                 Case: 11-13115         Date Filed: 08/03/2012   Page: 1 of 23

                                                                                 [PUBLISH]

                   IN THE UNITED STATES COURT OF APPEALS

                               FOR THE ELEVENTH CIRCUIT
                                ________________________

                                       No. 11-13115
                                 ________________________

            D.C. Docket Nos. 1:11-cv-00136-CAP ; USBC 10-74119-WLH



In re: LOU ANN CASSELL,

llllllllllllllllllllllllllllllllllllllllDebtor.
______________________________________

ROBERT B. SILLIMAN,
Chapter 7 Trustee,

llllllllllllllllllllllllllllllllllllllllPlaintiff - Appellant,

versus

LOU ANN CASSELL,

llllllllllllllllllllllllllllllllllllllllDefendant - Appellee.

                                 ________________________

                        Appeal from the United States District Court
                           for the Northern District of Georgia
                              ________________________

                                         (August 3, 2012)
              Case: 11-13115     Date Filed: 08/03/2012    Page: 2 of 23

Before CARNES, MARTIN, and JORDAN, Circuit Judges.

CARNES, Circuit Judge:

       This is an appeal in a bankruptcy case that turns on the interpretation of a

Georgia statutory provision exempting certain annuities from bankruptcy estates.

The questions presented are sufficiently unsettled, important, and likely to recur

that we believe the best course is to certify them to the Georgia Supreme Court,

which is the one true and final arbiter of Georgia law. See Mullaney v. Wilbur,

421 U.S. 684, 691, 95 S.Ct. 1881, 1886 (1975) (noting that the United States

Supreme Court “repeatedly has held that state courts are the ultimate expositors of

state law”); Blue Cross & Blue Shield of Ala., Inc. v. Nielsen, 116 F.3d 1406,

1413 (11th Cir. 1997) (“The final arbiter of state law is the state supreme court . . .

.”).

                                           I.

       In late 2008, Cassell inherited $220,000 from her aunt. At that time, both

Cassell and her wholly owned company, J&L Arborists, LLC, were insolvent.

Cassell was still able to pay both her personal debts and the company’s debts as

they came due, at least for a while. After consulting with attorneys and

accountants, she used her $220,000 inheritance to purchase a single-premium

fixed annuity on May 1, 2009. Cassell was 65 years old at that time. She began

                                           2
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receiving monthly payments of $1,389.14 on June 1, 2009, and under the annuity

contract she is scheduled to receive those payments for the rest of her life. The

contract also guarantees the payments for ten years regardless of when Cassell

dies. She designated her children as the beneficiaries of the payments if she dies

within the ten-year guarantee period.

      On May 11, 2010, a year after she had purchased the annuity, Cassell filed a

Chapter 7 bankruptcy petition (as did her company). She included the annuity as

an asset in her Schedule B disclosures, and in her Schedule C filing she listed it as

exempt property under Ga. Code Ann. § 44-13-100(a)(2)(E). That Georgia

statutory provision permits a debtor to exempt from her bankruptcy estate

“annuity” payments if the payments are both “on account of . . . age” and

“reasonably necessary for the support of the debtor.” Id.

      The trustee objected, contending that Cassell’s annuity is nonexempt

because it does not meet the requirements of the statute. The trustee argued that

the word “annuity” in the Georgia exemption statute has a special meaning and not

every investment or insurance product labeled as an annuity qualifies as one under

the statute. The trustee asserted that Cassell’s annuity does not qualify under Ga.

Code Ann. § 44-13-100(a)(2)(E) because: (1) Cassell purchased it with funds she

inherited instead of with her salary or wages; (2) she did not intend for the

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payments to substitute for her wages; (3) she exercised too much control over it;

and (4) the circumstances suggest she purchased it as a prebankruptcy planning

measure. According to the trustee, the payments Cassell receives are not “on

account of . . . age” because she chose to begin receiving them immediately, and

the fact that she was 65 when she purchased the annuity is not enough to make the

payments on account of age. Finally, the trustee argued that the payments are not

“reasonably necessary” for Cassell’s support because she is self-sufficient and was

not supported by her aunt.

