                                                                                FILED
                                                                    United States Court of Appeals
                                                                            Tenth Circuit
                           UNITED STATES COURT OF APPEALS
                                                                            April 24, 2012
                               FOR THE TENTH CIRCUIT
                                                                        Elisabeth A. Shumaker
                                                                            Clerk of Court


 In re:

 DOUGLAS JAMES REINHART,

              Debtor.
                                                             No. 09-4028
                                                   (D.C. No. 2:08-CV-00562-DAK)
 DAVID L. GLADWELL, Trustee,                                  (D. Utah)

              Appellant,
 v.

 DOUGLAS JAMES REINHART,

              Appellee.


                               ORDER AND JUDGMENT *


Before KELLY, HOLLOWAY, and MURPHY, Circuit Judges. ∗∗



          ∗
         This order and judgment is not binding precedent, except under the doctrines of
law of the case, res judicata, and collateral estoppel. It may be cited, however, for its
persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
          ∗∗
          The Honorable Deanell R. Tacha was originally a member of this panel and
participated in the panel’s per curiam decision to certify a question of state law to the
Utah Supreme Court. Judge Tacha resigned her commission while we awaited resolution
of the certified question. After the certified question was resolved by the Utah Supreme
Court, the Honorable Michael R. Murphy took Judge Tacha’s place on the panel.
          Dr. Douglas Reinhart started a Keogh retirement plan in 1992. His plan was

created using documents designed by professionals to comply with the tax code and IRS

procedural requirements. Even though the plan was initially set up to conform to

applicable law, ultimately Dr. Reinhart failed to operate it in accordance with its terms.

Consequently, the plan fell out of compliance with the tax law. For example, Dr.

Reinhart failed to include his wife, who was his employee, as a participant in the Keogh

plan. Because the plan’s formation documents required him to make all employees

participants, this defect, among others, disqualified the Keogh plan from eligibility for

favorable tax treatment.

          Almost a decade after establishing the retirement plan, Dr. Reinhart filed for

bankruptcy. Dr. Reinhart sought to exempt funds in his Keogh plan from inclusion in the

bankruptcy estate, arguing that Utah law provides for exemption of funds in a Keogh plan

even if the plan suffers from operational defects that disqualify it from beneficial tax

treatment. The Utah Supreme Court, in response to our request, advised us that Utah law

allows exemption of retirement plan funds as long as the plan substantially complies with

the IRS’s tax requirements. Considering Dr. Reinhart’s Keogh plan against that

compliance standard, we conclude that he is entitled to exempt the plan’s funds from the

estate.




                                                2
       One additional wrinkle: Dr. Reinhart contributed $20,400 to the Keogh plan

within one year of filing for bankruptcy. Even though the funds in his retirement plan are

generally exempt from the bankruptcy estate, Utah law does not accept exemption of

preferential contributions of this sort. So Dr. Reinhart was ordered by the bankruptcy

court to turn $20,400 over to the trustee of his estate. The problem is that he was not

ordered to turn over earnings produced by those funds. Allowing Dr. Reinhart to keep

earnings produced by this nonexempt property violates the Bankruptcy Code.

Accordingly, we remand the case back to the bankruptcy court.

                                          * * *

       Appellant David Gladwell, acting as trustee for Debtor-Appellee Dr. Douglas

Reinhart’s bankruptcy estate, appeals the district court’s affirmance of the bankruptcy

court’s ruling, which exempted from the estate most of the funds held in a Keogh

retirement plan established by Dr. Reinhart. On appeal, Mr. Gladwell raises two issues.

First, he argues that controlling Utah property law dictates that the retirement plan’s

funds do not qualify for any exemption from the bankruptcy estate. Second, even if the

plan’s funds are generally exempt under Utah law, he asserts that federal bankruptcy law

does not allow earnings produced by nonexempt contributions to be equitably exempted

from the estate. We certified a question of state law to the Utah Supreme Court to aid in

our resolution of the first issue, and have received further guidance from that court.

Applying Utah law, we AFFIRM the bankruptcy court’s decision to uphold Dr.


                                             3
Reinhart’s claimed exemption for funds in his Keogh retirement plan. However,

applying federal bankruptcy law, we REVERSE the bankruptcy court’s turnover order,

which failed to include earnings produced by $20,400 in preferential contributions to the

retirement plan, and we REMAND the case back to the bankruptcy court for

modification of that order in accordance with this decision.

