       United States Bankruptcy Appellate Panel
                         For the Eighth Circuit
                     ___________________________

                             No. 16-6023
                     ___________________________

        In re: Sheri Lynn Hanson, formerly known as Sheri Lynn Alger

                            lllllllllllllllllllllDebtor

                           ------------------------------

                              Sheri Lynn Hanson

                      lllllllllllllllllllllDebtor - Appellant

                                        v.

                               Randall L. Seaver

                      lllllllllllllllllllllTrustee - Appellee
                                   ____________

                Appeal from United States Bankruptcy Court
                 for the District of Minnesota - Minneapolis
                                ____________

                        Submitted: December 8, 2016
                           Filed: January 6, 2017
                              ____________

Before FEDERMAN, Chief Judge, SALADINO and NAIL, Bankruptcy Judges.
                            ____________

SALADINO, Bankruptcy Judge
       The debtor appeals from an order of the bankruptcy court1 sustaining the
trustee’s objection to an exemption claimed by the debtor. Specifically, the
bankruptcy court held that a Minnesota property tax refund under Minn. Stat. Ann.
§ 290A.04 (West) is not exempt under Section 550.37 (Subd. 14) of the Minnesota
statutes as “government assistance based on need,” following this panel’s decision
in Manty v. Johnson (In re Johnson), 509 B.R. 213 (B.A.P. 8th Cir. 2014). The debtor
appeals, asserting that Johnson was implicitly overruled by a subsequent decision of
the Eighth Circuit Court of Appeals in In re Hardy, 787 F.3d 1189 (8th Cir. 2015).

      For the reasons set forth below, we affirm.

                             STANDARD OF REVIEW

        The panel reviews the bankruptcy court’s findings of fact for clear error and
conclusions of law de novo. Manty v. Johnson (In re Johnson ), 509 B.R. 213, 214
(B.A.P. 8th Cir. 2014) (citing Addison v. Seaver (In re Seaver), 540 F.3d 805, 809
(8th Cir. 2008)). The bankruptcy court’s statutory interpretation is a question of law
that is subject to de novo review. Id. at 214-15 (citing Graven v. Fink (In re Graven),
936 F.2d 378, 384-85 (8th Cir. 1991)). Likewise, the allowance or disallowance of
an exemption is subject to de novo review. Id. at 215 (citing Drenttel v. Jensen-Carter
(In re Drenttel), 309 B.R. 320, 322 (B.A.P. 8th Cir. 2004)).

                                  BACKGROUND

       Bankruptcy debtors in Minnesota may choose either the federal exemptions or
the exemptions provided under Minnesota and other federal law. Johnson, 509 B.R.
at 215 (citing Martin v. Bucher (In re Martin), 297 B.R. 750, 751-52 (B.A.P. 8th Cir.


      1
       The Honorable Michael E. Ridgway, United States Bankruptcy Judge for the
District of Minnesota.

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2003)). The debtor in this case opted to protect her assets under the Minnesota
exemption provisions and claimed an exemption in a portion of a $1,500.00 property
tax refund as government assistance based on need. The bankruptcy court sustained
the Chapter 7 trustee’s objection to the exemption, stating that the precedent of
Johnson and In re Padilla, 513 B.R. 116 (D. Minn. 2014), precluded a contrary
ruling.

       Section 550.37 of the Minnesota statutes sets forth a list of property that may
be claimed as exempt. Subdivision 14 of that statute in effect as of the petition date
exempts public assistance, as follows:

             Subd. 14. Public assistance. All government assistance
             based on need, and the earnings or salary of a person who
             is a recipient of government assistance based on need, shall
             be exempt from all claims of creditors including any
             contractual setoff or security interest asserted by a financial
             institution. For the purposes of this chapter, government
             assistance based on need includes but is not limited to
             Minnesota family investment program, general assistance
             medical care, Supplemental Security Income, medical
             assistance, MinnesotaCare, payment of Medicare part B
             premiums or receipt of part D extra help, MFIP
             diversionary work program, work participation cash
             benefit, Minnesota supplemental assistance, emergency
             Minnesota supplemental assistance, general assistance,
             emergency general assistance, emergency assistance or
             county crisis funds, energy or fuel assistance, and food
             support. The salary or earnings of any debtor who is or has
             been an eligible recipient of government assistance based
             on need, or an inmate of a correctional institution shall,
             upon the debtor’s return to private employment or farming
             after having been an eligible recipient of government
             assistance based on need, or an inmate of a correctional
             institution, be exempt from attachment, garnishment, or


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            levy of execution for a period of six months after the
            debtor’s return to employment or farming and after all
            public assistance for which eligibility existed has been
            terminated. The exemption provisions contained in this
            subdivision also apply for 60 days after deposit in any
            financial institution, whether in a single or joint account. In
            tracing the funds, the first-in first-out method of accounting
            shall be used. The burden of establishing that funds are
            exempt rests upon the debtor. Agencies distributing
            government assistance and the correctional institutions
            shall, at the request of creditors, inform them whether or
            not any debtor has been an eligible recipient of government
            assistance based on need, or an inmate of a correctional
            institution, within the preceding six months.