      The bankruptcy court held that Cassell’s annuity is an “annuity” within the

meaning of the Georgia bankruptcy exemption statute. The court based that

conclusion on findings that: when Cassell purchased it she intended for the

payments she would receive to substitute for wages; the payment option she

selected reflected her intent to obtain income for the duration of her life; the

annuity was not prebankruptcy planning; and she did not have inappropriate

control over the corpus. The court also decided that the payments were “on

account of . . . age” due to the fact that she had purchased the annuity because of

her age. The court did not decide whether the payments were reasonably

necessary for Cassell’s support, believing that it lacked sufficient evidence to




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make that determination.1

       The trustee appealed the bankruptcy court’s order to the district court,

which also concluded that Cassell’s annuity qualified as an “annuity” for the

purposes of the Georgia bankruptcy exemption. The district court agreed with the

bankruptcy court that the annuity payments are on account of Cassell’s age

because her age had motivated her to buy the annuity. The district court affirmed

as to the issues that the bankruptcy court had addressed but remanded the case,

leaving it for the bankruptcy court to decide in the first instance whether the

annuity payments are reasonably necessary for Cassell’s support.

       Instead of waiting to litigate the reasonably necessary issue in the

bankruptcy court, the trustee appealed to this Court, conceding that the annuity

payments are reasonably necessary for Cassell’s support.2 Appellant Br. 10. The

       1
         The bankruptcy court did rule, however, that any annuity payments that might be made
to Cassell’s children (if her death occurred within ten years of the purchase date) were not
exempt; as a result, the court ordered Cassell to irrevocably designate the bankruptcy estate
instead of her children as the residual beneficiary. That ruling is not involved in this appeal.
       2
         Absent that concession, we might lack appellate jurisdiction. In bankruptcy cases, we
have jurisdiction over only a final order of the district court, see 28 U.S.C. § 158(d), which is an
order that leaves only “ministerial” duties for the bankruptcy court, see Jove Eng’g v. I.R.S., 92
F.3d 1539, 1548 (11th Cir. 1996). If the factual record is not fully developed or if there is
“significant judicial activity [for] the bankruptcy court involving considerable discretion,” In re
TCL Investors, 775 F.2d 1516, 1518–19 (11th Cir. 1985), the district court’s order is not final
and we lack jurisdiction, id. at 1519. Because the trustee concedes that the payments are
reasonably necessary for Cassell’s support, the factual record is complete and there is no
“significant activity . . . involving considerable discretion” for the bankruptcy court to undertake.
That makes the district court order final and gives us appellate jurisdiction to review it. See 28

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trustee hangs his appeal on the contentions that Cassell’s annuity is not an

“annuity” within the meaning of the Georgia exemption statute and that, even if it

is, the annuity payments are not made “on account of . . . age.”

                                              II.

       We review de novo the legal determinations of the bankruptcy court and the

district court, In re Garner, 663 F.3d 1218, 1219 (11th Cir. 2011), but we review

only for clear error the bankruptcy court’s factfindings, In re Mitchell, 633 F.3d

1319, 1326 (11th Cir. 2011). The party objecting to an exemption, here the

trustee, bears the burden of showing that the exemption is improper. See Fed. R.

Bankr. P. 4003(c).

       The Bankruptcy Code allows a debtor to exempt certain property from the

bankruptcy estate, see 11 U.S.C. § 522(b)(1), and it lists categories of property

eligible for exemption, see id. § 522(b)(2), (d). Individual states, however, may

opt out of the exemptions provided in the Bankruptcy Code and provide their own

list of exemptions. See id. § 522(b)(2). Georgia is one of the states that has done

that. See Ga. Code Ann. § 44-13-100.