                                   I. BACKGROUND

       A. Factual Background

       Dr. Reinhart, an anesthesiologist, practiced medicine in Ogden, Utah. In

December 1992, he set up a retirement plan with Charles Schwab & Co (“Schwab”),

which throughout this litigation has been characterized as a “Keogh plan” established

pursuant to § 401(a) of the Internal Revenue Code (“IRC”). The Internal Revenue

Service (“IRS”) describes Keogh plans and some of their technical requirements in a

publication titled “Retirement Plans for Small Businesses”:


       These qualified retirement plans set up by self-employed individuals are
       sometimes called Keogh or H.R.10 plans. A sole proprietor or a partnership
       can set up one of these plans. A common-law employee or a partner cannot
       set up one of these plans. The plans described here can also be set up and
       maintained by employers that are corporations. All the rules discussed here
       apply to corporations except where specifically limited to the self-
       employed.

       The plan must be for the exclusive benefit of employees or their
       beneficiaries. These qualified plans can include coverage for a self-
       employed individual.




                                             4
As an employer, you can usually deduct, subject to limits, contributions you
make to a qualified plan, including those made for your own retirement.
The contributions (and earnings and gains on them) are generally tax free
until distributed by the plan.

                                   * * *

Profit-sharing plan. Although it is called a “profit-sharing plan,” you do
not actually have to make a business profit for the year in order to make a
contribution (except for yourself if you are self-employed as discussed
under “Self-employed Individual” later). A profit-sharing plan can be set up
to allow for discretionary employer contributions, meaning the amount
contributed each year to the plan is not fixed. An employer may even make
no contribution to the plan for a given year.

The plan must provide a definite formula for allocating the contribution
among the participants and for distributing the accumulated funds to the
employees after they reach a certain age, after a fixed number of years, or
upon certain other occurrences.

                                   * * *

Money purchase pension plan. Contributions to a money purchase pension
plan are fixed and are not based on your business profits. For example, if
the plan requires that contributions be 10% of the participants'
compensation without regard to whether you have profits (or the self-
employed person has earned income), the plan is a money purchase pension
plan. This applies even though the compensation of a self-employed
individual as a participant is based on earned income derived from business
profits.




                                      5
IRS, Publication 560, at 12 (Feb. 7, 2012) (available at http://www.irs.gov/pub/irs-

pdf/p560.pdf) (last visited Apr. 19, 2012). 1

       Dr. Reinhart’s plan was a “combination plan” which incorporated both a profit-

sharing plan and a money purchase pension plan. In general, Dr. Reinhart funded his

Keogh plan by depositing money into the Schwab account, more or less in the same way

as one might fund an ordinary checking account by depositing checks. The ease with

which Dr. Reinhart funded his Keogh plan, however, belied the complexity of the tax

rules governing it. This proved troublesome, as Dr. Reinhart ultimately failed to operate

his plan within the statutory requirements of IRC § 401(a), rendering the plan disqualified

from beneficial tax treatment. The plan’s specific operational defects are discussed in

greater detail in Part I.B, infra.

       B. Bankruptcy Proceedings

       Dr. Reinhart eventually ran into financial troubles due to investments unrelated to

his medical practice, and filed for bankruptcy under Chapter 7 of the Bankruptcy Code on

January 28, 2000 (“petition date”). Pursuant to the Bankruptcy Code, Dr. Reinhart filed

required schedules with his bankruptcy petition. Schedule C listed funds which Dr.

Reinhart claimed were exempt from claims of creditors. Dr. Reinhart amended his


       1
        Although administrative guidance contained in an IRS publication is not binding
on the government, it nevertheless affords helpful background information about Keogh
plans, which are formally referred to as “qualified plans” by the IRS.



                                                6
Schedule C twice, ultimately claiming a $333,835.65 exemption for funds in his Keogh

retirement plan. Mr. Gladwell was appointed as the trustee of Dr. Reinhart’s bankruptcy

estate, and objected to the claimed exemption for funds held in the Schwab Keogh plan. 2

Mr. Gladwell stated two grounds for his objection: (1) the Keogh plan was not tax-

qualified under § 401(a) of the IRC, and thus the funds in it were not eligible for

exemption under the Bankruptcy Code and Utah law; and (2) even if the plan’s funds

were generally exempt, amounts contributed to the plan by Dr. Reinhart within one year

of the petition date were nonexempt under Utah law.

       The bankruptcy court presiding over Dr. Reinhart’s bankruptcy case held a bench

trial to resolve Mr. Gladwell’s objections. At trial, expert testimony was elicited from W.

