      RECOMMENDED FOR FULL-TEXT PUBLICATION
           Pursuant to Sixth Circuit Rule 206            2       In re Behlke                                No. 02-4306
   ELECTRONIC CITATION: 2004 FED App. 0053P (6th Cir.)
               File Name: 04a0053p.06                        Before: BOGGS, Chief Circuit Judge; GUY, Circuit
                                                                      Judge; HOOD, District Judge.*
UNITED STATES COURT OF APPEALS                                                  _________________
             FOR THE SIXTH CIRCUIT                                                 COUNSEL
               _________________
                                                         ARGUED: Stephen D. Hobt, Cleveland, Ohio, for
In re: WILLIAM M. BEHLKE          X                      Appellants. P. Matthew Sutko, DEPARTMENT OF
                                   -                     JUSTICE, Washington, D.C., for Appellee. ON BRIEF:
and DINA E. BEHLKE ,                                     Stephen D. Hobt, Cleveland, Ohio, for Appellants.
                     Debtors, -                          P. Matthew Sutko, DEPARTMENT OF JUSTICE,
                                   -  No. 02-4306
                                   -                     Washington, D.C., for Appellee.
_______________                     >
                                   ,                                            _________________
                                   -
WILLIAM M. BEHLKE and              -                                                OPINION
DINA E. BEHLKE ,                   -                                            _________________
                                   -
                   Appellants, -                           RALPH B. GUY, JR., Circuit Judge. Debtors, William M.
                                   -                     and Dina E. Behlke, appeal from the decision of the
                                   -                     Bankruptcy Appellate Panel (BAP) affirming the bankruptcy
           v.                      -                     court’s order granting the Trustee’s motion to dismiss this
                                   -                     voluntary Chapter 7 bankruptcy petition for “substantial
SAUL EISEN, United States          -                     abuse” under 11 U.S.C. § 707(b). Section 707(b) provides
Trustee,                           -                     that the bankruptcy court, on its own motion or the motion of
                     Appellee. -                         the United States Trustee, “may dismiss a case filed by an
                                 N                       individual debtor under this chapter whose debts are primarily
     Appeal from the United States Bankruptcy Court      consumer debts if it finds that the granting of relief would be
       for the Northern District of Ohio at Akron.       a substantial abuse of the provisions of this chapter. There
No. 01-53608—Marilyn Shea-Stonum, Bankruptcy Judge.      shall be a presumption in favor of granting the relief
                                                         requested by the debtor.”
              Argued: January 28, 2004                     The debtors argue that the bankruptcy court erred in
                                                         deciding to include 401K contributions as “disposable
        Decided and Filed: February 20, 2004


                                                             *
                                                             The Honorable Denise Page Hood, United States District
                                                         Judge for the Eastern District of Michigan, sitting by designation.

                           1
No. 02-4306                                 In re Behlke       3   4        In re Behlke                                  No. 02-4306

income” for purposes of determining the debtors’ ability to                  license to practice law in Ohio and then searching
pay and in concluding that there was substantial abuse                       for employment.
warranting dismissal under § 707(b). The debtors also argue
that the BAP incorrectly applied an abuse of discretion                4.    In February 1997, Mr. Behlke obtained employment
standard in reviewing the bankruptcy court’s decision. After                 with Rubbermaid in its Office of Corporate Counsel.
a review of the record and the applicable law, we affirm the
bankruptcy court’s decision.                                           5.    The dissolution of the marriage between William
                                                                             and Karen Behlke became final on April 8, 1998.
                               I.                                            William and Karen Behlke had one child from their
                                                                             marriage whose custody they now share. William
  Debtors filed a voluntary petition in bankruptcy under                     Behlke pays child support of $653.00 per month.