Minn. Stat. Ann. § 550.37 (West).

       The asset that the debtor claimed as exempt under that statute was a property
tax refund the debtor received under the State of Minnesota Property Tax Refund Act,
Minn. Stat. Ann. § 290A.01, et. seq. (West). The stated purpose of the Act is “to
provide property tax relief to certain persons who own or rent their homesteads.”
Minn. Stat. Ann. § 290A.02 (West).

      In Johnson, we determined that the Minnesota property tax refund was not
“government assistance based on need” under Minn. Stat. Ann. § 550.37 (West) and,
therefore, not exempt. In doing so, we described the property tax refund:

            The Act sets out three ways an individual may be eligible
            for such a property tax refund. First, the Act provides a
            refund for homeowners whose property taxes are in excess
            of certain percentages of household income. This provision
            provides for a phase-out of the refund as income level
            increases. The household income limit for these
            homeowners in 2012 was $103,729.20. Second, Minnesota
            provides a refund to renters whose rent exceeds certain

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             percentages of their household incomes. Similar to the
             homeowners’ refund, the statute has a phaseout of the
             renters’ refunds as income increases. The household
             income limit for the renters’ refund in 2012 was
             $56,219.22. And third, a homeowner may receive a refund
             if property taxes on a homestead increase more than twelve
             percent over the previous year, excluding increases
             attributable to improvements made to the property. This
             refund is available regardless of the homeowner’s income.

 Johnson, 509 B.R. at 217. We then discussed our decision in In re Hardy, 503 B.R.
722 (B.A.P. 8th Cir. 2013), which involved a similar issue under Missouri law. In that
case, we affirmed the bankruptcy court’s holding that the refundable component of
the federal child tax credit, also known as the “additional child tax credit,” was not
an exempt “public assistance benefit” under Missouri law. After further discussion
of the Minnesota property tax refund statute, we said, “In sum, for the same reasons
articulated in In re Hardy, we conclude that the property tax refund at issue here is
not ‘government assistance based on need,’ and is therefore not exempt under §
550.37, subd. 14.” Johnson, 509 B.R. at 219.

       Hardy was appealed to the Eighth Circuit Court of Appeals, which reversed.
In re Hardy, 787 F.3d 1189 (8th Cir. 2015). The Court of Appeals focused on a series
of amendments to the child tax credit statute in determining that Congress designed
it to benefit low-income families and therefore it is need-based and within the
Missouri exemption requirement for a public assistance benefit. The Eighth Circuit
reached this conclusion after reviewing a decade’s worth of legislative activity that
made the credit available to all families with qualifying children, increased the
amount of tax credit per child, increased the refundable portion of the tax credit, and
lowered the threshold earned income amount for refund eligibility. The applicable tax
tables indicated the phase-out income levels for various family sizes were modest –
one example in the opinion showed the refundable credit for a single parent with two
children phasing out completely at $37,550.00. 787 F.3d at 1196. The substantive

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effect of the amendments, the court observed, “substantially shifted the balance
between providing incentives for taxpayers to earn income, on the one hand, and
simply providing benefits to the needy, on the other.” Id. at 1195.

      In this appeal, the debtor argues that our decision in Johnson was implicitly
overruled by the reversal of our decision in Hardy by the Eighth Circuit. We disagree.

                                   DISCUSSION

      In the Eighth Circuit, it is clear that under most circumstances, a decision by
one panel binds a subsequent panel addressing the same issue:

             “[A]bsent an intervening opinion by a [state] court,” we are
              bound by a prior panel’s interpretation of state law.
             Washington v. Countrywide Home Loans, Inc., 747 F.3d
             955, 958 (8th Cir. 2014); see also Mader v. United States,
             654 F.3d 794, 800 (8th Cir. 2011) (en banc) (“It is a
             cardinal rule in our circuit that one panel is bound by the
             decision of a prior panel.” (quoting Owsley v. Luebbers,
             281 F.3d 687, 690 (8th Cir. 2002))).

Neidenbach v. Amica Mut. Ins. Co., 842 F.3d 560, 566 (8th Cir. 2016). However, the
rule regarding the binding precedent of a previous panel decision “does not apply
when the earlier panel decision is cast into doubt by an intervening Supreme Court
decision.” [United States v. Anderson, 771 F.3d 1064, 1066-67 (8th Cir. 2014)]
(citing [United States v.] Williams, 537 F.3d [969,] 975 [(8th Cir. 2008)]). United
States v. Eason, 829 F.3d 633, 641 (8th Cir. 2016).