       Cassell contends that her annuity payments are exempt from inclusion in the



U.S.C. § 158(d); In re Porto, 645 F.3d 1294, 1298–99 (11th Cir. 2011); Jove Eng’g, Inc., 92 F.3d
at 1548; In re TCL, 775 F.2d at 1518–19.

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bankruptcy estate under this provision of the Georgia exemption statute:

       (a) . . . [A]ny debtor who is a natural person may exempt . . . for the
       purposes of bankruptcy, the following property:

       ...

       (2) The debtor’s right to receive:

       ...

       (E) A payment under a pension, annuity, or similar plan or contract on
       account of illness, disability, death, age, or length of service, to the
       extent reasonably necessary for the support of the debtor and any
       dependent of the debtor . . . .

Id. § 44-13-100(a)(2)(E). To be exempt under that provision Cassell’s annuity

must meet three requirements. Cf. Rousey v. Jacoway, 544 U.S. 320, 325–26, 125

S.Ct. 1561, 1566 (2005). First, it must be an “annuity” as that term is used in the

Georgia statute. Ga. Code Ann. § 44-13-100(a)(2)(E). Second, the annuity

payments to Cassell must be “on account of . . . age.”3 Id. Third, the payments

must be “reasonably necessary to the support of the debtor.” Id. Because the

trustee concedes that the third requirement is met, we turn to the other two.

                                               A.

       As for the first requirement, neither party points to any decisions of the


       3
          The second requirement actually is that the annuity payments be “on account of illness,
disability, death, age, or length of service,” Ga. Code Ann. § 44-13-100(a)(2)(E), but age is the
only one of those that conceivably fits Cassell’s situation.

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Georgia courts determining exactly what an “annuity” is for purposes of Ga. Code

Ann. § 44-13-100(a)(2)(E), and we have found none. So we look to basic

principles of statutory construction and decisions analyzing analogous

exemptions.

      Statutory construction under Georgia law starts with the familiar rule that

we are required “to construe a statute according to its terms [and] to give words

their plain and ordinary meaning.” Slakman v. Cont’l Cas. Co., 587 S.E.2d 24, 26

(Ga. 2003). The plain meaning of “annuity” is “[a]n obligation to pay a stated

sum, usu[ally] monthly or annually, to a stated recipient.” Black’s Law Dictionary

105 (9th ed. 2009); see also NationsBank of N.C., N.A. v. Variable Annuity Life

Ins. Co., 513 U.S. 251, 255, 115 S.Ct. 810, 812 (1995) (“Annuities are contracts

under which the purchaser makes one or more premium payments to the issuer in

exchange for a series of payments, which continue either for a fixed period or for

the life of the purchaser or a designated beneficiary.”). A “fixed annuity” is “[a]n

annuity that guarantees fixed payments, either for life or for a specified period.”

Black’s Law Dictionary 105; see also id. (defining “annuity” as alternatively

meaning “a right, often acquired under a life-insurance contract, to receive fixed

payments periodically for a specified duration”).

      Other Georgia statutes define “annuity” in a similar way. See, e.g., Ga.

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Code Ann. § 33-28-1(1) (“‘Annuity’ means a contract by which one party in return

for a stipulated payment or payments promises to pay periodic installments for a

stated certain period of time or for the life or lives of the person or persons

specified in the contract.”); id. § 47-2-1(3) (“‘Annuity’ means annual payments for

life derived from the accumulated contributions of a member.”); id. § 47-3-1(3)

(same). And at least one Georgia appellate decision has defined “annuity” the

same way in another context. See Wolfe v. Breman, 26 S.E.2d 633, 637 (Ga. Ct.

App. 1943) (“‘Annuity’ has been defined in general terms as technically a yearly

payment of certain sum or money, granted another in fee for life or years, but in

broader sense as fixed sum granted or bequeathed and payable periodically, but

not necessarily annually, subject to such specific limitations as to duration as

grantor or donor may lawfully impose.”).