Chapter 7. The Trustee filed a motion to dismiss the case
under § 707(b), arguing that to grant the debtors a Chapter 7          6.    In March 1999, Rubbermaid merged with Newell
discharge in this “no asset” case would constitute a                         Corporation to form Newell Rubbermaid, Inc.
substantial abuse because the debtors have disposable income                 Seven attorney’s jobs at Rubbermaid were
with which to pay their creditors. The parties stipulated to the             eliminated leaving William Behlke as the only
underlying facts at the time of the hearing on the motion. On                attorney in Rubbermaid’s Office of Corporate
April 4, 2002, the bankruptcy court issued its decision setting              Counsel. Newell retained its staff of four in-house
forth the stipulated facts, the applicable law, and the reasons              attorneys in its offices in Freeport, Illinois, including
for finding that the Trustee met its burden of demonstrating                 the general counsel for Newell Rubbermaid, Inc.
that “these debtors are not ‘needy’ and that granting them a                 Mr. Behlke’s employment at Newell Rubbermaid
Chapter 7 discharge would be a ‘substantial abuse’ of the                    appears currently steady, though the possible early
bankruptcy system.”                                                          retirement of general counsel for Newell could
                                                                             signal an attempt to consolidate the office of general
  There is no dispute concerning the stipulated facts, which                 counsel at Newell.
the bankruptcy court set forth as follows:
                                                                       7.    In January 1999, Dina Behlke (then Dina
  1.   In December 1995, William Behlke was about to                         Christopher) left her employment as a paralegal and
       become a partner in a large law firm in California at                 began Mobile P.I. Mobile P.I. is a business which is
       which he had been practicing for six years.                           employed (now exclusively) by the law firm of
                                                                             Friedman, Domiano & Smith to go to the homes of
  2.   Mr. Behlke left California and followed his then                      their various potential personal injury clients
       wife (now his ex-wife), Karen, to Ohio in an effort                   throughout northern Ohio and obtain the client’s
       to save his marriage.                                                 medical releases and signatures upon retainer
                                                                             agreements. If Mrs. Behlke obtains the requested
  3.   Because he moved to Ohio, Mr. Behlke lost his                         signatures, Mobile P.I. is paid a flat fee for
       position in California. Mr. Behlke spent the next                     Mrs. Behlke’s services. If not, Mobile P.I. receives
       13½ months out of work, first working to obtain a                     no compensation. Mobile P.I. is not reimbursed for
                                                                             Mrs. Behlke’s mileage or expenses. During the
No. 02-4306                               In re Behlke        5   6      In re Behlke                                No. 02-4306

      years 2000 and 2001, Ms. Behlke traveled                        14. Debtors’ gross income for 1999 was $93,116.00 and
      throughout Medina, Cuyahoga, Summit, Stark,                         their gross income for 2000 was $93,036.00.
      Trumbull, Portage, Mahoning, Wayne, Carroll,
      Holmes, Geauga, Columbiana, Tuscarawas, Ashland                 15. For tax year 2000, debtors received an income tax
      and Richland counties for work on behalf of Mobile                  refund of $2,313.00.
      P.I.
                                                                      16. Debtors are eligible for relief under chapter 13 of the
 8.   William and Dina Behlke were married on                             Bankruptcy Code.
      December 21, 1999.
                                                                  There was no dispute that the debts in this case were primarily
 9.   On September 12, 2001, Mr. and Mrs. Behlke                  unsecured consumer debts.
      initiated this joint, voluntary chapter 7 bankruptcy.
      At the time of filing, the Behlkes owed a total of            As the bankruptcy court observed, this court has
      $163,944.00 in unsecured nonpriority debt which is          determined that substantial abuse can be predicated on a
      “consumer” in nature. Of that amount, $30,140.00            showing of either a lack of honesty or a want of need. In re
      is for a student loan debt owed by William Behlke.          Krohn, 886 F.2d 123, 126 (6th Cir. 1989). The Trustee did
                                                                  not rely on a lack of honesty, but maintained that the debtors
 10. The remaining $133,804.00 of unsecured                       were not “needy.” Examining this question, the bankruptcy
     nonpriority debt that was owed at the time of the            court found that the voluntary 401K contributions should be
     bankruptcy filing is from various credit card                included in disposable income; that, including those
     accounts of both William and Dina Behlke.                    contributions, debtors had an ability to pay out of future
                                                                  income; and that, taken with the other Krohn factors,
 11. According to the debtors’ records, on December 31,           discharge in this case would be a substantial abuse of the
     1998, debtors owed between them a total of                   bankruptcy system. The BAP affirmed on October 10, 2002,
     $60,211.80 in credit card debt, which debt was               and this appeal followed.
     mostly incurred between 1996 and early 1998 and
     primarily owed by William Behlke.                On                                          II.