Waldan Lloyd, a lawyer who specializes in federal retirement and tax law. Mr. Lloyd

testified that the Keogh plan was defective, and thus disqualified from receiving special

tax treatment under § 401(a) of the IRC. Specifically, Mr. Lloyd opined that the plan had

the following tax defects as of the petition date:

       (1) Dr. Reinhart’s wife was employed by Dr. Reinhart himself and later by the

       professional corporation (“PC”) that Dr. Reinhart established and owned, but she



       2
         Dr. Reinhart also claimed an exemption for funds held in a “403(b)(7) plan.”
Although Mr. Gladwell initially objected to this exemption, that objection was later
withdrawn. The claimed exemption for funds in Dr. Reinhart’s Keogh plan is the only
subject of dispute in this litigation.



                                              7
       was never made a participant in the plan as required by the plan’s formation

       documents and IRC;

       (2) Dr. Reinhart failed to contribute to the “money pension purchase” portion of

       his plan from 1996 through 2000, even though the plan’s formation documents

       required 10% contributions to the money purchase pension plan;

       (3) Dr. Reinhart caused the plan to make a loan to a third party without first

       putting money for the loan into the Schwab account;

       (4) Dr. Reinhart made a contribution that exceeded statutory limits by some

       $1,456 in 2000; and

       (5) When he switched his business model from a sole proprietorship to a PC, the

       PC did not become the administrator of the Keogh plan, and Dr. Reinhart

       continued making contributions to the plan in his individual capacity while

       employed by the PC.

       Mr. Lloyd further testified, however, that all of these defects fell within the

parameters of the IRS’s system for correcting retirement plan defects, known as EPCRS. 3



       3
        “EPCRS” stands for Employee Plan Compliance Resolution System. It allows a
plan operator to retain beneficial tax treatment of a retirement plan even though the plan
has suffered from operational defects that cause it to fall out of compliance with the IRC.
Without EPCRS, all the beneficiaries (e.g. ordinary employees of a company who have
nothing to do with retirement plan management) of any plan that fell out of compliance
— even if in a de minimis fashion — would suffer potentially severe adverse tax

                                                                               (continued…)

                                              8
Even though some of the defects of the Keogh plan involved factual issues contested at

trial, these disqualifying characteristics are not contested on appeal. In other words, on

appeal Dr. Reinhart concedes that as of the petition date, each of these defects

disqualified the Keogh plan from receiving beneficial tax treatment under 26 U.S.C. §

401(a). 4

       After trial, the bankruptcy judge orally entered his factual findings and legal

conclusions into the record. The judge explicitly deemed credible Mr. Lloyd’s expert

testimony. Relying on that expert testimony, the judge concluded that Dr. Reinhart’s

Keogh plan was “operationally in default” when the bankruptcy petition was filed, but

was nevertheless covered by Utah’s exemption statute because “the debtor need not

present strict compliance with the Internal Revenue Code” for funds in a Keogh plan to

achieve exempt status. Aplt. App’x at 51-52. Accordingly, Mr. Gladwell’s objection to

exemption of all the funds in the Keogh plan was overruled.




(…continued)

consequences if the plan was challenged by the IRS. EPCRS is fully described in and
administered pursuant to IRS Rev. Proc. 2008-50.
       4
        Our initial certification order, submitting a legal question to the Utah Supreme
Court, describes in greater detail the facts underlying these tax defects. See Gladwell v.
Reinhart (In re Reinhart), 362 F. App’x 919, 921-22 (10th Cir. 2010) (per curiam)
(unpublished).



                                             9
       As to alleged preferential contributions to the Keogh plan, 5 the bankruptcy judge

concluded that Dr. Reinhart had contributed $20,400 to the Keogh plan within one year

of filing his bankruptcy petition. These funds were deemed nonexempt under Utah Code

Ann. § 78B-5-505(1)(b)(ii) (2008) 6 and ordered turned over to the Trustee. Aplt. App’x

at 28; 31-32. The bankruptcy judge did not address the turnover of any earnings

produced by those preferential contributions. Mr. Gladwell never objected to the form of

the turnover order entered by the bankruptcy court, but his formal objection to the

claimed exemption for funds in the Keogh plan had argued that “benefits accrued . . . on

behalf of the Debtor” within one year of the petition date. Aplt. App’x at 13.

       C. Appellate Proceedings




       5
        We recognize that a “preference” is a term with particular legal significance
under the Bankruptcy Code. See 11 U.S.C. § 547. Utah’s exemption statute contains an
analogous provision, proscribing retirement plan contributions from exemption if they are
made within one year of filing for bankruptcy. See Utah Code Ann. § 78B-5-
505(1)(b)(ii). We refer to the $20,400 amount as “preferential contributions” as a matter
of convenience, without invoking any legal significance given to the term “preference”
by the Bankruptcy Code.
       6
        Unsurprisingly, the Utah Code has undergone amendment since Dr. Reinhart’s
bankruptcy petition was filed twelve years ago. Amendments have resulted in
renumbering of the statutory provisions relevant to this case. Because no substantive
changes that bear on this case were made to any provisions of the Utah Code since the
bankruptcy petition was filed, for convenience we refer to Utah statutes as they are
presently codified.