      When analyzing the analogous federal exemption statute, 11 U.S.C. §

522(d)(10)(E),4 the United States Supreme Court “look[ed] to the ordinary


      4
          The federal exemption states:

      (d) The following property may be exempted . . . :

      ...

      (10) The debtor’s right to receive—

      ...


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meaning of [the] term[].” Rousey, 544 U.S. at 330, 125 S.Ct. at 1568. It defined

an annuity as “an amount payable yearly or at other regular intervals for a certain

or uncertain period (as for years, for life, or in perpetuity).” Id., 125 S.Ct. at 1569

(alteration and quotation marks omitted). It noted that annuities differ from

pension plans in that “[e]mployers establish and contribute to . . . pension plans . .

. , whereas an individual can establish and contribute to an annuity on terms and

conditions he selects.” Id. at 331, 125 S.Ct. at 1569. And it recognized that

annuities did not “necessarily provide[] retirement income.” Id. Although the

Court in Rousey was interpreting the federal exemption statute instead of the

Georgia one, we may consider its statements on the question of the generally

accepted or plain meaning of the word “annuity.”

       The trustee contends, however, that the word “annuity” in the Georgia


       (E) a payment under a stock bonus, pension, profitsharing, annuity, or similar plan
       or contract on account of illness, disability, death, age, or length of service, to the
       extent reasonably necessary for the support of the debtor and any dependent of the
       debtor, unless—

       (i) such plan or contract was established by or under the auspices of an insider that
       employed the debtor at the time the debtor’s rights under such plan or contract
       arose;

       (ii) such payment is on account of age or length of service; and

       (iii) such plan or contract does not qualify under section 401(a),
       403(a), 403(b), or 408 of the Internal Revenue Code of 1986.

11 U.S.C. § 522(d)(10)(E) (emphasis added).

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exemption statute does not carry its plain meaning. Instead, his position is that to

be an exemptible “annuity” within the meaning of that statute the source of the

funds used to buy the annuity must be employment-related income, salary, or

wages, and not an inheritance. In support of that position, the trustee cites the

legislative history of 11 U.S.C. § 522(d)(10)(E), which is the analogous federal

exemption, and precedent from the United States Supreme Court and other courts

applying the federal exemption or some other state’s exemption. See H.R. Rep.

No. 95-595, at 362 (1977), reprinted in 1978 U.S.C.C.A.N. 5787, 6318

(“Paragraph (10) exempts certain benefits that are akin to future earnings of the

debtor.”); see also Rousey, 544 U.S. at 331–32, 125 S.Ct. at 1569; In re Eilbert,

162 F.3d 523, 526–27 (8th Cir. 1998). The trustee also argues that general

principles of statutory interpretation indicate that we should interpret the word

“annuity” in light of the word “pension.” Doing so, he argues, leads to the

conclusion that the Georgia exemption requires the annuity to be, in his words,

“like a true retirement vehicle” and funded by wages or some other

employment-related income—not funded by an inheritance. See In re Eilbert, 162

F.3d at 526–27 (interpreting “annuity” in the Iowa exemption statute).

      Both the Georgia and federal exemption statutes refer to a “pension,”




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“annuity,” “or similar plan or contract.”5 The Supreme Court held in Rousey that

an individual retirement account is a “similar plan or contract” for purposes of the

federal statute. 544 U.S. at 334–35, 125 S.Ct. at 1571. The Court reasoned that,

like the plans listed in the statute, IRAs “provide a substitute for wages (by wages,

for present purposes, we mean compensation earned as hourly or salary income),

and are not mere savings accounts.” Id. at 329, 125 S.Ct. at 1568. It specifically

noted that “[w]hat all of [the listed] plans have in common is that they provide

income that substitutes for wages,” id. at 331, 125 S.Ct. at 1569, and that “IRA

income substitutes for wages lost upon retirement and distinguish IRAs from

typical savings accounts,” id. at 332, 125 S.Ct. at 1569. The trustee argues that

those statements mean that the source of the funds used to purchase an exemptible

annuity must be wages or other employment-related income and not an

inheritance.