     December 31, 1999, debtors’ credit card debt totaled
     $100,353.00. On December 31, 2000, debtors owed              A. Standard of Review
     a total of $124,437.72 in credit card debt.
                                                                     “We independently review the decision of the bankruptcy
 12. Debtors’ net monthly income totals $4,923.00 and             court that comes to us by way of appeal from a Bankruptcy
     their net monthly expenses total $4,749.00.                  Appellate Panel.” Nardei v. Maughan (In re Maughan), 340
                                                                  F.3d 337, 341 (6th Cir. 2003). The bankruptcy court’s
 13. Debtors’ Schedule I – Current Income of Individual           findings of fact are reviewed for clear error, while its
     Debtor(s) shows a voluntary monthly contribution of          conclusions of law are reviewed de novo. Nicholson v.
     $460.00 to William Behlke’s employer sponsored               Isaacman (In re Isaacman), 26 F.3d 629, 631 (6th Cir. 1994);
     401K plan.                                                   Rembert v. AT&T Universal Card Servs. (In re Rembert), 141
                                                                  F.3d 277, 280 (6th Cir. 1998). Mixed questions are to be
No. 02-4306                                 In re Behlke      7    8      In re Behlke                                 No. 02-4306

separated into their component parts and reviewed under the        bankruptcy courts to deal equitably with such debtors). In
appropriate standard. Mayor of Baltimore v. W. Va. (In re          addition, both § 707(a) and § 707(b) provide that the
Eagle-Picher Indus., Inc.), 285 F.3d 522, 527 (6th Cir.), cert.    bankruptcy court “may” dismiss and this permissive language
denied, 537 U.S. 880 (2002). “Finally, the bankruptcy court’s      leads to the inevitable conclusion that the decision whether to
equitable determinations are reviewed for an abuse of              dismiss either “for cause” or “substantial abuse” is
discretion.” Id. (citations omitted).                              discretionary. As a result, we conclude that the ultimate
                                                                   question of whether to dismiss for substantial abuse under
  Debtors contend that the BAP erred in applying an abuse of       § 707(b) is reviewed for abuse of discretion. See also AMC
discretion standard to the ultimate question of whether there      Mortgage Co. v. Tenn. Dept. of Revenue (In re AMC
was substantial abuse warranting dismissal, without resolving      Mortgage), 213 F.3d 917, 920 (6th Cir. 2000) (dismissal for
the question of whether the issue should be reviewed de novo       cause under 11 U.S.C. § 1112(b) is reviewed for abuse of
or for an abuse of discretion. While it appears that the BAP       discretion).
actually concluded that it would affirm under either standard,
ours is an independent review of the bankruptcy court’s            B. Dismissal under § 707(b)
decision.
                                                                     Congress chose not to define the term “substantial abuse,”
   Several circuits have stated, albeit without discussion or      leaving it to the courts to decide how it should be determined.