                                            10
       Mr. Gladwell appealed to the district court. The district court affirmed the

bankruptcy court, incorporating by reference the bankruptcy judge’s findings and

conclusions which had been entered into the record orally. Aplt. App’x at 373-74. As to

earnings produced by the preferential contributions, the district court went beyond the

bankruptcy court’s explicit findings, and ruled that the bankruptcy court properly

“exercised its equitable powers to the limit the turnover amount to the principal amount

[of contributions].” Id. at 374. Mr. Gladwell timely appealed the district court’s decision

to this Court.

       After oral argument on this matter, in January 2010 we entered an amended per

curiam decision certifying a necessary and unresolved question of state law to the Utah

Supreme Court. Gladwell v. Reinhart (In re Reinhart), 362 F. App’x 919 (10th Cir.

2010) (per curiam) (unpublished). The Utah Supreme Court heard arguments from the

parties in March 2011 and issued its decision in December 2011. Gladwell v. Reinhart

(In re Reinhart), 267 P.3d 895 (Utah 2011). Aided by the Utah Supreme Court’s

guidance as to matters of Utah law as well as supplemental briefing by the parties, we

now resume our consideration of this case.

       The district court properly exercised jurisdiction over this case pursuant to 11

U.S.C. § 158(a)(1), (c)(1)(A). We exercise jurisdiction over the district court’s final

decision pursuant to 28 U.S.C. § 1291 and 11 U.S.C. § 158(d)(1). “We review matters of

law de novo,” and defer to bankruptcy court’s factual findings unless clearly erroneous,


                                             11
remaining mindful that “the Bankruptcy Code must be construed liberally in favor of the

debtor and strictly against the creditor.” Mathai v. Warren (In re Warren), 512 F.3d

1241, 1248 (10th Cir. 2008) (quotations omitted).

                 II. EXEMPTION OF THE ENTIRE KEOGH PLAN

       A. Background Bankruptcy Law

       In order to provide context for the state property law that is disputed in this case,

we first lay out the basic principles of federal bankruptcy law which underlie this dispute.

As soon as a debtor files a petition for bankruptcy, the bankruptcy estate begins its legal

existence. 7 Some, but not all, of the debtor’s property as of the time of filing is included

in that estate. 8 Retirement plans are a mixed bag — although their funds generally are

not included in the estate, if the debtor and his spouse are the only participants in a

retirement plan, then the plan’s funds generally are included in the estate. 9 The parties do




       7
         See 11 U.S.C. § 541(a) (“The commencement of a [bankruptcy case] under
section 301, 302, or 303 of [the Bankruptcy Code] creates an estate. . . .”).
       8
         See 11 U.S.C. § 541(a)(1) (including as property of the bankruptcy estate “all
legal or equitable interests of the debtor in property as of the commencement of the case”
but providing for a number of excludable items in later subsections of the same section).
       9
         This distinction derives from 11 U.S.C. § 541(b)(7)(A)(i)(I), which excludes
from the bankruptcy estate “any amount . . . withheld by an employer from the wages of
employees for payment as contributions . . . to . . . an employee benefit plan that is
subject to title I of [ERISA].”

                                                                               (continued…)

                                              12
not dispute that Dr. Reinhart was the only participant in his Keogh plan and that its funds

were includable in the bankruptcy estate. 10

       Certain types of property that are nominally includable in the bankruptcy estate

may be declared exempt by a debtor, thus avoiding them from claims of creditors in

bankruptcy. See 11 U.S.C. § 522(b)(1). Exempt property is not part of the bankruptcy

estate, even if the Bankruptcy Code otherwise provides for its inclusion. The practical



(…continued)