       The trustee also urges us to follow the In re Eilbert decision. The Eighth

Circuit held in that case that an annuity purchased with inherited funds is not a

“pension, annuity, or similar plan or contract” within the meaning of Iowa Code §




       5
        The federal statute, unlike the Georgia statute, also includes in the list with pensions and
annuities “stock bonus” and “profitsharing” plans. 11 U.S.C. § 522 (d)(10)(E); see supra note 4.

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627.6(8)(e) (1998).6 In re Eilbert, 162 F.3d at 527. In doing so, the court noted

that Iowa’s exemption statute was modeled on the federal exemption statute, 11

U.S.C. § 522(d)(10)(E), and that “Congress described that federal exemption as

‘exempt[ing] certain benefits that are akin to future earnings of the debtor.’” Id. at

526 (quoting H.R. Rep. No. 95-595, at 362 (1977), reprinted in 1978

U.S.C.C.A.N. 5787, 6318). Viewing “annuity” as a “purely generic term which

refers to the method of payment and not to the underlying nature of the asset,” the

Eighth Circuit reasoned that the term should be read in light of the other plan type

listed in the statute, which was “pension.” Id. at 526–27. That is how it reached

the conclusion that only annuities that “provide benefits in lieu of earnings after

       6
           The Iowa exemption stated:

       A debtor who is a resident of this state may hold exempt from execution the
       following property:

       ...

       8. The debtor’s rights in:

       ...

       e. A payment or a portion of a payment under a pension, annuity, or similar plan
       or contract on account of illness, disability, death, age, or length of service, unless
       the payment or a portion of the payment results from contributions to the plan or
       contract by the debtor within one year prior to the filing of a bankruptcy petition,
       which contributions are above the normal and customary contributions under the
       plan or contract, in which case the portion of the payment attributable to the
       contributions above the normal and customary rate is not exempt.

Iowa Code § 627.6(8)(e) (1998).

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retirement,” however funded, can be exempted under Iowa Code § 627.6(8)(e). Id.

at 527. Because the annuity payments in that case did not “replace lost income”

and because the annuity was purchased with a single payment of inherited funds

instead of “with contributions over time,” the annuity payments were not “akin to

future earnings.” Id. (quotation marks omitted). In sum, the trustee argues that

Cassell’s annuity is not an exemptible “annuity” because she used inherited funds

and not wages or salary income to purchase it.

      Bankruptcy courts have generally agreed that not every annuity is an

“annuity” for the purposes of the Georgia exemption statute. See, e.g., In re

Cassell, 443 B.R. 200, 204 (Bankr. N.D. Ga. 2010); In re Bramlette, 333 B.R. 911,

920–21 (Bankr. N.D. Ga. 2005); In re Michael, 339 B.R. 798, 802–07 (Bankr.

N.D. Ga. 2005). See generally In re Green, No. 06–14084, 2007 WL 1031677

(Bankr. E.D. Tenn. Apr. 2, 2007) (unpublished) (applying the Georgia exemption).

      Cassell contends, though, that her annuity is an “annuity” within the

meaning of Ga. Code Ann. § 44-13-100, arguing that we should give “annuity” its

plain and ordinary meaning as set out in the Rousey opinion. See 544 U.S. at 330,

125 S.Ct. at 1569. Her fallback position is that if we do look beyond the plain

meaning of “annuity,” we should apply the multifactor test from In re Andersen,

259 B.R. 687, 691–92 (8th Cir. BAP 2001). In that case, the Bankruptcy

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Appellate Panel of the Eighth Circuit laid out six factors to consider when

deciding whether a particular annuity qualifies as an “annuity” under the federal

exemption statute:

      [(1)] Were the payments designed or intended to be a wage
      substitute?

      [(2)] Were the contributions made over time? The longer the period
      of investment, the more likely the investment falls within the ambit of
      the statute and is the result of a long standing retirement strategy, not
      merely a recent change in the nature of the asset.