analysis, that whether the facts as found by the bankruptcy        Although a number of circuits have addressed this question,
court constitute substantial abuse is a question of law that is    this court is bound by the approach set forth in Krohn, where
to be reviewed de novo. See Stewart v. United States Trustee       we explained that:
(In re Stewart), 175 F.3d 796, 803 (10th Cir. 1999); Kornfield
v. Schwartz (In re Kornfield), 164 F.3d 778, 783 (2d Cir.                 Those courts which have reviewed the legislative
1999); First USA v. Lamanna (In re Lamanna), 153 F.3d 1,               history, have generally concluded that, in seeking to curb
3 (1st Cir. 1998); Green v. Staples (In re Green), 934 F.2d            “substantial abuse,” Congress meant to deny Chapter 7
568, 570 (4th Cir. 1991). On the other hand, the Eighth                relief to the dishonest or non-needy debtor. See [In re]
Circuit BAP has held that dismissals for substantial abuse are         Walton, 866 F.2d [981, 983 (8th Cir. 1989).] In
to be reviewed for abuse of discretion. In re Nelson, 223 B.R.         determining whether to apply § 707(b) to an individual
349, 352 (8th Cir. BAP 1998).                                          debtor, then, a court should ascertain from the totality of
                                                                       the circumstances whether he is merely seeking an
   While this court has not specifically considered the                advantage over his creditors, or instead is “honest,” in the
question of the appropriate standard for reviewing dismissals          sense that his relationship with his creditors has been
under § 707(b), we have concluded that a decision to dismiss           marked by essentially honorable and undeceptive
“for cause” under § 707(a) will be reversed only for an abuse          dealings, and whether he is “needy” in the sense that his
of discretion because it is an equitable determination. Indus.         financial predicament warrants the discharge of his debts
Ins. Servs., Inc. v. Zick (In re Zick), 931 F.2d 1124, 1126 (6th       in exchange for liquidation of his assets. See 4 Collier
Cir. 1991). In discussing the purposes of § 707(b), the court          [on Bankruptcy] ¶ 707.07, at 707-20 [(15th ed. 1989)].
in Krohn indicated that dismissal for substantial abuse is also        Substantial abuse can be predicated upon either lack of
an equitable determination. Krohn, 886 F.2d at 126 (§ 707(b)           honesty or want of need.
gives discretion to dismiss for abusive filing and allows
No. 02-4306                                 In re Behlke      9   10       In re Behlke                              No. 02-4306

Krohn, 886 F.2d at 126. After identifying some factors            bankruptcy court committed no legal error in finding
relevant to ascertaining a debtor’s honesty, the Krohn court      substantial abuse absent a finding of “dishonesty.”
went on to explain the factors relevant to determining whether
a debtor is “needy”; first among them being the debtor’s            1.      Ability to Pay
“ability to repay his debts out of future earnings.” Id.
Significantly, the court expressly held that this factor “alone     One way courts determine a debtor’s ability to pay is to
may be sufficient to warrant dismissal.” Id. The court            evaluate whether there would be sufficient disposable income
explained this and other factors as follows:                      to fund a Chapter 13 plan. See Stuart v. Koch (In re Koch),
                                                                  109 F.3d 1285, 1288 (8th Cir. 1997); Zolg v. Kelly (In re
  For example, a court would not be justified in concluding       Kelly), 841 F.2d 908, 914 (9th Cir. 1988). “[D]isposable
  that a debtor is needy and worthy of discharge, where his       income” is income “received by the debtor and which is not
  disposable income permits liquidation of his consumer           reasonably necessary to be expended . . . for the maintenance
  debts with relative ease. Other factors relevant to need        or support of the debtor or a dependent of the debtor.” 11
  include whether the debtor enjoys a stable source of            U.S.C. § 1325(b)(2). The debtors do not contest any of the
  future income, whether he is eligible for adjustment of         bankruptcy court’s factual findings underlying the conclusion
  his debts through Chapter 13 of the Bankruptcy Code,            that, without including the 401K contribution, their monthly
  whether there are state remedies with the potential to          income exceeded their monthly expenses by $174.00.1
  ease his financial predicament, the degree of relief            Rather, they claim it was error for the bankruptcy court to
  obtainable through private negotiations, and whether his        include Mr. Behlke’s voluntary 401K contribution of $460.00
  expenses can be reduced significantly without depriving         per month as disposable income for purposes of determining
  him of adequate food, clothing, shelter and other               their ability to pay their creditors out of future income.
  necessities.