       An ERISA “employee benefit plan” cannot exist without employees, and ERISA
regulations exclude from the definition of “employee” the owner of a business and his
spouse. See 29 CFR § 2510.3-3(c)(1) (“An individual and his or her spouse shall not be
deemed to be employees with respect to a trade or business, whether incorporated or
unincorporated, which is wholly owned by the individual or by the individual and his or
her spouse . . . .”); Id. § 2510.3-3(b) (“For purposes of title I of [ERISA] and this chapter,
the term “employee benefit plan” shall not include any plan, fund or program, other than
an apprenticeship or other training program, under which no employees are participants
covered under the plan. . . . For example, a so-called “Keogh” or “H.R. 10” plan under
which only partners or only a sole proprietor are participants covered under the plan will
not be covered under title I. However, a Keogh plan under which one or more common
law employees, in addition to the self-employed individuals, are participants covered
under the plan, will be covered under title I.”).
       10
          One of the deficiencies in Dr. Reinhart’s plan is that he did not allow all of his
employees to participate. And because Dr. Reinhart’s argument for exemption relies on
the correctable nature of his plan’s defects, we might well need to at least hypothetically
assume that all of his employees were participants in his plan. However, the only other
employee of Dr. Reinhart’s business was his wife. So even if we attribute to her
participation in the plan — as would have been required to comply with relevant
provisions of the IRC — the plan’s funds would still be includible in the estate pursuant
to 11 U.S.C. § 541(a), (b)(7)(A)(i)(I).



                                               13
effect of an exemption is to allow a debtor to retain the exempted property and avoid

having it used to repay creditors.

       In bankruptcy cases brought by Utah domiciliaries, Utah law governs whether

property can be exempted from the estate created by the Bankruptcy Code. 11 See 11

U.S.C. § 522(b)(3)(A). Utah law exempts from execution by creditors “any money or

other assets held for or payable to the individual [debtor]” where the debtor is “a

participant or beneficiary in a retirement plan or arrangement that is described in Section

401(a) . . . [of the] Internal Revenue Code.” 12 Utah Code Ann. § 78B-5-505(1)(a)(xiv).

If this statutory provision covers Dr. Reinhart’s Keogh plan, then its funds are exempt. If

not, the funds are part of the bankruptcy estate.

       B. Clarification from the Utah Supreme Court




       11
          The Bankruptcy Code ordinarily allows a debtor to avail himself of an
enumerated list of exemptions provided for in the Code itself. However, the Code also
permits states to preclude debtors from using that list. See 11 U.S.C. § 522(b)(2). Utah
has taken up Congress’s offer to establish its own exemptions and disregard the Code’s,
and thus Dr. Reinhart could only exempt property as expressly provided under Utah law.
See Utah Code Ann. § 78B-5-513 (“No individual may exempt from the property of the
estate in any bankruptcy proceeding the property specified in [11 U.S.C. § 522(d)],
except as expressly permitted under this part.”).
       12
         Utah’s exemption statute exempts plans “described in” other IRC provisions,
but we list only § 401(a) here for simplicity’s sake. Dr. Reinhart does not argue that his
Keogh plan might be “described in” any of the other listed provisions.



                                             14
       Having elucidated Utah property law’s impact on this dispute, we are left with a

simple enough question: Under Utah law, is Dr. Reinhart’s Keogh plan “described in” §

401(a) of the Internal Revenue Code? Our initial deliberation led us to ask for the

assistance of the Utah Supreme Court in interpreting Utah’s exemption statute. Pursuant

to Tenth Circuit Rule 27.1 and Utah Rule of Appellate Procedure 41, we certified a

question of state law to the Utah Supreme Court, asking whether, under Utah law, a

retirement plan is “described in” a provision of the IRC even if it does not comply with

each of the technical requirements listed in the terms of that provision. Gladwell v.

Reinhart (In re Reinhart), 362 F. App’x 919, 920 (10th Cir. 2010) (per curiam)

(unpublished).

       The Utah Supreme Court told us that as long as a retirement plan “substantially

complies” with § 401(a)’s requirements, it is covered by the Utah exemption statute.

Gladwell v. Reinhart (In re Reinhart), 267 P.3d 895, 899 (Utah 2011). The court

explained that it need not decide “which provisions of section 401(a) are substantial and

which ones are insignificant because the EPCRS has already made this determination,”

elaborating on its statement by noting that a plan in substantial compliance with § 401(a)

“can be corrected.” Id. at 899-900. Thus, a plain reading of the Utah Supreme Court’s

directive gives us an objective standard: A plan is in substantial compliance with § 401(a)

if its defects fall within the scope of those that can be corrected with the IRS’s EPCRS

system.


                                            15
       C. Application of Utah Law to Dr. Reinhart’s Keogh Plan

       Our resolution of this issue, then, comes down to one key question: Were the

Keogh plan defects correctable through the EPCRS system? The Trustee’s expert, Mr.

Lloyd, indicated that they all were at least potentially correctable under EPCRS. And the

bankruptcy court found Mr. Lloyd to be a credible witness. However, the bankruptcy

judge himself never made an explicit finding that the operational defects in the Keogh

plan could be corrected pursuant to EPCRS.

       The judge’s statement of his understanding of Mr. Lloyd’s testimony on this point

preceded his legal conclusion that the Keogh plan was eligible for exemption: “Mr. Lloyd

further testified that the -- all of these operational failures were remedial [sic], however.”

