See, e.g., In re Connor, 27 F.3d 365, 366 (9th Cir. 1994); Marlin, supra, at *1; In re Wessel, 161 B.R. 155, 159 (Bankr.D.S.C. 1993); and In re Nevada Environmental Landfill, 81 B.R. 55, 56 (Bankr.D.Nev. 1987). However, there is also case law holding that a federal tax lien does not attach to property acquired post-petition.
For the reasons that follow, the court finds that such benefits do not constitute property of the participant and will grant Patrick Kelley's motion for summary judgment. Although several courts have grappled with the issue of whether a tax lien against the participant attaches to future pension benefits owed to the participant, see Shanbaum v. United States, 32 F.3d 180 (5th Cir. 1994): In re Connor, 27 F.3d 365 (9th Cir. 1994): Travelers Ins. Co. v. Ratterman. No. C-1-94-466, 1996 WL 149332 (S.D. Ohio Jan. 12, 1996):Toledo Plumbers Pipefitters Ret. Plan Trust v. United States. No. 3:80-CV-7513, 1991 WL 172932 (N.D. Ohio June 21, 1991): In re Fuller, 204 B.R. 894 (Bankr. W.D. Pa. 1997): In re Jacobs, 147 B.R. 106 (Bankr. W.D. Pa. 1992), the parties have not cited and the court has been unable to find any case addressing whether a tax lien against the participant attaches to benefits payable to the beneficiary.I. Statement of Facts
00 See Transcript of Proceedings, May 16, 2000, E.R. Ex. 15, at Bates Stamp No. 150. The court relied on In re Connor [94-2 USTC ¶ 50,296], 27 F.3d 365 (9th Cir.1994). See id. at Bates Stamp No. 150.
While the reach of a § 6321 lien is very broad, it does not apply to property acquired after bankruptcy. In re Connor, 27 F.3d 365, 366 (9th Cir. 1994); see e.g., In re Braund, 289 F. Supp. 604 (C.D.Cal. 1968), aff'd sub nom, United States v. McGugin, 423 F.2d 718 (9th Cir.), cert. denied, 400 U.S. 823, 91 S.Ct. 44, 27 L.Ed.2d 51 (1970).
As the Supreme Court explained in Johnson v. Home State Bank, 501 U.S. 78, 84 (1991), a discharge of personal liability in bankruptcy “extinguishes only one mode of enforcing a claim—namely, an action against the debtor in personam—while leaving intact another—namely, an action against the debtor in rem.” See Connor v. United States, 27 F.3d 365, 366 (9th Cir.1994); Iannone v. Commissioner, 122 T.C. 287, 292–293 (2004); Woods v. Commissioner, T.C. Memo.2006–38. IV. Analysis
Although the bankruptcy court discharged her personal tax liability, the preexisting liens on her IRA remain enforceable post-discharge. Connor v. United States (In re Connor), 27 F.3d 365, 366 (9th Cir. 1994). Therefore, the Tax Court correctly concluded that the Commissioner could proceed in rem against Miles' IRA to the extent of $142, 545.90 — the amount of the pre-petition funds in the IRA.
Repeatedly, courts have been willing to attach liens to post-discharge benefits despite the "fresh start" policy of the bankruptcy scheme. See, e.g., Connor v. United States (In re Connor), 27 F.3d 365 (9th Cir. 1994); In re Wesche, 193 B.R. 76 (Bankr. M.D. Fla. 1996). The IRS therefore has a valid tax lien against Orr's interest in the Trust if that lien attached before Orr's personal liabilities were extinguished in bankruptcy.
Also, notably, in Wisconsin (Dept. of Revenue) v. Bar Coat Blacktop, Inc., 640 F. Supp. 407, 412 (W.D.Wis. 1986), a case involving Wisconsin law as to the interest of a taxpayer in a contract, the fact that the taxpayer's right to proceeds of the contract were dependent on its own later performance did not alter the fact that at the time the contract was accepted, the taxpayer acquired a property right for purposes of a federal tax lien. See also Connor v. United States (In re Connor), 27 F.3d 365 (9th Cir. 1994) (debtor's statutory right to receive monthly payments from state after retirement as state supreme court justice was "property" to which federal tax lien attached pre-petition); United States v. Rye, 550 F.2d 682 (1st Cir. 1977) (federal tax lien attached to taxpayer's right to receive alimony); Roberts v. United States/IRS (In re Roberts), 219 B.R. 573 (Bankr.D.Or. 1997) (debtor's Social Security disability payments subject to IRS lien); Morris v. United States (In re Morris), 73 A.F.T.R.2d 94-862, 1993 WL 525657 (Bankr.W.D.Tenn. 1993) (same); Wessel, 161 B.R. at 159-60 (federal tax lien attached to post-petition annuity payments because contractual right to receive those payments arose pre-petition).
In all the cases cited by the Comers, the post-petition liens attached to property that was either included in the bankruptcy estate or was acquired after the bankruptcy petition was filed. In re Fuller, 134 B.R. 945, 948 (9th Cir. BAP 1992); In re Connor, 27 F.3d 365, 366-67 (9th Cir. 1994); In re Leavell, 124 B.R. 535, 536-37 (Bankr.S.D.Ill. 1991). Though the Comers possessed the underlying property at the time they filed bankruptcy, it was not listed on the bankruptcy schedules, and it did not pass through the bankruptcy estate.
As the Supreme Court explained in Johnson v. Home State Bank, 501 U.S. 78, 84 (1991), a discharge of personal liability in bankruptcy "extinguishes only one mode of enforcing a claim--namely, an action against the debtor in personam--while leaving intact another--namely, an action against the debtor in rem." See Connor v. United States (In re Connor), 27 F.3d 365, 366 (9th Cir. 1994); Iannone v. Commissioner, 122 T.C. 287, 292-293 (2004); see also Bussell v. Commissioner, 130 T.C. 222, 235 (2008). Respondent filed a Federal tax lien for the taxable period ending March 31, 2000, before petitioner's bankruptcy petition was filed.