                                                                     Our starting point must be this court’s holding in
Id.                                                               Harshbarger v. Pees (In re Harshbarger), 66 F.3d 775, 777-
                                                                  78 (6th Cir. 1995), that the debtor’s voluntary repayment of
  Debtors argue, in disregard of Krohn, that it was error for     loans to her ERISA-qualified profit sharing account should be
the bankruptcy court to find substantial abuse in the absence     treated as part of the disposable income in the bankruptcy
of evidence of unfair dealing or bad faith on their part.         estate.2 Affirming the rejection of a Chapter 13 plan, the
Debtors rely on In re Browne, 253 B.R. 854, 856 (Bankr.           court held that: “This expenditure may represent prudent
N.D. Ohio 2000), for the proposition that an ability to pay,      financial planning, but it is not necessary for the ‘maintenance
without more, is an insufficient basis to dismiss for
substantial abuse. Not only does Browne inaccurately cite
Krohn for this proposition, but Krohn clearly holds that the
ability to pay may be but is not necessarily sufficient to             1
warrant dismissal for substantial abuse. See In re Austin, 299         Debtors’ monthly expenses include a child support payment
B.R. 482, 486 (Bankr. E.D. Tenn. 2003) (discussing Browne).       of $635.00 for Mr. Behlke’s minor child.
Although debtors rely on decisions from other circuits to the          2
contrary, we are bound by Krohn. Salmi v. Sec’y of Health &            The court noted that the debtor’s beneficial interest in the
Human Servs., 774 F.2d 685, 689 (6th Cir. 1985). The              ERISA account was exempted from the bankruptcy estate. Id. at
                                                                  777.
No. 02-4306                                 In re Behlke    11    12   In re Behlke                                  No. 02-4306

or support’ of the debtors.” Id at 777. The court explained its   disposable income where the debtor is near the age of
rationale as follows:                                             retirement and has no other retirement savings plan).
     It is unfortunate that Mrs. Harshbarger’s expected             Without arguing that voluntary retirement contributions can
  pension benefits may be diminished by a future setoff           never be disposable income, debtors claim it was error for the
  against the unpaid portion of her obligation to the             bankruptcy court to find that the 401K contributions in this
  ERISA-qualified account. However, this consideration            case were not reasonably necessary for the maintenance and
  does not alter the result under the bankruptcy laws. In         support of the debtors or their dependent. In particular, they
  these circumstances, “it would be unfair to the creditors       emphasize that they had only $48,200 in retirement savings
  to allow the Debtors in the present case to commit part of      between them at the time of the bankruptcy filing.
  their earnings to the payment of their own retirement
  fund while at the same time paying their creditors less           After noting that the debtors had excess income aside from
  than a 100% dividend.” In re Jones, 138 B.R. 536, 539           the 401K contributions, the bankruptcy court made the
  (Bankr. S.D. Ohio 1991).                                        following findings:

Id. at 778. We agree with those courts that have held this          Although saving for retirement is, no doubt, important to
reasoning is equally applicable to a debtor’s voluntary             these debtors, their Schedule B – Personal Property
contributions to a 401K or other retirement plan. See, e.g.,        reflects accumulated retirement savings of $48,200. In
Anes v. Dehart (In re Anes), 195 F.3d 177, 180-81 (3d Cir.          addition to these retirement savings, debtors’ Schedule B
1999) (loan repayments are in effect contributions to the           also lists stock options on 1,025 shares of Newell
debtor’s retirement account and are disposable income for           Rubbermaid stock. Although these stock options did not
purposes of a Chapter 13 plan). In fact, a number of                appear to have any immediate value based upon the stock
bankruptcy courts have included voluntary 401K                      trading price on the date debtors filed their petition, there
contributions as disposable income in considering whether           has been no evidence to indicate that such options are not
dismissal was warranted for substantial abuse under § 707(b).       now or could not become valuable in the future. These
See Austin, 299 B.R. at 486-87 (voluntary retirement                debtors also own the home which serves as their primary
contributions constitute disposable income in considering           residence. On their Schedule A – Real Property, debtors
dismissal under § 707b) (citing cases); In re Keating, 298          listed the property as having a current market value of
B.R. 104, 110-11 (Bankr. E.D. Mich. 2003) (“There is an             $135,000.00 with a first mortgage of $124,432.00 and
inherent unfairness in permitting a debtor to pay himself by        there is no indication in debtors’ Schedules that they are
funding his own retirement account while paying creditors           behind on any mortgage payments. Moreover, there has
only a fraction of their just claims.”); In re Heffernan, 242       been nothing to indicate that the value of this real
B.R. 812, 818 (Bankr. D. Conn. 1999) (overwhelming                  property will not appreciate.