Aplt. App’x at 47. We cannot make sense of the judge’s statement. “Remedial” has no

logical application to an operational failure or defect. Nothing in Mr. Lloyd’s testimony

indicates that anything about the plan’s operational failures had to do with “providing a

remedy” or “means of obtaining redress” for anything at all. Black’s Law Dictionary

1407 (9th ed. 2009). We see two possibilities: (1) the bankruptcy judge meant to say

“remediable” (i.e. “[c]apable of being remedied, esp[ecially] by law,” Black’s Law

Dictionary 1407 (9th ed. 2009)) rather than “remedial”; or (2) the bankruptcy judge’s

statement was mistranscribed.

       While we are inclined to conclude that the judge did or meant to say “remediable,”

we need not rely on that intuition, because the bankruptcy court’s factual finding that Mr.


                                              16
Lloyd was a credible witness allows us to conclude that each Keogh plan defect was

correctable under EPCRS. Cf. Medina v. City and County of Denver, 960 F.2d 1493,

1495 n.1 (10th Cir. 1992) (“We are free to affirm a district court decision on any grounds

for which there is a record sufficient to permit conclusions of law, even grounds not

relied upon by the district court.”) (alterations and quotations omitted). When asked if

the defects in Dr. Reinhart’s Keogh plan were correctable under EPCRS, Mr. Lloyd

responded, “I don’t believe that errors here are errors that would fall outside the

parameters of the [EPCRS] program.” 13 Aplt. App’x at 229. Therefore, under the




       13
          Mr. Gladwell makes an additional argument in his supplemental brief that bears
mentioning. He claims that Mr. Lloyd offered no testimony about one of the operational
defects — specifically, the fact that Dr. Reinhart’s employer (i.e. the PC) neither
established nor maintained the Keogh plan as of the petition date. It follows, Mr.
Gladwell argues, that Mr. Lloyd could not have opined on the correctability of that
particular defect. Aplt. Supp. Br. at 9 (“As to the fifth [defect] (i.e. the failure of the
Debtor’s plan to be established and maintained by his employer on the petition date), Mr.
Lloyd did not testify.”).

       This contention is belied by the record. Mr. Lloyd identified and described the
five plan defects listed in Part I.B, supra, including the fact that the PC did not administer
the Keogh plan. Aplt. App’x at 214 (“So what we have is this sort of unusual situation
where the professional corporation is acting as the sponsor of a plan that it has not
formally adopted. That’s again, technically, another disqualifying event with respect to
the plan.”) (testimony of Mr. Lloyd). Shortly after describing in some detail each of the
plan’s defects, Mr. Lloyd opined that the “errors here” fell within the broad scope of
EPCRS. Aplt. App’x at 229. Thus, we disagree that Mr. Lloyd did not testify about this
defect, and reject Dr. Reinhart’s argument which relies on that faulty premise.



                                             17
standard set forth by the Utah Supreme Court, we hold that Dr. Reinhart’s Keogh plan

was “described in” IRC § 401(a).

       To be sure, the record reflects that Dr. Reinhart never actually used — or even

tried to use — the EPCRS system. 14 But the Utah Supreme Court has given us its

interpretation of Utah law, and told us that a plan is exempt if it “can be corrected.”

Reinhart, 267 P.3d at 899-900. As of the date the bankruptcy petition was filed, Dr.

Reinhart’s plan suffered from deficiencies which could, at least theoretically, be

corrected using EPCRS. While it might make good policy to require a debtor to actually

make some effort to use the EPCRS system before allowing them to exempt their

retirement plan from creditors, Utah has not seen fit to include that requirement as a

prerequisite to exemption. 15

       We recognize that this inviting standard makes Utah citizens’ retirement plans

exempt from creditors with minimal (if any) regard to their actual compliance with IRS


       14
         At oral argument before the Utah Supreme Court, Dr. Reinhart’s counsel
acknowledged Dr. Reinhart had made a strategic decision to avoid the EPCRS system in
hopes of letting the clock run out on the period within which the IRS could institute an
action challenging the tax qualification of the Keogh plan. See Aplt. Supp. App’x at 14.
       15
          The Utah Supreme Court observed: “[T]he fact that a debtor's retirement plan
fails to meet the requirements of section 401(a) at the time he files for bankruptcy does
not necessarily mean that the debtor never intends to amend his plan to comply with
those requirements.” Reinhart, 267 P.3d at 900. Despite this observation, we see no
indication in the court’s opinion requiring any actual efforts to use EPCRS in order to
satisfy the substantial compliance standard.