       Accordingly, our earlier decision in Johnson is binding on this panel, absent
an intervening opinion on the issue by a state court – which has not been alleged –
or an intervening decision by a higher court which casts doubt on the earlier panel’s
decision. The debtor asserts that our decision in Johnson was overruled by the Eighth

                                         -6-
Circuit’s decision in Hardy. For several reasons, we determine that it was not
overruled – implicitly or otherwise.

       In Hardy, the Eighth Circuit actually agreed with much of our analysis, saying:
“We agree with the BAP that ‘public assistance benefits’ are those government
benefits provided to the needy.” 787 F.3d at 1193. Ultimately, the Court of Appeals
held that the Additional Child Tax Credit met that definition, basing its decision in
large part on amendments to the statute since its inception:

               As evidenced by the various amendments to the initial CTC
               and the accompanying legislators’ comments about those
               changes, the intent of the legislature when modifying the
               ACTC was to benefit low income families. The ACTC has
               fulfilled Congress’s goals. In practice, it appears to
               overwhelmingly benefit low-income families.

Id. at 1196.

       Of course, the amendments to the federal Additional Child Tax Credit statute
discussed in Hardy have no bearing on the Minnesota property tax refund statute at
issue here and in Johnson. However, the debtor in this case set out the legislative
history of the Minnesota Property Tax Refund Act in an effort to show this court that
through “numerous changes and adjustments to the form of, manner of, amount of,
and qualification for relief under the Act . . . , the Legislature has not abandoned its
purpose of providing relief to homeowners based upon the Legislature’s
determination of need.” Appellant’s Br. at 13. We disagree.

       A review of that history indicates the legislature has never tailored the refund
to low-income homeowners. In 1994, the Minnesota Legislature made the property
tax refund more readily available to higher income individuals by reducing the
“percent paid by claimant” and increasing the refund available to all claimants other
than those in the highest income bracket. The refund eligibility phase-out level was

                                          -7-
also increased to $61,929.00. In 2001, the statute was further amended to increase the
maximum household income eligibility to $77,519.00. In 2008, the legislature
decreased the percentage-of-income threshold for the top five income brackets from
4.0% to 3.5%. In 2011, the maximum refund was increased to $2,460.00, and the
maximum eligible household income level was increased to $100,779.00. In 2013, the
legislature increased the maximum refund available to $2,580.00, and raised the
phase-out to household incomes exceeding $105,500.00. The 2013 changes also
lowered the threshold percentage for determining eligibility for all homeowners with
household incomes exceeding $19,530.00, including those individuals at the highest
income brackets. The amendments to the Minnesota Property Tax Refund Act
demonstrate the legislature’s intent to make the refund available to individuals
besides the needy by raising the maximum eligible household income and lowering
the threshold income percentage for higher income individuals. There is no basis in
the legislative history for a finding that the Act was intended to benefit low-income
homeowners.

       Finally, counsel for the debtor acknowledged at oral argument that this appeal
only involves subdivision 2 of section 290A.04 of the State of Minnesota Property
Tax Refund Act. That is because one of the other ways to obtain a refund under the
Act is set forth at subdivision 2h of section 290A.04. That subdivision provides an
additional property tax refund to homeowners whose property taxes increased more
than 12% over the prior year. This additional refund is available without regard to
income level or need and is instructive in interpreting a different subsection of the
same statute.

             When engaging in statutory interpretation we must “read
             and construe the statute as a whole, giving effect wherever
             possible to all of its provisions, and interpret[ing] each
             section in light of the surrounding sections to avoid
             conflicting interpretations.” Eclipse Architectural Grp.,



                                         -8-
             Inc. v. Lam, 814 N.W.2d 692, 701 (Minn. 2012) (citation
             omitted).

Minnesota ex rel. N. Pac. Ctr., Inc. v. BNSF Ry. Co., 686 F.3d 567, 572 (8th Cir.
2012).

                                   CONCLUSION

        To be clear, Hardy in no way alters the ruling in Johnson. The issue in Johnson
and in this case is whether the property tax refund is “government assistance based
on need,” and in Johnson we looked to legislative expression and other Minnesota
cases in determining that the property tax refund is not a need-based benefit because
it goes beyond addressing the basic economic necessities of low-income persons. The
statute has not changed significantly since Johnson, and neither has our interpretation
of it. Johnson is still good law, the Minnesota Property Tax Refund Act does not
provide government assistance based on need, and the decision of the bankruptcy
court is hereby affirmed.

                       ______________________________




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