consensus among bankruptcy courts that debtor’s voluntary
payment into pension, savings, or 401K-type plan is not a         (Footnote omitted.) Thus, applying Harshbarger and finding
reasonably necessary expenditure) (citing cases). But see In      that the debtors had accumulated retirement savings as well
re Mills, 246 B.R. 395, 401-02 (Bankr. S.D. Cal. 2000)            as other personal and real property of potentially significant
(allowing a modest contribution to 401K to be excluded from       future value, the bankruptcy court found that the monthly
                                                                  401K contribution, which is equal to 6% of Mr. Behlke’s
No. 02-4306                                  In re Behlke     13    14   In re Behlke                               No. 02-4306

gross income, should be included as disposable income for            analysis and finding because, if it did, debtors could be
purposes of determining the debtors’ ability to pay their            encouraged to amass debt prior to filing chapter 7.
creditors out of future earnings.
                                                                       In addition to evaluating ability to pay debts out of
  We agree completely and find no clear error in the                 future income, other factors to be taken into account to
bankruptcy court’s finding that the 401K contribution in this        determine if debtors are “needy” include whether debtors
case was not reasonably necessary to the maintenance and             enjoy a stable source of income, whether debtors’
support of the debtors or their dependent and that it should be      expenses can be reduced significantly without depriving
included as disposable income.                                       them of adequate food, clothing, shelter and other
                                                                     necessities and whether debtors’ financial situation is the
  2.   Substantial Abuse                                             result of an unforseen catastrophic event. In re Krohn,
                                                                     886 F.2d at 126-28. Mr. Behlke has been employed in
  Turning to the ultimate question of whether there was              the same position since February 1997. Although
substantial abuse warranting dismissal under § 707(b), it is         debtors allude to a possibility that Mr. Behlke’s
apparent from even a cursory examination of the bankruptcy           employment could be eliminated through consolidation
court’s decision that its finding of substantial abuse rested not    of Newell Rubbermaid’s office of general counsel, the
only on the finding that the debtors had an ability to pay their     only evidence actually before the Court demonstrates that
creditors out of future income to the tune of $634.00 per            Mr. Behlke’s employment is secure. As for Mrs. Behlke,
month, but also on consideration of the other factors relevant       the evidence before the Court demonstrates that her
to determining whether the debtors were “needy.” The                 income (although minimal) has, over the past 3 years,
bankruptcy court explained as follows:                               been increasing. This increase, combined with the fact
                                                                     that Ms. Behlke possesses paralegal skills which could
     If debtors’ income and expenses remain relatively the           enable her to obtain other more highly paying
  same (and there was no argument or evidence from either            employment, leads the Court to find that these debtors do
  party to suggest otherwise) and if Mr. Behlke’s 401K               enjoy a stable source of income.
  contribution were added to debtors’ monthly income and
  then applied toward the payment of debts through a                    The United States Trustee does not allege that these
  chapter 13 plan, debtors could pay approximately 14% of            debtors[’] expenses could be reduced and, upon review
  their debts over 36 months. If payments were extended              of debtors’ Schedule J – Current Expenditures of
  over a 60 month period, debtors could pay approximately            Individual Debtor(s), it does not appear that the Behlkes’
  23% of their debts. See 11 U.S.C. § 1322(d) and                    lifestyle is extravagant. However, it also does not appear
  § 1325(b)(1)(B). . . . The Court further finds that debtors’       that their lifestyle is an austere one as their monthly
  ability to pay at least a 14% dividend to their creditors          expenses include $1,121.00 for a mortgage payment,
  without having to alter their budgeted expenses (other             $500.00 for food, $150.00 for recreation and $666.84 for
  than a contribution to a retirement savings plan) lends to         payments on two automobiles. Moreover, there is no
  a finding that these debtors can repay debts out of future         evidence before the Court to indicate that the Behlke[s’]
  earnings through the funding of a chapter 13 plan. That            bankruptcy filing was precipitated upon a catastrophic or
  these debtors may only be able to pay their creditors 14           an unforeseen event. Cf. In re Fessler, 168 B.R. 622
  cents on the dollar does not act to change the Court’s             (Bankr. N.D. Ohio 1994) (loss of employment of both
No. 02-4306                                    In re Behlke     15    16       In re Behlke                                  No. 02-4306

  breadwinners in household constitutes calamity); In re              (Bankr. N.D. Ohio 1994) (11%); In re Beles, 135 B.R. 286
  Shepherd, 147 B.R. 422 (Bankr. N.D. Ohio 1992) (debtor              (Bankr. S.D. Ohio 1991) (35%); In re Butts, 148 B.R. 878
  forced into bankruptcy due, in part, to psychological               (Bankr. N.D. Ind. 1992) (42%). Ability to pay alone may be
  trauma of catastrophic events including (1) charge of               but is not necessarily sufficient to warrant dismissal. As the
  rape against debtor’s live-in companion, (2) murder of              Trustee observes, other factors weighed against dismissal in
  debtor’s brother[,] (3) conviction of murder against                Beles and Butts despite an ability to pay.