                                             18
provisions. EPCRS is inherently a flexible system, and does not include a definitive list

of correctable errors. Naturally, then, the scope of errors that might fall within its reach is

quite vast. Thus, anyone who superficially labels a set of savings as a “retirement plan”

will typically have a persuasive argument that they could correct that plan with EPCRS,

therefore permitting exemption of those savings. But the standard of theoretical

correctability is one that the Utah legislature has established, and one that only the Utah

legislature can change.

       If our intuition is correct, and Utah residents can use the exemption statute to

shield almost anything they label (whether artificially or genuinely) a “retirement plan,”

creditors may hesitate to lend to Utah borrowers who might avoid repayment through this

broad exemption statute. 16 However, such a policy concern is one for the Utah

legislature to address, not a court — and most certainly not a federal court tasked with

applying the rigors of Utah law. Applying Utah law, we hold that funds in Dr. Reinhart’s

Keogh plan were exempt from inclusion in the bankruptcy estate.

                   III. EQUITABLE EXEMPTION OF EARNINGS



       16
         It might be the case that under the Utah Supreme Court’s ruling, a plan cannot
substantially comply with IRC § 401(a) if it suffers from formation defects rather than
operational defects. Such a limitation might temper concerns about potential abuse of
Utah’s exemption provision. Here, however, we do not wrangle with the outer bounds of
substantial compliance, because the Keogh plan suffered from operational (as opposed to
formation) defects which were correctable under EPCRS.



                                              19
       Turning to the second issue appealed, we consider whether earnings produced by

$20,400 in preferential contributions should have been included in the turnover order.

Mr. Gladwell tells us that the bankruptcy court erred in excluding these earnings because

they were “[p]roceeds . . . or profits from property of the estate.” See 11 U.S.C. §

541(a)(6).

       Dr. Reinhart does not disagree that these earnings were nominally part of the

estate. Aplee. Br. at 21-23. Instead, Dr. Reinhart defends their exclusion from the

turnover order by asserting that the bankruptcy court acted pursuant to its equitable

powers under § 105(a) of the Bankruptcy Code in leaving them out of the turnover order.

Section 105(a) grants the bankruptcy court the power to “issue any order . . . or judgment

that is necessary or appropriate to carry out the provisions of [the Bankruptcy Code].”

       The basis for this purported exercise of the bankruptcy court’s equitable powers

under § 105(a), Dr. Reinhart tells us, is that Mr. Gladwell failed to identify “specific

theories and bases for objecting” to exemption of the Keogh plan until over six years

after Dr. Reinhart filed his bankruptcy petition. Aplee. Br. at 22. In other words, Dr.

Reinhart frames Mr. Gladwell’s claim for turnover of the earnings as procedurally

defaulted, and contends that a declination to include earnings produced by nonexempt

contributions is a proper equitable sanction for that default.

       The bankruptcy court never articulated the notion that it was permitted to exclude

earnings on the $20,400 from the turnover order as an exercise of its equitable powers


                                             20
under § 105(a). Instead, the first time this theory was discussed and adopted was in the

district court. We disagree with the district court’s justification, and conclude that the

bankruptcy court should not have excluded earnings on the $20,400 from the turnover

order. Specifically, we hold that the bankruptcy court did not have the authority to

withhold earnings on the preferential contributions as a sanction for an alleged procedural

default.

       Dr. Reinhart’s argument suffers from a fatal flaw: The Bankruptcy Code’s plain

language definitively states that proceeds from property of the estate are themselves

property of the estate. Under § 541(a)(6), “[p]roceeds . . . from property of the estate” are

property of the estate. Dr. Reinhart does not dispute that earnings produced by property

of the estate fall under this provision. Aplee. Br. at 21-23; see also Parkinson v.

Bradford Trust Co. of Boston (In re O’Brien), 50 B.R. 67 (Bankr. E.D. Va. 1985)

(including in the bankruptcy estate pre- and post-petition earnings on nonexempt

prepetition contributions to a Keogh plan). This is Dr. Reinhart’s undoing, as “a

bankruptcy court’s exercise of its authority under § 105(a) may not contravene or

disregard the plain language of a statute.” Scrivner v. Mashburn (In re Scrivner), 535

F.3d 1258, 1263 (10th Cir. 2008)

       Our holding in Scrivner is particularly instructive as to the limits on exercise of

equitable authority under § 105(a). There, we held that the bankruptcy court may not,

acting under the guise of § 105(a), prevent a debtor from exempting property from the


                                             21
bankruptcy estate when the Bankruptcy Code permits him to make the exemption.