      [(3)] Do multiple contributors exist? Investments purchased in
      isolation, outside the context of workplace contributions, may be less
      likely to qualify as exempt.

      [(4)] What is the return on investment? An investment which returns
      only the initial contribution with earned interest or income is more
      likely to be a nonexempt investment. In contrast, investments which
      compute payments based upon the participant’s estimated life span,
      but which terminate upon the participant’s death or the actual life
      span, are akin to a retirement investment plan. That is, will the debtor
      enjoy a windfall if she outlives her life expectancy? Is she penalized
      if she dies prematurely?

      [(5)] What control may the debtor exercise over the asset? If the
      debtor has discretion to withdraw from the corpus, then the contract
      most closely resembles a nonexempt investment.

      [(6)] Was the investment a prebankruptcy planning measure? In this
      regard, the court may examine the timing of the purchase of the
      contract in relation to the filing of the bankruptcy case.

In re Andersen, 259 B.R. at 691–92.



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      The trustee argues that the Andersen test conflicts with the analysis used in

Rousey and In re Eilbert. The test does, however, include factors that those two

decisions and others have considered when deciding whether a particular annuity

is an exemptible “annuity” under various statutes. See, e.g., Rousey, 544 U.S. at

329–332, 125 S.Ct. at 1568–1570 (considering whether IRAs provide a substitute

for wages, the first In re Andersen factor); In re Eilbert, 162 F.3d at 527

(considering the first, second, third, and sixth In re Andersen factors); In re

Huebner, 986 F.2d 1222, 1224 (8th Cir. 1993) (considering the debtor’s control

over the corpus, the fifth In re Andersen factor); In re Bramlette, 333 B.R. at 921

(considering all of the In re Andersen factors); In re Michael, 339 B.R. at 804

(considering the first In re Andersen factor).

      Rousey would dictate that we give “annuity” its plain meaning if we were

applying the federal exemption statute, but we are not. We are applying the

Georgia exemption statute. When the Georgia legislature opted out of the federal

statutory list of bankruptcy exemptions and enacted its own, it intended that

Georgia debtors be treated differently from federal debtors in at least some

circumstances. That cautions against assuming that an interpretation of the federal

statute should be followed in a Georgia case, although the caution is lessened in

situations like this one where the relevant statutory language is materially

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identical. We are unsure whether the Georgia Supreme Court would be persuaded

by the Rousey reasoning, by the Eighth Circuit’s In re Eilbert reasoning, by the

Eighth Circuit Bankruptcy Appellate Panel’s In re Andersen reasoning, or by some

other reasoning.

                                        B.

      In addition to disagreeing about the meaning of “annuity,” the parties also

disagree about whether Cassell’s annuity gives her a right to receive payments that

are “on account of . . . age,” which is another requirement for this exemption. Ga.

Code Ann. § 44-13-100(a)(2)(E). Neither party points to any Georgia decisions

that would help us resolve the disagreement, nor have we found any. The

bankruptcy court and the district court concluded that the payments are on account

of age based in part on Cassell’s testimony that she purchased this annuity because

she was 65. Both courts also relied on a federal early-withdrawal tax penalty for

annuities that is similar to the one for IRAs that the Supreme Court found

significant in Rousey.

      The Supreme Court held in Rousey that IRAs do “provide a right to

payment on account of age.” 544 U.S. at 328–29, 125 S.Ct. at 1567–68. It

reasoned that “on account of” means “because of,” which “require[s] a causal

connection between the term that the phrase ‘on account of’ modifies and the

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factor specified in the statute at issue.”7 Id. at 326, 125 S.Ct. at 1566. The Court

concluded that the debtor’s rights to the IRA payments were causally connected to

the debtor’s age because of a 10% tax penalty for withdrawing funds from an IRA

before the age of 59 years and 6 months. Id. at 327–29, 125 S.Ct. at 1566–68; see

also 26 U.S.C. §§ 72(t), 408(a). The early withdrawal penalty “suggests that

Congress designed it to preclude early access to IRAs,” Rousey, 544 U.S. at 327,

125 S.Ct. at 1567, and because the penalty “is removed when the account holder

turns age 59 1/2, the [debtors’] right to the balance of their IRAs is a right to

payment ‘on account of’ age,” id. at 328, 125 S.Ct. at 1567.

