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    MCINTYRE v USA, 9817192

    U.S. 9th Circuit Court of Appeals

    MCINTYRE v USA
    9817192

    In re JERRY W. MCINTYRE and
    WALTROUT MCINTYRE,
    Debtors.
    No. 98-17192
    WALTROUT MCINTYRE,                                    D.C. No.
    CV-98-01084-SI
    Plaintiff-Appellant,
    OPINION
    v.
    
    UNITED STATES OF AMERICA,
    Defendant-Appellee.
    
    
    Appeal from the United States District Court
    for the Northern District of California
    Susan Illston, District Judge, Presiding
    
    Submitted March 17, 2000*
    San Francisco, California
    
    Filed July 13, 2000
    
    Before: Diarmuid F. O'Scannlain, Edward Leavy, and
    Pamela Ann Rymer, Circuit Judges.
    
    Opinion by Judge O'Scannlain
    
    SUMMARY 
     
    The summary, which does not constitute a part of the opinion of the court, 
    is copyrighted C 2000 by West Group. 
    _________________________________________________________________
    
    Tax/Tax Liens
    
    The court of appeals reversed a judgment of the district
    court. The court held that the Internal Revenue Service may
    levy ERISA-regulated pension benefits to satisfy a husband's
    tax debt.
    
    Waltrout McIntyre's husband and codebtor, Jerry McIntyre,
    owed almost $300,000 in overdue federal income taxes. The
    Internal Revenue Service (IRS) levied Jerry's pension plan,
    the California Field Iron Worker Pension Trust Fund, which
    was governed by the Employee Retirement Income Security
    Act of 1974 (ERISA). The McIntyres filed a joint bankruptcy
    petition under Chapter 13. Waltrout initiated within the bank-
    ruptcy proceedings an adversary proceeding against the
    United States, claiming the IRS's levy of Jerry's pension ben-
    efits was wrongful under California community property law.
    The bankruptcy court granted the IRS's motion for summary
    judgment.
    
    Waltrout appealed. She argued that the IRS lacked author-
    ity to levy her community interest in the pension benefits. She
    also argued that ERISA preempted California law to the
    extent it gave her husband's creditors any recourse against her
    share of his pension benefits, and that ERISA's anti-alienation
    provision prevented the IRS from levying on the benefits
    from any ERISA-governed pension plan.
    
    [1] The IRS may levy on a delinquent taxpayer's property
    for the enforcement of his or her federal tax obligations. State
    law controls in determining the nature of the legal interest
    which the taxpayer has in property.
    
    [2] California community property law gives husband and
    wife present, existing, and equal interests in community prop-
    erty during the marriage relationship.
    
    [3] California community property law refers to equal inter-
    ests in the whole of the community property rather than in
    terms of exclusive interests in only half of the community
    property. Further, by statute in California, the community
    estate is liable for a debt incurred by either spouse before or
    during marriage, regardless of which spouse has the manage-
    ment and control of the property and regardless of whether
    one or both spouses are parties to the debt or to a judgment
    for the debt. By granting creditors recourse against the whole
    community estate on debts of only one spouse, California law
    implicitly establishes that spouse's interest in the whole of the
    community property, at least to a degree sufficient for the IRS
    to impose tax liens under the Internal Revenue Code.
    
    [4] ERISA's anti-alienation provision requires that benefits
    provided under any ERISA-governed pension plan may not be
    assigned or alienated. ERISA's anti-alienation provision does
    not preempt the operation of California law insofar as it vests
    in the husband a continuing property interest in his own pen-
    sion benefits.
    
    [5] The Internal Revenue Code expressly indicates that no
    other federal law shall exempt property from the IRS's
    authority to levy a delinquent taxpayer's property. Moreover,
    ERISA itself has a savings clause, which prohibits construc-
    tion of the anti-alienation provision to alter, amend, modify,
    invalidate, impair, or supersede any law of the United States.
    The IRS's authority to proceed against a delinquent taxpay-
    er's interest in benefits from an ERISA-governed plan is not
    constrained by ERISA's anti-alienation provision.
    
    _________________________________________________________________
    
    COUNSEL
    
    Waltrout McIntyre, Stockton, California, in pro se, for the
    plaintiff-appellant.
    
