                                                                            FILED
                                                                             NOV 7 2019
                           NOT FOR PUBLICATION
                                                                        SUSAN M. SPRAUL, CLERK
                                                                           U.S. BKCY. APP. PANEL
                                                                           OF THE NINTH CIRCUIT



             UNITED STATES BANKRUPTCY APPELLATE PANEL
                       OF THE NINTH CIRCUIT

In re:                                               BAP No. EC-19-1047-GFB

LEONARD E. HUTCHINSON and                            Bk. No. 1:17-bk-12272
SONYA C. HUTCHINSON,
                                                     Adv. No. 1:17-ap-1076
                    Debtors.

LEONARD E. HUTCHINSON;
SONYA C. HUTCHINSON,

                    Appellants,

v.                                                    MEMORANDUM*

UNITED STATES OF AMERICA;
JAMES SALVEN, Chapter 7 Trustee,

                    Appellees.

                   Argued and Submitted on October 25, 2019
                         at San Francisco, California

                              Filed – November 7, 2019



         *
        This disposition is not appropriate for publication. Although it may be cited for
whatever persuasive value it may have, see Fed. R. App. P. 32.1, it has no precedential
value. See 9th Cir. BAP Rule 8024-1.
                Appeal from the United States Bankruptcy Court
                     for the Eastern District of California

          Honorable Frederick E. Clement, Bankruptcy Judge, Presiding

Appearances:        David R. Jenkins argued for Appellants; Jonathan M.
                    Hauck argued for Appellee United States; Russell W.
                    Reynolds of Coleman & Horowitt, LLP for Appellee
                    James E. Salven, Chapter 7 Trustee on the brief.



Before: GAN, FARIS, and BRAND, Bankruptcy Judges.

                                 INTRODUCTION

      Debtors Leonard and Sonya Hutchinson (“Debtors”) appeal from an

order dismissing their adversary proceeding under Rule 7012(b)1 filed

against the United States Department of the Treasury, Internal Revenue

Service (“IRS”) and the Chapter 7 Trustee, James E. Salven (“Trustee”).

Debtors sought to avoid the penalty portion of five IRS tax liens pursuant

to § 724(a) and to preserve the liens under § 522(I) to the extent of their

homestead exemption.

      The Trustee filed a crossclaim seeking to avoid the liens for the

benefit of the estate and ultimately entered into a stipulated judgment with



      1
        Unless specified otherwise, all chapter and section references are to the
Bankruptcy Code, 11 U.S.C. §§ 101-1532, all “Rule” references are to the Federal Rules
of Bankruptcy Procedure, and all “Civil Rule” references are to the Federal Rules of
Civil Procedure.

                                           2
the IRS to avoid the penalty portions of two liens and preserve them for the

estate.

      Ninth Circuit precedent clearly bars Debtors from using § 522(h) to

avoid the penalty portion of tax liens, and Debtors can only preserve liens

under § 522(I) which were avoided under § 522(f) or (h). Debtors cannot

exempt property under § 522(g) where the Trustee avoids liens securing tax

penalties. Therefore, we AFFIRM.

                                   FACTS

      On June 11, 2017, Debtors filed a chapter 7 petition and scheduled

assets including their residence, which they valued at approximately

$184,994. Debtors’ residence was encumbered by a first position deed of

trust in the amount of $86,848. They claimed a homestead exemption of

$100,000 on the property.

      On three separate dates prior to the petition date, the IRS properly

filed notices of tax lien against Debtors’ property, including their residence.

The IRS filed a proof of claim indicating that Debtors owed taxes and

penalties in the total amount of $591,383.62, which consisted of a secured

claim of $412,067.44 and an unsecured claim of $179,316.18. The portion of

the secured claim attributable to penalties was $162,690.85.

      On August 8, 2017, nineteen days after the meeting of creditors and

eleven days after the Trustee filed his application to employ counsel,

Debtors filed their adversary complaint to avoid the penalty portion of the


                                       3
tax liens. Debtors sought to avoid the liens pursuant to § 522(h), and to

preserve the liens for Debtors’ benefit under § 522(I) to the lesser of their

homestead exemption or the amount of the penalties.

