                                                                              F I L E D
                                                                       United States Court of Appeals
                                                                               Tenth Circuit
                           UNITED STATES COURT OF APPEALS
                                                                               JAN 26 2005
                                   TENTH CIRCUIT
                                                                           PATRICK FISHER
                                                                                   Clerk

 In re:

 RONALD KENT KUNZ, also known as
 R. Kent Kunz, also known as Kent Kunz,
 also known as K. Kunz, also known as
 Ronald Kunz, also known as R. Kunz,

              Debtor.

 __________________________________

 STEPHEN W. RUPP, Trustee,

              Appellant,
 v.                                                          No. 04-4117
 RONALD KENT KUNZ, Trustee and                         (B.A.P. No. UT-03-100)
 Plan Administrator of the K & B                          (B.A.P. 10th Cir.)
 Development, Inc. Profit Sharing Plan;
 SYLVIA LAMAS, Trustee of the K & B
 Development, Inc. Profit Sharing Plan;
 and the K & B DEVELOPMENT, INC.
 PROFIT SHARING PLAN,

              Appellees.


                               ORDER AND JUDGMENT*




          This order and judgment is not binding precedent, except under the doctrines of
          *

law of the case, res judicata, and collateral estoppel. The court generally disfavors the
citation of orders and judgments; nevertheless, an order and judgment may be cited under
the terms and conditions of 10th Cir. R. 36.3.
Before TACHA, Chief Circuit Judge, BALDOCK, and EBEL, Circuit Judges.



      Debtor Ronald Kent Kunz (“Debtor”) voluntarily filed for chapter 7 bankruptcy in

November 2002. Debtor declared his ERISA-qualified retirement plan of K&B

Development, Inc. (“Plan”) on the appropriate schedule, but listed the Plan as exempt

from the bankruptcy estate on a separate schedule. Appellant Stephen Rupp, the Chapter

7 trustee (“Trustee”), filed an adversary proceeding in the bankruptcy court. The Trustee

stipulated the Plan was qualified under ERISA, but nevertheless sought control over

Debtor’s interest in the Plan. The bankruptcy court dismissed the adversary proceeding,

holding ERISA-qualified plans are not part of the bankruptcy estate under the Bankruptcy

Code, 11 U.S.C. § 541(c)(2), and Patterson v. Shumate, 504 U.S. 753 (1992). The

Bankruptcy Appellate Panel for the Tenth Circuit affirmed in a published opinion for “the

reasons stated in the bankruptcy’s court’s order[.]” Rupp v. Kunz, 309 B.R. 795, 796

(B.A.P. 10th Cir. 2004) (per curiam). The Bankruptcy Appellate Panel attached the

bankruptcy court’s order as an appendix to its opinion.

      We have jurisdiction, 28 U.S.C. § 158(d), and review de novo a bankruptcy court’s

interpretation of the Bankruptcy Code. Fidelity Sav. & Inv. Co. v. New Hope Baptist,

880 F.2d 1172, 1174 (10th Cir. 1989). On appeal, the Trustee renews his argument that

the Debtor’s powers and rights under the Plan constitute property of the bankruptcy estate

and therefore he can withdraw all the funds the Debtor has the power to withdraw from


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the Plan. We disagree.

       In Shumate, 504 U.S. at 760, the Supreme Court held a debtor may exclude his

interest in an ERISA-qualified pension plan from the bankruptcy estate because such

plans, by definition, contain a restriction on the transfer of a beneficial interest of the

debtor in a trust that is enforceable under applicable non-bankruptcy law. We too have

held a “tax-qualified ERISA pension or profit sharing plan is exempt from the bankruptcy

estate under § 541(c)(2).” Gladwell v. Harline, 950 F.2d 669, 674 (10th Cir. 1991).

Thus, Supreme Court and Tenth Circuit precedent clearly foreclose the Trustee’s

argument. To the extent the Trustee claims his argument is “novel,” we disagree because

the Debtor’s powers and rights under the Plan are subsumed within his interest in the

Plan. See Black’s Law Dictionary 816 (7th ed. 1999) (defining “interest” as, among other

things, “all or part of a legal or equitable claim to or right in property”). Having carefully

reviewed the parties’ briefs, the record, and applicable law, we AFFIRM for substantially

the same reasons as set forth in the well-reasoned bankruptcy court’s order. See Kunz,

309 B.R. at 796-99.

                                            Entered for the Court,



                                            Bobby R. Baldock
                                            Circuit Judge




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