    Loretta C. Argrett, William S. Estabrook, and Janet A. Brad-
    ley, United States Department of Justice, Washington, D.C.,
    for the defendant-appellee.
    
    _________________________________________________________________
    
    OPINION
    
    O'SCANNLAIN, Circuit Judge:
    
    We must decide whether the Internal Revenue Service may
    levy upon ERISA-regulated pension benefits to satisfy a hus-
    band's tax debt against the claim that the wife has a vested
    interest in half of those benefits under community property
    laws.
    
    I
    
    Waltrout McIntyre's husband and co-debtor, Jerry McIn-
    tyre, owed almost $300,000 in overdue federal income taxes
    for the years 1983-1995. In 1996, the Internal Revenue Ser-
    vice ("IRS") served a Notice of Federal Tax Levy upon
    Jerry's pension plan, the California Field Iron Worker Pen-
    sion Trust Fund, which is governed by the Employee Retire-
    ment Income Security Act of 1974 ("ERISA"), 29 U.S.C.
    SS 1001 et seq. Pursuant to the IRS levy, the pension plan
    began paying Jerry's pension benefits directly to the IRS in
    August 1996.
    
    In May 1997, the McIntyres filed a joint bankruptcy peti-
    tion under Chapter 13 of the Bankruptcy Code, 11 U.S.C.
    S 1301 et seq. In June 1997, Mrs. McIntyre initiated within
    the bankruptcy proceedings an adversary proceeding against
    the United States under 26 U.S.C. S 7426, claiming that the
    IRS's levy of Jerry's pension benefits was wrongful insofar as
    it seized her one-half interest in those benefits (which she pur-
    ported to hold under California's community property
    regime).
    
    The bankruptcy court granted the IRS's motion for sum-
    mary judgment, rejecting her contentions both that the IRS
    lacked authority to levy her interest in the pension benefits in
    satisfaction of her husband's tax debt and that ERISA pre-
    cluded the use of those benefits to discharge a federal tax lia-
    bility.
    
    II
    
    "We review the bankruptcy court's . . . conclusions of law
    de novo." Levin v. Maya Constr. (In re Maya Constr. Co.), 78
    F.3d 1395, 1398 (9th Cir. 1996). On appeal from the district
    court, "we independently review the bankruptcy court's deci-
    sion and do not give deference to the district court's determi-
    nations." Robertson v. Peters (In re Weisman), 5 F.3d 417,
    419 (9th Cir. 1993).
    
    A
    
    [1] There is no dispute that the IRS may levy on a delin-
    quent taxpayer's property for the enforcement of his federal
    tax obligations. See, e.g., United States v. National Bank of
    Commerce, 472 U.S. 713, 719  (1985). Broad authority to do
    so is granted by statute:
    
           If any person liable to pay any tax neglects or refuses
           to pay the same within 10 days after notice and
           demand, it shall be lawful for the Secretary to collect
           such tax . . . by levy upon all property and rights to
           property (except such property as is exempt under
           section 6334) belonging to such person.
    
    26 U.S.C. S 6331(a).1 Nonetheless, Mrs. McIntyre maintains
    (and the United States does not contest) that this provision
    authorizes the IRS to levy on property only insofar as the
    interest of the delinquent taxpayer extends and no further. It
    is well established that "state law controls in determining the
    nature of the legal interest which the taxpayer ha[s] in proper-
    ty." Morgan v. Commissioner, 308 U.S. 78, 82  (1940).
    
    [2] Mrs. McIntyre objects to the IRS's levy of the whole of
    her husband's pension benefits because, under California law,
    the interest of her husband (the delinquent taxpayer) in those
    benefits extends only to half of their face value. This is so, she
    argues, because the pension benefits are subject to Califor-
    nia's community property regime, which gives husband and
    wife "present, existing, and equal interests" in community
    property "during continuance of the marriage relation." Cal.
    Fam. Code S 751 (West 2000).2 Mrs. McIntyre contends that,
    under S 751, she has an "exclusive" half-interest in her hus-
    band's pension benefits, that her husband's own interest in
    those benefits thus extends only to half of their value, and that
    the other half (her half) is therefore beyond the IRS's levy
    power pursuant to 26 U.S.C. S 6331.
    
