                                                                                   FILED
                                                                       United States Court of Appeals
                          UNITED STATES COURT OF APPEALS                       Tenth Circuit

                                FOR THE TENTH CIRCUIT                      September 14, 2018
                            _________________________________
                                                                           Elisabeth A. Shumaker
                                                                               Clerk of Court
 In re: AUSTIN FOX JENNINGS,

        Debtor.

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

 AUSTIN FOX JENNINGS,

        Appellant,

 v.                                                          No. 17-8095
                                                         (BAP No. 17-002-WY)
 RANDY L. ROYAL,                                      (Bankruptcy Appellate Panel)

        Appellee.
                            _________________________________

                                ORDER AND JUDGMENT*
                            _________________________________

Before EID, KELLY, and O’BRIEN, Circuit Judges.
                    _________________________________

       This is an appeal from a decision of the Tenth Circuit Bankruptcy Appellate

Panel (BAP) that affirmed the bankruptcy court’s order that the Debtor, Austin Fox

Jennings, is entitled to claim an exemption in his entireties interest in real property



       *
        After examining the briefs and appellate record, this panel has determined
unanimously to honor the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
submitted without oral argument. This order and judgment is not binding precedent,
except under the doctrines of law of the case, res judicata, and collateral estoppel. It
may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1
and 10th Cir. R. 32.1.
located in Wyoming, but only to the extent that his joint entities interest exceeds the

joint indebtedness of Jennings and his non-filing spouse. Exercising jurisdiction

under 28 U.S.C. § 158(d)(1), we affirm.

                           The Bankruptcy Court Proceedings

       In December 2010, Jennings filed his voluntary Chapter 7 bankruptcy petition.

Included in his schedule of assets was residential real property in Casper, Wyoming,

that was owned by him and his non-filing spouse as tenants by the entireties.

Jennings valued his entireties interest at $152,411.50—one-half of the $304,823

estimated value of the property—subject to a secured claim for $132,858. On his

schedule of liabilities, he listed two categories of joint debts owed by him and his

spouse: $116,629 owed to the Internal Revenue Service (IRS) and approximately

$13,750 owed on credit cards.

       Jennings claimed that his entireties interest in the Wyoming real property was

100% exempt under 11 U.S.C. § 522(b)(3)(B), which provides that a debtor can claim

as exempt “any interest in property in which [he] had . . . an interest as a tenant by

the entirety . . . to the extent that such interest as a tenant by the entirety . . . is

exempt from process under applicable nonbankruptcy law.” Under Wyoming law,

“[e]ntireties property is not exempt from process . . . from claims against both

spouses.” In re Wenande, 107 B.R. 770, 774 (Bankr. D. Wyo. 1989). “Thus, once

the entireties property is in the estate, the extent to which it may be exempted

pursuant to . . . § 522[(b)(3)(B)] . . . depends on the presence or absence of joint

creditors.” Id.


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      Randy L. Royal, the bankruptcy trustee (Trustee), objected to Jennings’s 100%

claimed exemption. In response to the Trustee’s objection, Jennings amended his

schedule of liabilities to reflect that the debt owed to the IRS was not a joint debt—

but his only. To further this claim, Jennings’s spouse requested relief from the debt

owed to the IRS under the theory that she was an “innocent spouse.”1 The Trustee

consented to the spouse seeking such a determination from the IRS because it would

resolve whether the debt was a joint obligation, which in turn was critical to the

resolution of Jennings’s entireties exemption.

      The parties filed status reports with the bankruptcy court during the pendency

of the IRS proceedings. In November 2013, the IRS denied innocent spouse relief,

and Jennings’s spouse filed an appeal in the United States Tax Court (Tax Court).

While the tax appeal was pending, Jennings asked the bankruptcy court to resolve the

legal merits of the Trustee’s objection. In particular, Jennings argued that the

bankruptcy court could resolve the Trustee’s objection if it “look[ed] merely to In re

Schlossberg, 380 F.3d 174 (4th Cir. 2004), which appears to address all of the issues

that are the subject of the Trustee’s exemption objection.” Aplt. App. at 64.