Scrivner, 535 F.3d at 1264-65. It follows just as strongly that the bankruptcy court may

not, in the name of equity, exclude property from the estate when the plain terms of the

Code put that property in the estate in the first place and do not allow for its exemption. 17

       Excluding earnings produced by property of the estate (viz. $20,400 in preferential

contributions) does not carry out any provision of the Bankruptcy Code. Rather, the

exclusion contravenes the plain terms of § 541 of the Bankruptcy Code, which include




       17
         Even if the bankruptcy court could impose a sanction that excluded funds which
are patently property of the estate under the Bankruptcy Code, such a sanction is not
warranted given the posture of this case. Dr. Reinhart has not shown that the six-year
“delay” between Mr. Gladwell’s initial objection and the trial date violated the
Bankruptcy Code or accompanying procedural rules.

         Fed. R. Bankr. Proc. 4003(b) provides, “[A] party in interest may file an objection
to the list of property claimed as exempt . . . within 30 days after any amendment to the
list or supplemental schedules is filed . . . .” Dr. Reinhart amended his Schedule C to
include funds in his Keogh plan on May 16, 2000. Aplt. App’x at 16. Mr. Gladwell
objected to the amended schedule on June 15, 2000, thirty days after the amendment was
filed. Id. at 12-13. The objection complied with the relevant procedural rules, and there
is no statute of limitations for turnover actions. See In re Mushroom Transportation Co.,
382 F.3d 325, 336-37 (3rd Cir. 2004) (“The Bankruptcy Code does not impose a statute
of limitations on turnover claims arising under [§ 542].”) (citing Solow v. American
Airlines, Inc. (In re Midway Airlines, Inc.), 221 B.R. 411, 458 (Bankr. N.D. Ill. 1998)).
Therefore, there is no procedural default to sanction.



                                              22
those earnings in the estate. This alone invalidates any supposed exercise of the

bankruptcy court’s equitable authority under § 105(a). 18

       Consequently, we conclude that the bankruptcy court erroneously excluded from

the estate earnings produced by $20,400 in nonexempt contributions to the Keogh

retirement plan, and remand for modification of the turnover order.




       18
          Dr. Reinhart also suggests that a sanction is appropriate because Mr. Gladwell’s
claim to the earnings is barred the equitable doctrine of laches. Cf. Aplee. Br. at 22 (“As
an equitable court, the [b]ankruptcy [c]ourt could limit the Trustee’s recovery based on
his delay in prosecuting his objection to the Debtor’s claimed exemption.”). Courts
disagree whether laches can be asserted as an equitable defense to a turnover suit.
Compare, e.g., Boyer v. Carlton, Fields, Ward, Emmanuel, Smith & Cutler P.A. (Matter
of USA Diversified Products, Inc.), 100 F.3d 53, 56 (7th Cir. 1996) (stating that equitable
affirmative defenses are unavailable in a turnover action brought under § 542) with, e.g.,
Wadsworth v. Viveros (In re Viveros), 456 B.R. 525, 528-29 (Bankr. D. Colo. 2011)
(allowing assertion of laches as an affirmative defense to a turnover action). We need not
reach a decision on the availability of this defense, because any exercise of § 105(a) was
invalid as contrary to the Bankruptcy Code and, in any event, Dr. Reinhart cannot satisfy
the elements of laches.

        “Laches consists of two elements: (1) inexcusable delay in instituting suit; and (2)
resulting prejudice to [the] defendant from such delay.” Brunswick Corp v. Spinit Reel
Co., 832 F.2d 513, 523 (10th Cir. 1987) (citing University of Pittsburgh v. Champion
Products Inc., 686 F.2d 1040, 1044 (3d Cir. 1982)). Laches does not apply here because
Dr. Reinhart has not shown that he was prejudiced by Mr. Gladwell’s alleged delay in
prosecuting his objection. Thus, even if we assume (without deciding) that Mr. Gladwell
lacked diligence in bringing this case to trial and laches is available as an affirmative
defense in a § 542 turnover action, equity does not support concocting a remedy inuring
to the sole benefit of Dr. Reinhart.



                                             23
                                  IV. CONCLUSION

       We AFFIRM the bankruptcy court’s decision to allow Dr. Reinhart’s exemption

of funds held in his Keogh plan, agreeing with its assessment that prepetition

contributions amounting to $20,400 are not exempt from the bankruptcy estate. We

REVERSE the bankruptcy court’s turnover order, which did not include earnings

produced by the $20,400 in preferential contributions as required by the Bankruptcy

Code, and REMAND the case to the bankruptcy court for modification of that order in

accordance with this decision.

IT IS SO ORDERED.



                                          ENTERED FOR THE COURT



                                          William J. Holloway, Jr.
                                          Circuit Judge




                                            24