       Cassell argues that for the same reason the Supreme Court found IRA

payments to be on account of age, her annuity payments are as well—both types of

payments are tax advantaged. An annuitant is permitted to exclude a portion of

the payments from her gross income each year until she has recovered all of her

investment in the annuity contract. See generally Treas. Reg. §§ 1.72-1 to -11.

At least some annuities are subject to the same early withdrawal penalties as IRAs.

See 26 U.S.C. § 72(q). When she purchased her annuity Cassell had already

passed the age at which the early-withdrawal penalty would have applied, but she


       7
         Georgia case law also suggests that “on account of” and “because of” are synonymous.
See Lunceford v. Peachtree Cas. Ins. Co., 495 S.E.2d 88, 90–91 (Ga. Ct. App. 1997) (“[A]nother
construction could be that the phrase [‘because of’] means ‘by reason of’ or ‘on account of.’”).

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argues that is irrelevant.

       The trustee counters that Cassell’s annuity does not qualify for favorable tax

treatment and insists that the annuity contract itself states that it does not. He

argues that the annuity payments do not qualify for favorable tax treatment under

the Internal Revenue Code because, he believes, sections 401(a), 403(a), 403(b),

and 408 of the Code limit qualifying assets to those purchased with one’s own

earnings. Cassell purchased her annuity with inherited funds instead of earnings.

Because of that difference, her annuity payments are different from the IRA

payments considered in Rousey.8

       Cassell argues, as the bankruptcy court and the district court concluded, that

the annuity payments meet the “on account of age” requirement for exemption in

another way: Cassell purchased the annuity because of her advancing age. The

bankruptcy court drew a distinction between a mandatory and a permissible

inference. It reasoned that Cassell’s age when she purchased the annuity did not

compel a finding that the payments are on account of age, cf. In re Eilbert, 162


       8
         Although we have set out the parties’ positions about whether the annuity payments are
eligible for favorable federal tax treatment based on Cassell’s age, we need not decide that issue,
at least not now. Whether we will ever have to decide it will depend on the answer to our
certified questions. If the Georgia Supreme Court decides that the state exemption issue turns on
the federal tax law issue, we can then decide that federal issue. On the other hand, if the Georgia
Supreme Court decides that the state exemption issue does not turn on the federal tax issue, there
(mercifully) will be no need to decide it.

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F.3d at 528, but that fact did permit the court to make that finding. And the court

made it.

       It may be that payments from all fixed life annuities, such as the one in this

case, should be considered to be made on account of age under the Georgia statute.

Fixed life annuities use the annuitant’s age at the time the annuity payments begin

to calculate the size of the payments,9 and in that way the payments will always be

tied to the annuitant’s age. However, neither the parties nor we have been able to

find any decisions of the Georgia courts addressing whether Cassell’s annuity

payments are on account of age as required by Ga. Code Ann. §

44-13-100(a)(2)(E). And it is unclear to what extent, if any, federal tax treatment

of annuities is relevant to the Georgia exemption statute’s treatment of them. The

intent of Congress is not necessarily the intent of the Georgia legislature. Also

unclear is whether Cassell’s intent in buying the annuity or the manner in which

the payments are calculated results in them being on account of age. Lacking any



       9
         Life annuity payments are based on, among other things, the life expectancy of the
annuitant at the time the payments begin. See Explaining Types Of Fixed Annuities,
Investopedia (Feb. 23, 2011),
http://www.investopedia.com/articles/retirement/05/071205.asp#axzz215PRPKps. An
annuitant’s life expectancy depends in no small part on her age. See U.S. Soc. Sec. Admin.,
Period Life Table, 2007, http://www.ssa.gov/STATS/table4c6.html. Because an older person has
a shorter life expectancy, an annuitant who is older when the annuity payments begin will receive
larger annuity payments. See, e.g., AARP Lifetime Income Plan With 20 Year Guarantee,
AARP, http://www.nylaarp.com/Annuities/20-Year-Guarantee (last visited July 23, 2012).