      The bankruptcy court held in a February 2015 order that Schlossberg was

inapposite. It further held the spouse’s tax appeal had to be resolved before the court

could enter a final judgment on the Trustee’s objection.


      1
        The “innocent spouse” doctrine provides relief from a debt to the IRS for a
spouse who “did not know, and had no reason to know, that there was [an]
understatement” of tax liability on a joint income tax return. 26 U.S.C.
§ 6015(b)(1)(C).

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       Jennings next filed a motion for further findings and/or to alter or amend the

February 2015 order, in which he repeated his arguments about Schlossberg. In a

June 2015 order, the bankruptcy court reaffirmed its holding that Schlossberg and a

similar line of cases were inapposite. The court also reiterated that the tax court

appeal had to be resolved before ruling on the Trustee’s objection:

       The court, in considering the Debtor’s claimed exemption of tenancy by
       entireties on the real property and the Trustee’s objection, finds Wyoming
       law allows a debtor to exempt property held as tenants by entireties. The
       allowable exemption provides the debtor an exemption in the real property,
       to the extent that the equity exceeds the total amount of debts owed jointly
       by Debtor and his non-filing spouse. In this case, the Debtor is allowed this
       claimed exemption. However, the amount of the Debtor’s exemption
       cannot be determined until the appeal pending in the Tax Court is entered.

Aplt. App. at 105.2

       In November 2015, the Tax Court entered a decision that approved an

agreement between Jennings’s spouse and the IRS that she was jointly liable with

Jennings for $114,068.30 of the debt. In January 2016, the Trustee and bankruptcy

court learned that the tax appeal had been resolved when Jennings attached a copy of

the decision to his status report.

       Eventually, Jennings and the Trustee submitted a stipulation to the bankruptcy

court in which they agreed that the entireties exemption was resolved by the June

2015 order. On January 12, 2017, the court approved the parties’ stipulation and

found that the “issue of the debtor’s claim of exemption in his real property was



       2
       The BAP dismissed Jennings’s appeal of the June 2015 order as a
non-appealable interlocutory order.

                                            4
resolved by this Court on June 5, 2015 by [the June 2015 Order].” Id. at 122.

Jennings appealed the June 5, 2015, order to the BAP. While the BAP appeal was

pending, the Trustee filed an adversary proceeding seeking an order to sell the real

property under 11 U.S.C. § 363(h), to determine the extent of joint debts against

Jennings and his non-filing spouse, and to distribute the proceeds.

                                    The BAP Appeal

      The BAP affirmed the June 2015 bankruptcy order. First, the BAP held that

Schlossberg was inapposite. The BAP explained that Schlossberg concerned whether

“the Chapter 7 trustee [could] invoke [11 U.S.C.] § 544(a)(2) hypothetical creditor

status to step into the shoes of the IRS in an effort to reach [tenancy-by-the-

entireties] property debtor owned with her non-filing spouse and thwart the debtor’s

exemption claim under [state] law.” Aplt. App. at 156. The BAP noted that the

“Fourth Circuit rejected the trustees’s attempt to invoke § 544(a)(2), stating that the

dispositive issue was ‘whether § 544(a)(2) vests a trustee with the rights and powers

of the IRS as a hypothetical creditor to penetrate the entireties exemption for the

benefit of the individual creditors of the debtor.’” Id. (emphasis added), quoting

Schlossberg, 380 F.3d at 177. In this case, “the debt in question is a joint liability to

the IRS; in Schlossberg it was the debtor’s individual debt.” Aplt. App. at 156.

      The BAP also rejected Jennings’s argument because unlike the trustee in

Schlossberg, the Jennings Trustee was not stepping into the shoes of the IRS to

collect the debt of an individual creditor: “Schlossberg is also irrelevant here

because the Trustee did not invoke ‘strong arm’ powers under § 544(a)(2). Instead,


                                            5
[the Trustee] claimed that the joint debts, including the tax debt[] of Jennings and his

non-filing spouse[,] reduced the extent of the entireties exemption, relying on In re

Wenande.” Id. at 157.