  debtor’s other brother and (4) death of debtor’s close
  personal friend). Instead, it appears that Mr. and Mrs.               Reviewing for abuse of discretion, we may reverse only if
  Behlke filed for bankruptcy to escape the burden of                 we are left with a definite and firm conviction that the
  exorbitant but self-imposed credit card debt.                       bankruptcy court committed a clear error in judgment. Eagle-
                                                                      Picher Indus., 285 F.3d at 529. “‘The question is not how the
(Footnote omitted.)                                                   reviewing court would have ruled, but rather whether a
                                                                      reasonable person could agree with the bankruptcy court’s
  Debtors do not challenge the factual findings reflected in          decision; if reasonable persons could differ as to the issue,
the above analysis, but seem to argue that there was no               then there is no abuse of discretion.’” Id. (citation omitted).
substantial abuse because they only have an ability to repay          When the debtors’ ability to pay is taken with the other
14% over three years (for a total of $22,824) or 23% over five        relevant factors, we can find no abuse of discretion in the
years (for a total of $38,040). As the debtors themselves             determination that the debtors were not “needy” and the case
point out, however, there is no “cutoff” or bright-line test          should be dismissed for substantial abuse.
under which an ability to pay a certain percentage over a
three-to-five year period would or would not be substantial             AFFIRMED.4
abuse regardless of other circumstances.3 The fact that
bankruptcy courts have found no substantial abuse in cases
where there was an ability to repay only 5% or 11%, as well
as cases in which there was an ability to repay as much as
35% or 42% does not undermine the bankruptcy court’s                       4
                                                                            The United States Trustee argues that the debtors’ ability to
determination in this case. See In re Hampton, 147 B.R. 130           pay is even higher than the bankruptcy court found because the
(Bankr. E.D. Ky. 1992) (5%); In re Martens, 171 B.R. 43               debtors’ tax return of $2,313 for the year 2000 represented over-
                                                                      withholding and should have been divided by 12 and an additional
                                                                      $192.75 included as disposable income. See, e.g., In re Hutton,
    3
                                                                      158 B.R. 648, 649 (Bankr. E.D. Ky. 1993) (monthly net pay was
     Debtors trace the legislative history of several bills that      arguably more because of over-withholding for income tax).
preceded the adoption of § 707(b), including a Senate Judiciary       Including this amount and similar expected tax refunds would have
Committee report on a failed bill that would have adopted a “future   increased the percentage the debtors’ could repay to 18% over
income test” for substantial abuse. The report explains that, under   three years (for a total of $29,763) or 30% over five years (for a
such a test, if a debtor could pay no more than 25% of the debts      total of $49,605). Because we are satisfied that the bankruptcy
over a three-to-five year period, the debtor would not have           court did not abuse its discretion in dismissing the debtors’
substantial debt paying ability and would be eligible for Chapter     Chapter 7 case for substantial abuse, we need not decide whether
7 relief. However, debtors concede that such a test was not           there is sufficient basis in this record to find it was clear error to
adopted in § 707(b).                                                  have disregarded the debtors’ income tax refund in this case.