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guidance from the Georgia courts on these questions, we are reluctant to hazard a

guess.

                                            III.

         Fortunately, guessing is not our only option. When there is substantial

doubt about the correct answer to a dispositive question of state law, a better

option is to certify the question to the state supreme court. See World Harvest

Church, Inc. v. Guideone Mut. Ins. Co., 586 F.3d 950, 960–61 (11th Cir. 2009)

(“[T]he certification procedure [is] a valuable tool for promoting the interests of

cooperative federalism . . . . [that] helps save time, energy, and resources and

produces authoritative answers to novel or unsettled questions of state law.”

(citation and quotation marks omitted)).

         This case presents a significant state law issue that is likely to arise again.

At oral argument, counsel for the trustee stated that a significant number of

bankruptcy debtors are seeking to exempt these types of annuity payments. With

the graying of the population and more Americans shuffling toward retirement,

that number will only increase. A final resolution of how to apply this Georgia

exemption is needed, and only the Georgia Supreme Court can provide one. See

LaFrere v. Quezada, 582 F.3d 1260, 1262 (11th Cir. 2009) (“Because state

supreme courts are the final arbiters of state law, when we write to a state law

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             Case: 11-13115     Date Filed: 08/03/2012    Page: 22 of 23

issue, we write in faint and disappearing ink, and once the state supreme court

speaks the effect of anything we have written vanishes . . . .” (quotation marks

omitted)). Absent certification, the question seems unlikely to reach that court.

So we refrain from writing to this state law issue in our own faint ink and ask for

the help of the one court that can write the answer in bold, black letters.

      We certify the following questions to the Georgia Supreme Court:

      (1) Is a single-premium fixed annuity purchased with inherited funds
      an “annuity” for the purposes of Ga. Code Ann. §
      44-13-100(a)(2)(E)?

      (2) Is a debtor’s right to receive a payment from an annuity “on
      account of . . . age” for the purposes of Ga. Code Ann. §
      44-13-100(a)(2)(E) if the annuity payments are subject to age-based
      federal tax treatment, if the annuitant purchased the annuity because
      of her age, or if the annuity payments are calculated based on the age
      of the annuitant at the time the annuity was purchased?

      Of course, “[o]ur statement of the questions is not designed to limit the

inquiry of the” Georgia Supreme Court. Mosher v. Speedstar Div. of AMCA Int’l,

Inc., 52 F.3d 913, 917 (11th Cir. 1995). Instead, as we have stated before:

      [T]he particular phrasing used in the certified question is not to
      restrict the [Georgia] Supreme Court’s consideration of the problems
      involved and the issues as the Supreme Court perceives them to be in
      its analysis of the record certified in this case. This latitude extends
      to the [Georgia] Supreme Court’s restatement of the issue or issues
      and the manner in which the answers are to be given, whether as a
      comprehensive whole or in subordinate or even contingent parts.



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              Case: 11-13115       Date Filed: 08/03/2012      Page: 23 of 23

Martinez v. Rodriguez, 394 F.2d 156, 159 n.6 (5th Cir. 1968).10 The entire record

on appeal in this case, including copies of the parties’ briefs, is transmitted along

with this certification.

       QUESTIONS CERTIFIED.




       10
         In Bonner v. Prichard, 661 F.2d 1206, 1207 (11th Cir. 1981) (en banc), we adopted as
binding precedent all Fifth Circuit decisions handed down before October 1, 1981.

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