                                                                                    FILED
                                                                        United States Court of Appeals
                                       PUBLISH                                  Tenth Circuit

                     UNITED STATES COURT OF APPEALS                         December 16, 2013

                                                                            Elisabeth A. Shumaker
                                  TENTH CIRCUIT                                 Clerk of Court


In re: SCOTT MCGOUGH; LISA
MCGOUGH,

           Debtors.
___________________________

DAVID V. WADSWORTH,

             Plaintiff - Appellant,

v.                                                            No. 12-1142

THE WORD OF LIFE CHRISTIAN
CENTER,

             Defendant - Appellee.

___________________________

ALLIANCE DEFENDING FREEDOM,

             Amicus Curiae.



                  Appeal from the United States Bankruptcy Court
                            for the District of Colorado
                                    (BAP 11-38)


David V. Wadsworth, Denver, Colorado, Plaintiff - Appellant, pro se.

Lee Katherine Goldstein, (Scott T. Rodgers appearing with her on the brief), of Fairfield
and Woods, P.C., Denver, Colorado, for Defendant - Appellee

Before O'BRIEN, HOLMES, and MATHESON, Circuit Judges.
O’BRIEN, Circuit Judge.


       Section 548(a)(1)(B) of the United States Bankruptcy Code (11 U.S.C. §

548(a)(1)(B)) allows a trustee to avoid any transfer of property by a debtor made within

two years before the date of the filing of bankruptcy (the “reach-back period”) if the

debtor (1) received less than a reasonably equivalent value in exchange for the transfer

and (2) was insolvent on the date the transfer was made or became insolvent as a result of

the transfer. Section 550, in turn, allows the trustee to recover transfers of property

avoided under § 548 for the benefit of the bankruptcy estate.

       In 1998, Congress passed the Religious Liberty and Charitable Donation

Protection Act (RLCDPA), Pub. L. No. 105-183, § 3, 112 Stat. 517 (1998). The Act

amended § 548 by adding a “safe harbor” provision1 exempting transfers of charitable

contributions to qualified religious or charitable organizations from § 548(a)(1)(B) so

long as (1) “the amount of that contribution does not exceed 15 percent of the gross

annual income [GAI] of the debtor for the year in which the transfer of the contribution is

made” or (2) even if the contribution exceeds 15% of GAI, “the transfer was consistent

with the practices of the debtor in making charitable contributions.” 11 U.S.C. §

548(a)(2).


       1
       This provision was referred to as a “safe harbor” provision in H.R. Report No.
105-556, 1998 WL 285820, at *9 (1998).



                                                -2-
       The sole question in this appeal is a narrow one: If a restricted debtor transfers

more than 15% of his GAI to a qualified religious or charitable organization, may the

trustee avoid the entire annual transfer or only the portion exceeding 15%? The

bankruptcy court and Bankruptcy Appellate Panel (BAP) said circumstances here only

permit the trustee to avoid the portion of the transfer exceeding 15%. Because that result

is contrary to the plain language of the statute, we reverse.

                             I. FACTUAL BACKGROUND

       The relevant facts are not in dispute. Debtors Lisa and Scott McGough filed for

bankruptcy relief under Chapter 7 of the United States Bankruptcy Code on

December 31, 2009. David Wadsworth was appointed Trustee. During 2008, the

McGoughs made twenty-five contributions to the Word of Life Christian Center (the

Center), totaling $3,478.2 During 2009, they made seven contributions to the Center

totaling $1,280. Their taxable income for 2008 and 2009 was $6,800 and $7,487,

respectively. They also received social security benefits in 2008 and 2009 totaling

$22,036 and $23,164, respectively.

       The Trustee filed an adversary proceeding against the Center seeking to recover

the contributions made to it by the McGoughs in 2008 and 2009 under 11 U.S.C. §§



       2
         Although our review of the record reveals the McGoughs made twenty-six
contributions to the Center in 2008 totaling $3,488, the parties stipulated as to the
quantity and amount of contributions. The bankruptcy court adopted the stipulation. As
this discrepancy does not affect our analysis, we do the same.