      On September 7, 2017, the Trustee filed an answer and crossclaim

asserting the estate’s interest in avoiding the penalty portion of the liens

and seeking to preserve the liens for the benefit of the estate. The Trustee

noted that at the time Debtors filed their complaint, the IRS had yet to file

its proof of claim. The Trustee stated that he had discussed the potential

lien avoidance with Debtors’ counsel but had not decided that the estate

would forego the claim.

      The IRS filed a motion to dismiss asserting that the Ninth Circuit’s

holding in DeMarah v. United States (In re DeMarah), 62 F.3d 1248 (9th Cir.

1995) precluded Debtors from avoiding the tax liens under § 522(h) as a

matter of law, and pursuant to § 522(c)(2)(B), the tax liens would take

priority over Debtors’ homestead exemption.

      Debtors acknowledged that the Trustee’s crossclaim took precedence

over their complaint but argued that they maintained a right to preserve

the lien for their benefit under § 522(i)(2) if the Trustee was successful in

avoiding the penalty portion of the liens. Debtors argued that because the

Ninth Circuit did not explicitly take into account the effect of § 522(i)(2) in

ruling that debtors cannot avoid tax liens under § 522(h), the holding of In

re DeMarah is dicta.


                                       4
      The bankruptcy court disagreed and dismissed Debtors’ complaint

with prejudice. The bankruptcy court followed the holding of In re

DeMarah in ruling that § 522(c)(2)(B) precludes chapter 7 debtors from

avoiding tax liens on otherwise exempt property even if the liens could be

avoided by the Trustee under § 724(a). The bankruptcy court further held

that because “§ 522(c)(2)(B) precludes the debtors from ever invoking

§ 522(h) to avoid a tax lien securing penalties . . . [i]t follows that the

debtors cannot rely on § 522(i)(2) to preserve an avoided tax lien for their

benefit.”

      The IRS and the Trustee entered into a stipulated judgment to avoid

the penalty portions of three liens listed on the May 23, 2011 notice of tax

lien which totaled $132,099.54. Debtors filed a timely notice of appeal.

                                JURISDICTION

      The bankruptcy court had jurisdiction pursuant to 28 U.S.C. §§ 1334

and 157(b). We have jurisdiction under 28 U.S.C. § 158.

                                     ISSUES

      Whether the appeal is moot;

      Whether the bankruptcy court erred in dismissing the complaint.

                          STANDARDS OF REVIEW

      We review our own jurisdiction, including whether an appeal is

moot, de novo. Silver Sage Partners, Ltd. v. City of Desert Hot Springs (In re

City of Desert Hot Springs), 339 F.3d 782, 787 (9th Cir. 2003). De novo review


                                         5
requires that we consider the matter as if no decision had been previously

rendered. Kashikar v. Turnstile Capital Mgmt., LLC (In re Kashikar), 567 B.R.

160, 164 (9th Cir. BAP 2017).

      We review a dismissal of an adversary proceeding under Civil Rule

12(b)(6) de novo. EPD Inv. Co., LLC v. Bank of Am. (In re EPD Inv. Co., LLC)

523 B.R. 680, 684 (9th Cir. BAP 2015). A dismissal without leave to amend is

reviewed for abuse of discretion. Id. A bankruptcy court abuses its

discretion if it applies the wrong legal standard, misapplies the correct

legal standard, or if its factual findings are illogical, implausible, or without

support in the record. Traffic School.com, Inc. v. Edriver Inc., 653 F.3d 820, 832

(9th Cir. 2011).

                                  DISCUSSION

A.    The Appeal Is Not Moot

      We cannot exercise jurisdiction over a moot appeal. United States v.

Pattullo (In re Pattullo), 271 F.3d 898, 900 (9th Cir. 2001). A case is

constitutionally moot “if the issues presented are no longer live and there

fails to be a ‘case or controversy’ under Article III of the Constitution.”

Pilate v. Burrell (In re Burrell), 415 F.3d 994, 998 (9th Cir. 2005). The test for

mootness is whether an appellate court can give the appellants effective

relief if it decides the merits in their favor. Id. As long as the parties have a

concrete interest in the outcome of the litigation, the case is not moot.

Chafin v. Chafin, 568 U.S. 165, 172 (2013).


