                           NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS                            FILED
                           FOR THE NINTH CIRCUIT                              APR 21 2014

                                                                          MOLLY C. DWYER, CLERK
                                                                            U.S. COURT OF APPEALS

In the Matter of: INDYMAC BANCORP,               No. 12-56218
INC.,
             Debtor,                             D.C. No. 2:12-cv-02967-RGK

FEDERAL DEPOSIT INSURANCE
CORPORATION, in its capacity as                  MEMORANDUM*
Receiver of IndyMac Bank FSB and as
Conservator of IndyMac Federal Bank
FSB,
             Appellant,

  v.

ALFRED H. SIEGEL, solely as Chapter 7
Trustee of the estate of IndyMac,

              Appellee.


                   Appeal from the United States District Court
                      for the Central District of California
                   R. Gary Klausner, District Judge, Presiding

                       Argued and Submitted April 9, 2014
                              Pasadena, California

Before: FERNANDEZ, N.R. SMITH, and MURGUIA, Circuit Judges.



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
      The Federal Deposit Insurance Corporation (“FDIC”), as receiver for the

closed IndyMac Bank F.S.B. (“Bank”), appeals the district and bankruptcy courts’

decisions declaring over $55 million in tax refunds as property of the IndyMac

Bancorp, Inc. (“Bancorp”) estate.

      A bankruptcy “estate is comprised of . . . all legal or equitable interests of

the debtor in property as of the commencement of the case.” 11 U.S.C. § 541(a)(1).

“Property interests are created and defined by state law. Unless some federal

interest requires a different result, there is no reason why such interests should be

analyzed differently simply because an interested party is involved in a bankruptcy

proceeding.” Butner v. United States, 440 U.S. 48, 55 (1979).

      We have previously held, in the context of tax refunds attributable to a

subsidiary (but held by a parent as a result of a decision to file consolidated tax

returns) that “as a matter of state corporation law the parties are free to adjust

among themselves the ultimate tax liability.” W. Dealer Mgmt. v. England (In re

Bob Richards Chrysler-Plymouth Corp.), 473 F.2d 262, 264 (9th Cir. 1973)

[hereinafter Bob Richards]. This may be done through “an explicit agreement,” or

an agreement implied by the parties’ past practices. Id. at 264 & n.4. However,

where “the parties [have] made no agreement concerning the ultimate disposition




                                          -2-
of the tax refund,” the parent holds the tax refunds in trust for the subsidiary. Id. at

265.

       The TSA clearly adjusts the parties’ ultimate tax liability in Sections 2 and 3

of the TSA.1 Section 2 of the TSA describes the process by which the Bank will

pay Bancorp its share of taxes, and Bancorp is obliged to return any excess at year

end to the Bank; Section 3 of the TSA describes the process by which Bancorp will

allocate the tax refunds, if any, attributable to any of the Bank’s current losses used

to compute tax liability for the consolidated group. Therefore, Bob Richards

dictates that we follow California state law in determining whether the tax refunds

are property of Bancorp’s estate.

       The TSA does not establish a principal-agent relationship under California

law, because the Bank does not exercise control over Bancorp’s activities under the

TSA. See Foothill Capital Corp. v. Clare’s Food Mkt., Inc. (In re Coupon Clearing

Serv., Inc.), 113 F.3d 1091, 1099 (9th Cir. 1997) (citing Violette v. Shoup, 20 Cal.

Rptr. 2d 358, 363 (Cal. Ct. App. 1993)). Rather, Section 5 of the TSA gives

Bancorp “sole discretion” to determine the “means and manner,” see Kaplan v.

Coldwell Banker Residential Affiliates, Inc., 69 Cal. Rptr. 2d 640, 642 (Cal. Ct.

       1
        Neither party disputes the lower courts’ conclusions that the TSA is
unambiguous, so we must ascertain the parties’ intent from the TSA alone. See
State v. Cont’l Ins. Co., 281 P.3d 1000, 1004 (Cal. 2012).

                                          -3-
App. 1997), of preparing and filing tax returns, resolving tax disputes, and paying

refunds. Even though Section 5 also appoints Bancorp as the Bank’s “agent and

attorney-in-fact,” this appointment does not give the Bank any control; it cannot be

reconciled with the plenary discretion which the Bank vests in Bancorp through all

other sections of the TSA.

      The TSA does not create a trust relationship. The absence of language

creating a trust relationship is explicitly an indication of a debtor-creditor

relationship in California. See Petherbridge v. Prudential Sav. & Loan Ass’n, 145

Cal. Rptr. 87, 94 (Cal. Ct. App. 1978). Further, the fact that the TSA’s preamble

states that the parties’ intent is to determine the Bank’s tax liability as if it were

filing its own tax returns does not strengthen the FDIC’s argument. See id. (A

debtor-creditor relationship may exist “even though the payee may be contractually

obligated to pay an equal amount to a third person.”). Indeed, Bancorp is not

prohibited from using taxes paid or tax refunds as its own or commingling funds

paid to it by the Bank or received from taxation authorities. See id. The Bank also

does not bear the risk of loss. See id. Therefore, the district and bankruptcy courts

were correct to conclude that tax refunds are property of Bancorp’s estate. See id.




                                           -4-
      The FDIC’s claim that recognizing a debtor-creditor relationship here would

violate federal banking laws is unavailing. A run-of-the-mill contract claim is not a

“covered transaction” under the federal banking laws cited by the FDIC. See 12

U.S.C. § 371c(b)(7) (defining “covered transaction”).

      Finally, we need not address the Eleventh Circuit’s recent decision in FDIC

v. Zucker (In re NetBank, Inc.), 729 F.3d 1344 (11th Cir. 2013), because it

involved a tax sharing agreement that explicitly incorporated the Interagency

Statement on Income Tax Allocation in Holding Company Structure (which the

TSA in this case did not)2 and involved the application of Georgia, not California,

state law.

      AFFIRMED.




      2
       We reject the FDIC’s contention that the reference to applicable “rules” in
Section 10 of the TSA incorporated this specific policy.

                                         -5-