    B
    
    [3] There is no authority for Mrs. McIntyre's characteriza-
    tion of her property interest in her husband's pension benefits
    as "exclusive" of any that he may retain. As an initial matter,
    Family Code S 751 does not speak in terms of any "exclu-
    sive" divisions of community property: That provision refers
    to "equal interests" in the whole of the community property
    rather than in terms of "exclusive" interests in only half of the
    community property. Family Code S 910 further undermines
    Mrs. McIntyre's characterization. That section establishes
    that:
    
           the community estate is liable for a debt incurred by
           either spouse before or during marriage, regardless
           of which spouse has the management and control of
           the property and regardless of whether one or both
           spouses are parties to the debt or to a judgment for
           the debt.
    
    Cal. Fam. Code S 910(a) (emphases added). We have held
    before that, by granting creditors recourse against the whole
    community estate on debts of only one spouse, California law
    "implicitly" establishes that spouse's "interest" in the whole
    of the community property, at least to a degree sufficient for
    the IRS to impose tax liens under the Internal Revenue Code.
    See Babb v. Schmidt, 496 F.2d 957, 960 (9th Cir. 1974).
    
    As both the bankruptcy court and the district court indi-
    cated, our decision in Babb must foreclose Mrs. McIntyre's
    claim, at least to the extent that she bases it on California's
    community property regime. Like her, the plaintiff in Babb
    was a wife who brought suit for wrongful levy under 26
    U.S.C. S 7426 because the IRS had sought recourse against
    community property for satisfaction of tax debts owed by the
    husband alone. See id. at 958. The wife argued that, because
    California law gave her a vested interest in half of the moneys
    in the couple's bank accounts, "her husband [could] not be
    said to have `property or rights to property' " in that half, and
    the IRS thus could not attach it. Id. We rejected the wife's
    argument. We held that California law has "implicitly given
    the husband rights in [the wife's share] sufficient to meet the
    requirements" for tax liens against the property of delinquent
    taxpayers. Id.
    
    The plaintiff in Babb contended, just as Mrs. McIntyre does
    here, that California's provision of recourse for one spouse's
    creditors against the other spouse's share of the community
    property is merely a rule regulating creditors' rights and does
    not define the first spouse's "rights to property " for purposes
    of federal tax law. See id. at 959. We dismissed this conten-
    tion, however, and our reasoning plainly disposes of Mrs.
    McIntyre's further argument that the scope of the federal
    authority to attach a wife's property for the satisfaction of a
    husband's tax debt should be uniform across states. See id. at
    958-59 (distinguishing contrary holdings from cases in Wash-
    ington and Arizona by noting that those states defined the
    husband's property interests differently by "deny[ing] pre-
    marital creditors of the husband access to the wife's share of
    the community").
    
    1
    
    Mrs. McIntyre's efforts to distinguish Babb are unavailing.
    She first asserts that Babb turned on the extent of a federal tax
    lien against a wife's share under 26 U.S.C. S 6321 rather than
    the IRS's authority to levy thereon pursuant to 26 U.S.C.
    S 6331. This observation is irrelevant, for the provisions for
    the federal tax lien and the IRS's levy power are both explic-
    itly limited to "all property and rights to property . . . belong-
    ing to" the delinquent taxpayer, 26 U.S.C. SS 6321, 6331. The
    Supreme Court has thus acknowledged the similarity in the
    scope of the provisions. See National Bank of Commerce, 472
    U.S. at 719, 720 (1985) ("The statutory language`all property
    and rights to property,' appearing in S 6321 (and, as well, in
    S 6331(a) . . . ), is broad and reveals on its face that Congress
    meant to reach every interest in property that a taxpayer might
    have.").3
    
    2
    
    Mrs. McIntyre next argues that our holding in Babb is inap-
    plicable because the property at issue in that case, a bank
    account, was not regulated by ERISA whereas the pension
    payments at issue in this case are. Her distinction of Babb
    based on the role of ERISA in this case appears to rest on one
    of two arguments; neither of them is valid.
    The first argument is that ERISA effectively preempts Cal.
    Fam. Code S 910 and thereby preempts California law to the
    extent that it gives Mrs. McIntyre's husband any interest in
    her share of his pension benefits (by giving to his creditors
    recourse against her share). Because Mrs. McIntyre's husband
    has no interest in her share under the remaining, non-
    preempted provisions of California law, the argument goes,
    the scope of the IRS's levy authority cannot extend to her
    share.
    