      As a final matter, the BAP rejected Jennings’s arguments about the proposed

sale of the real property under § 363(h)—the same arguments he raised in the then-

pending adversary hearing—and the distribution of proceeds from the sale under

11 U.S.C. § 726(a) as irrelevant and premature. As to § 363(h), the BAP held that

“[t]he bankruptcy court may determine whether the Casper property can be feasibly

partitioned in kind or whether it must be sold and the proceeds divided between the

estate and the non-debtor spouse,” and concluded that “proceeding is not relevant to

the exemption issues presented in this appeal; nor is [the adversary proceeding]

complete.” Id. at 158. The BAP also concluded that Jennings’s arguments about

§ 726(a) were premature: “Finally, Jennings claims that the appealed order somehow

violates the distribution priorities established by § 726(a). Jennings appears to

conflate allowing the exemption with implementing the distribution scheme under the

Bankruptcy Code. This issue is also premature because it does not appear that any

distribution has occurred.” Id. (footnote and citation omitted).

                                  Standard of Review

      Although this is an appeal from the BAP, “we review only the Bankruptcy

Court’s decision.” Mathai v. Warren (In re Warren), 512 F.3d 1241, 1248 (10th Cir.

2008) (internal quotation marks omitted). This does not mean that we ignore the

BAP’s decision, “[r]ather, we . . . treat the BAP as a subordinate appellate tribunal


                                           6
whose rulings are not entitled to any deference (although they certainly may be

persuasive).” Id. “In reviewing a bankruptcy court decision under 28 U.S.C.

§ 158(a) and (d), [this court] appl[ies] the same standards of review that govern

appellate review in other cases.” Troff v. Utah (In re Troff), 488 F.3d 1237, 1238-39

(10th Cir. 2007) (internal quotation marks omitted). Here, because “there are no

factual disputes and the issues on appeal pertain to the proper application of

bankruptcy statutes and interpretation of case law,” our review is de novo. Zubrod v.

Duncan (In re Duncan), 329 F.3d 1195, 1198 (10th Cir. 2003) (internal quotation

marks omitted).

                                       Analysis

      Although we are not required to defer to the BAP’s decision, we find it

persuasive in all respects—the BAP recognized the relevant issues and properly

applied the bankruptcy statutes and case law. Moreover, we agree with the Trustee

that Jennings has mischaracterized the issues and tries to raise a new issue for the

first time on appeal.

      Throughout his briefing, Jennings persists in recasting the issue as whether the

Trustee can lawfully proceed as a representative of the IRS. The Trustee is not acting

on behalf of the IRS. The bankruptcy court and the BAP explained this repeatedly.

      We also agree with the Trustee that Jennings’s “remaining arguments are

designed to create appellate issues that simply do not exist.” Aplee. Br. at 27. As the

BAP explained, his challenge to the Trustee’s anticipated distribution of the assets of

the bankruptcy estate under § 726(a) is premature. And setting aside the fact that


                                           7
Jennings did not present any argument in the bankruptcy court about the adversary

proceeding commenced by the Trustee, we agree with the BAP that the “proceeding

is not relevant to the exemption issue [] in this appeal.” Aplt. App. at 158.

      Last, Jennings tries to argue for the first time on appeal that only a judgment

creditor has standing to object to a tenants-by-the-entireties exemption. We will not

consider the argument because Jennings “did not raise this . . . argument below, and

he has not attempted to articulate a reason for us to depart from the general rule a

federal appellate court does not consider an issue not passed upon below.” Walker v.

Mather (In re Walker), 959 F.2d 894, 896 (10th Cir. 1992) (internal quotation marks

omitted).

      The judgment of the bankruptcy court is affirmed.

                                            Entered for the Court


                                            Allison H. Eid
                                            Circuit Judge




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