                                          6
      The IRS argues that Debtors’ appeal is moot because the Trustee

succeeded in avoiding the penalty portion of two tax liens in the amount of

$132,099.54 which the Trustee believed would exhaust all equity from

Debtor’s property. The IRS suggests that the only way the appeal is not

moot is if Debtors have a meaningful interest in attempting to avoid the

penalty portion of the three remaining liens, which have a combined value

of approximately $30,000.

      Debtors contend that the appeal is not moot because they assert a

right to intervene in the Trustee’s action and preserve the liens for their

benefit despite the fact that the Trustee has avoided the liens. Debtors

argue that the bankruptcy court erred in holding that their ability to

preserve the liens under § 522(I) is dependent on Debtors having avoided

the liens under § 522(h). The property has not been sold and the proceeds

have not been distributed.

      The two liens avoided by the Trustee have a greater value than

Debtors’ homestead exemption. Because preservation of a lien under

§ 522(i)(2) is limited “to the extent that the debtor may exempt such

property,” Debtors’ rights would be unaffected by avoiding the remaining

penalty portions of the tax liens.

      However, to the extent that the dismissal order foreclosed Debtors’

ability to claim a homestead exemption after the liens were avoided,

Debtors’ rights could be affected by a favorable outcome in this appeal.


                                       7
Therefore, the appeal is not moot.

B.    The Bankruptcy Court Did Not Err In Dismissing The Complaint

      Under Civil Rule 12(b)(6), made applicable in adversary proceedings

by Rule 7012(b), a party may move to dismiss a complaint for failure to

state a claim upon which relief can be granted. Dismissal of an adversary

proceeding under Civil Rule 12(b)(6) may be based on “either a lack of a

cognizable legal theory or the absence of sufficient facts alleged under a

cognizable legal theory.” Johnson v. Riverside Healthcare Sys., LP, 534 F.3d

1116, 1121 (9th Cir. 2008). Debtors’ complaint lacks a cognizable legal

theory.

      1.    The Debtors Cannot Avoid The Tax Liens Under § 522(h)

      In the adversary proceeding, Debtors sought to avoid the penalty

portion of the tax liens under §§ 522(h) and 724(a). Section 522(h)

authorizes debtors to use the trustee’s avoidance powers, including the

power to avoid liens under § 724(a), if the trustee does not attempt to avoid

such liens. Section 724(a) allows a trustee to avoid a lien that secures a

claim specified in § 726(a)(4), which includes any fine, penalty, or

forfeiture, or exemplary, or punitive damages.

      Debtors can avoid a transfer of property under § 522(h) only if five

conditions are met:

            (1) the transfer cannot have been a voluntary
            transfer of property by the debtor;



                                       8
            (2) the debtor cannot have concealed the property;

            (3) the trustee cannot have attempted to avoid the
            transfer;

            (4) the debtor must exercise an avoidance power
            usually used by the trustee that is listed within
            § 522(h); and

            (5) the transferred property must be of a kind that
            the debtor would have been able to exempt from
            the estate if the trustee (as opposed to the debtor)
            had avoided the transfer pursuant to one of the
            statutory provisions in § 522(g).

In re DeMarah, 62 F.3d at 1250. However, even if Debtors can otherwise

satisfy these conditions, they cannot use § 522(h) to avoid liens that secure

tax penalties. Id. at 1251-52.

      In In re DeMarah, the Ninth Circuit held that chapter 7 debtors cannot

avoid the penalty portion of tax liens because exempt property remains

liable for tax liens under § 522(c)(2)(B). Id. at 1251. The Ninth Circuit

reasoned that although § 522(c)(2)(A) provides that avoided liens which

secure noncompensatory penalties do not remain attached to exempt

property, Congress “carefully added § 522(c)(2)(B) which brings back the

whole of any tax lien. That explicit language belies any argument that the

debtor can escape a part of the tax lien.” Id. at 1252.

      Debtors argue that the holding of In re DeMarah is not binding


                                        9
precedent because the Ninth Circuit did not specifically cite or address

§ 522(I) in its analysis. Where the Ninth Circuit “confronts an issue

germane to the eventual resolution of the case, and resolves it after

reasoned consideration in a published opinion, that ruling becomes law of

the circuit.” United States v. McAdory, 935 F.3d 838, 843 (9th Cir. 2019)

(quoting Cetacean Community v. Bush, 386 F.3d 1169, 1173 (9th Cir. 2004)).

