine qua non " of a trust: the division of legal title from equitable inter╜est. See Barnes, 264 B.R. at 432. The court concluded that a variable annuity contract may be a trust for purposes of ╖ 541(c)(2). I find this result disingenu╜ous, and much prefer a straightforward holding that ╖ 541(c)(2) does not require the existence of an express trust to ex╜clude an ERISA-qualified plan from a bankruptcy estate.

It is important to emphasize that Shu╜mate did not exclude a debtor's interest in an ERISA-qualified pension plan from the bankruptcy estate under ╖ 541(c)(2) be╜cause that interest looks something like an interest in a spendthrift trust. ERISA-qualified pension plans do not look any╜thing like spendthrift trusts. They may be self-settled and they permit the voluntary invasion of corpus under certain specified conditions. The rationale advanced for ex╜cluding spendthrift trusts from the estate, that the filing of a bankruptcy case should not be cause for frustrating the expecta╜tions of the settlor of the trust, is not present with respect to ERISA-qualified pension plans. See H.Rep. No. 95-595, 95th Cong., 1st Sess. 176 (1977), U.S.Code & Admin.News 1978 pp. 5963, 6136. Rath╜er, completely different policy consider╜ations are at work in the case of ERISA-qualified pension plans. The goal of ERISA is to protect and preserve pension benefits for pensioners and their depen╜dents.

In announcing its decision in Guidry, the Court emphasized this policy:

Section 206(d) [29 U.S.C. ╖ 1056] re╜flects a considered congressional policy choice, a decision to safeguard a stream of income for pensioners (and their de╜pendents, who may be, and perhaps usu╜ally are blameless), even if that decision prevents others from securing relief for the wrongs done them.

Guidry, 493 U.S. at 365, 110 S.Ct. 680. Likewise in Shumate, the Court character╜ized its holding as giving "full and appro╜priate effect to ERISA's goal of protecting pension benefits." Shumate, 504 U.S. at 764, 112 S.Ct. 2242. Further, the court indicated that its decision would ensure that "the treatment of pension benefits will not vary based upon the beneficiary's bankruptcy status." Id .

The narrow reading of ╖ 541(c)(2) ad╜vanced by the majority of the Panel nulli╜fies the anti-alienation provision of ERISA for non-trust, qualified pension plans. The majority advances no policy argument in favor of this reading. Were we called upon simply to construe ╖ 541 (c)(2), with╜out the benefit of the Supreme Court's opinions in Guidry and Shumate, then a narrow, "plain-meaning" reading would be appropriate, but I believe that we must go beyond ╖ 541 (c)(2) and include within our discussion the plain meaning of ERISA's anti-alienation requirement. When this is done, it is clear that ERISA-qualified pen╜sion plans, whether held in trust or not held in trust, are excluded from the bank╜ruptcy estate.

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