    [4] This argument relies on an over-exuberant interpreta-
    tion of ERISA's anti-alienation provision, which requires only
    that any ERISA-governed pension plan "provide that benefits
    provided under the plan may not be assigned or alienated." 29
    U.S.C. S 1056(d)(1). The underlying premise is that, because
    ERISA's anti-alienation provision would preclude the opera-
    tion of S 910 to the extent that it would permit creditors to
    proceed against the pension benefits at issue, cf. Guidry v.
    Sheet Metal Workers Nat'l Pension Fund, 493 U.S. 365
    (1990); Ablamis v. Roper, 937 F.2d 1450, 1458 (9th Cir.
    1991), the same provision also must preclude the operation of
    S 910 to the extent it "implicitly" grants an interest in the
    same benefits to her husband. We reject this premise.
    Although the creditors' recourse guaranteed by S 910 may be
    ineffective against Mrs. McIntyre's share of her husband's
    pension benefits, it does not follow that the husband's prop-
    erty interest therein has been similarly vitiated. ERISA's anti-
    alienation provision plainly does not preempt the operation of
    California law insofar as it vests in the husband a continuing
    property interest in his own pension benefits, for less is being
    alienated from the plan beneficiary (the husband) in this cir-
    cumstance than if his interest in those benefits were entirely
    foreclosed. Mrs. McIntyre's argument based upon ERISA's
    preemption of S 910 thus must fail.
    
    [5] The bankruptcy and district courts interpreted Mrs.
    McIntyre's argument to be simply that ERISA's anti-
    alienation provision prevents the IRS from levying on the
    benefits from any ERISA-governed pension plan. As an initial
    matter, the Internal Revenue Code expressly indicates that no
    other federal law shall exempt property from the IRS's
    authority to levy a delinquent taxpayer's property under
    S 6331. See 26 U.S.C. S 6334(c). Moreover, ERISA's anti-
    alienation clause cannot prevent the IRS from undertaking
    what would otherwise be a valid exercise of its levy authority
    under 26 U.S.C. S 6331, because ERISA itself has a saving
    clause that states: "Nothing in this subchapter[which includes
    the anti-alienation provision] shall be construed to alter,
    amend, modify, invalidate, impair, or supersede any law of
    the United States." 29 U.S.C. S 1144(a). The only other cir-
    cuit that has addressed this issue reached the same conclusion,
    which authority we find persuasive. See Shanbaum v. United
    States, 32 F.3d 180, 182-83 (5th Cir. 1994); cf. United States
    v. Sawaf, 74 F.3d 119, 123-24 (6th Cir. 1996) (upholding the
    treasury regulation that authorizes the IRS to levy on the ben-
    efits of an ERISA-governed plan and applying that regulation
    to uphold the IRS's collection against such benefits); Ander-
    son v. United States, 149 B.R. 591, 595 (9th Cir. BAP 1992)
    (upholding a tax lien against benefits from an ERISA-
    governed plan).4 We think it is plain that the IRS's authority
    to proceed against a delinquent taxpayer's interest in benefits
    from an ERISA-governed plan is not constrained by ERISA's
    anti-alienation provision.
    
    AFFIRMED.
    _______________________________________________________________
    
    FOOTNOTES
    
    *The panel finds this case suitable for decision without oral argument.
    Fed. R. App. P. 34(a)(2).
    1 There is no claim that Jerry's pension benefits fall under an exemption
    enumerated in 26 U.S.C. S 6334.
    2 The government concedes that the pension benefits are community
    property, and thus we shall not address that claim here.
    3 It is true that the IRS's levy power is somewhat narrower in that it does
    not extend to property exempted under S 6334, but those exemptions are
    not relevant to Mrs. McIntyre's case.
    4 Treasury regulations interpreting the same language used in ERISA's
    anti-alienation provision also suggest that the IRS's levy authority is not
    restricted thereby. See 26 C.F.R. S 1.401(a)-13(B)(2) ("A plan provision
    satisfying the [anti-alienation] requirements . . . shall not preclude the fol-
    lowing: (i) The enforcement of a Federal tax levy made pursuant to section
    6331.").
    

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