      The Ninth Circuit specifically addressed the question of whether a

debtor can use § 522(h) to avoid the penalty portion of a tax lien and clearly

held that “Congress has denied debtors the right to remove tax liens from

their otherwise exempt property . . . even the penalty portion of the tax lien

remains fixed on that property.” In re DeMarah, 62 F.3d at 1252. The

holding of In re DeMarah is law of the circuit which the bankruptcy court

and this panel must follow.

      Even if In re DeMarah was not binding as Debtors argue, Debtors

failed to satisfy a necessary condition to proceed under § 522(h) because

the Trustee attempted to avoid the liens. Debtors filed their complaint less

than twenty days after the meeting of creditors and before the IRS had even

filed its proof of claim evidencing the tax liens. At the time Debtors filed

their complaint, the Trustee had not taken action to avoid the liens, but

there is no temporal requirement in § 522(h). The Code simply states that a

debtor may avoid a transfer if “the trustee does not attempt to avoid such

transfer.” § 522(h)(2). The Trustee timely answered the complaint and filed


                                       10
a crossclaim against the IRS. Once the Trustee asserted the estate’s interest

in avoiding the lien, Debtors could no longer maintain the action under

§ 522(h).

      2.      Debtors Cannot Preserve The Lien For Their Benefit

      Debtors argue that despite the fact that the Trustee has avoided the

liens, § 522(I) allows Debtors to preserve those avoided liens for their

benefit. Section 522(i)(2) states:

              Notwithstanding section 551 of this title, a transfer
              avoided under section 544, 545, 547, 548, 549, or
              724(a) of this title, under subsection (f) or (h) of this
              section, or property recovered under section 553 of
              this title, may be preserved for the benefit of the
              debtor to the extent that the debtor may exempt
              such property under subsection (g) of this section or
              paragraph (1) of this subsection.

         Section 522(i)(2) “adopts the rule of section 551 that avoided

transfers are preserved.” 5 COLLIER ON BANKRUPTCY ¶ 522.12 [4] (Alan N.

Resnick & Henry J. Sommer, eds. 16th ed. rev. 2012). A trustee or debtor

who avoids a lien “succeeds to the priority that interest enjoyed over

competing interests.” Retail Clerks Welfare Tr. v. McCarty (In re Van De

Kamp’s Dutch Bakeries), 908 F.2d 517, 519 (9th Cir. 1990). If the trustee

avoids the liens, § 551 automatically preserves the liens for the benefit of

the estate. Heintz v. Carey (In re Heintz), 198 B.R. 581, 584 (9th Cir. BAP

1996).

      Section 522(i)(2) allows Debtors to preserve an avoided lien for their

                                         11
benefit only if the liens were avoided by Debtors under § 522(f) or (h).

Additionally, Debtors can only preserve an avoided lien for their benefit

“to the extent that the debtor may exempt such property under subsection

(g).” Section 522(I) does not give Debtors greater exemption rights than

they would have if the Trustee avoids the liens instead.

      Generally, debtors can assert exemption rights on property avoided

by the trustee pursuant to § 522(g). However, where the avoided transfers

are liens securing tax penalties, Debtors cannot claim an exemption on the

property secured by the liens. The holding of In re DeMarah applies equally

to situations where the Trustee avoids liens securing tax penalties and

preserves the liens for the estate. Congress allowed noncompensatory

penalties to be avoided “to protect [ ] unsecured creditors from the debtor’s

wrongdoing.” In re DeMarah, 62 F.3d at 1252 (quoting S. Rep. No. 95-989,

95th Cong. 2d Sess. 96). It would be absurd to hold that Debtors cannot

avoid liens securing tax penalties under § 522(h) but permit Debtors to

benefit from their wrongdoing if instead the Trustee avoids the liens.

                              CONCLUSION

      Binding Ninth Circuit precedent precludes Debtors from avoiding

liens securing tax penalties under § 522(h). Debtors cannot preserve liens

for their benefit under § 522(i)(2) unless the liens were avoided by the

Debtors under § 522(h) or (f), and Debtors cannot exempt the property

under § 522(g) if the liens avoided by the Trustee secured tax penalties. For


                                      12
the reasons set forth above, we AFFIRM.




                                   13