                                                -3-
548(a)(1)(B) and 550. Both parties filed motions for summary judgment. According to

the Center, because the individual amounts of each contribution made by the McGoughs

to it in 2008 and 2009 did not exceed 15% of their GAI, none were avoidable under the

safe harbor provision of § 548(a)(2).3 While recognizing that if the contributions were

considered in their annual aggregate, they would exceed 15% of the McGoughs’ GAI, it

nevertheless claimed the Trustee could only avoid the amount of the contributions

exceeding 15% of GAI, entitling it to retain the remainder.4 The Trustee took the

opposite view: the contributions must be considered in the aggregate and because the

total contributions made by the McGoughs to the Center in 2008 and 2009 exceeded 15%

of their GAI in those years, he could recover them in their entirety.

       The bankruptcy court agreed with the Trustee in part: for purposes of applying the

safe harbor provision of § 548(a)(2), a debtor’s contributions must be considered in their

annual aggregate. However, it sided with the Center on the avoidance issue—if the



       3
       The parties admit the Center is a qualified religious or charitable organization for
purposes of § 548(a)(2).
       4
         The Center also suggested in a footnote the social security benefits received by
the McGoughs in 2008 and 2009 should be used in calculating their GAI. The
bankruptcy court disagreed. Because the Center did not raise this argument on appeal,
the BAP did not address it. The issue is not before us.
       Also not before us is whether the McGoughs were insolvent on the date the
contributions were made or became insolvent as a result of them—a prerequisite for the
Trustee’s exercise of his avoidance authority under § 548(a)(1)(B). Although the Center
contested in the bankruptcy court whether the Trustee had satisfied this prerequisite, it
has not raised this argument in this appeal.



                                               -4-
contributions exceed 15% of a debtor’s GAI, only the amount exceeding 15% is subject

to avoidance. Thus, the Trustee’s recovery was limited to the amount of the contributions

exceeding 15% of the McGoughs’ GAI in 2008 and 2009.

       The Trustee appealed to the BAP. Notably, the Center did not appeal from the

bankruptcy court’s decision requiring a debtor’s contributions to be considered in the

annual aggregate in applying § 548(a)(2). Therefore, the only issue before the BAP was

whether § 548(a)(2) allows a trustee to recover the entire amount of a charitable

contribution if it exceeds 15% of GIA or only the amount in excess of 15%. The BAP

agreed with the bankruptcy court—only the amount exceeding 15% was avoidable.

                              II. STANDARD OF REVIEW

       “Although this appeal is from a decision by the BAP, we review only the

Bankruptcy Court’s decision.” Alderete v. Educ. Credit Mgmt. Corp. (In re Alderete),

412 F.3d 1200, 1204 (10th Cir. 2005). “Because the basic issue here is one of

interpretation of the bankruptcy statutes and there are no disputed issues of fact, . . . our

standard of review is de novo.” Rupp v. United Sec. Bank (In re Kunz), 489 F.3d 1072,

1077 (10th Cir. 2007).

                                     III. DISCUSSION

       The issue presented is a matter of first impression in this Circuit. The portion of

the Bankruptcy Code governing avoidance of charitable contributions, 11 U.S.C. §

548(a)(2), provides:




                                                 -5-
       A transfer of a charitable contribution to a qualified religious or charitable entity
       or organization shall not be [avoidable by the Trustee under § 548(a)(1)(B)] in any
       case in which—

              (A) the amount of that contribution does not exceed 15 percent of the gross
              annual income of the debtor for the year in which the transfer of the
              contribution is made; or

              (B) the contribution made by a debtor exceeded the percentage amount of
              gross annual income specified in subparagraph (A), if the transfer was
              consistent with the practices of the debtor in making charitable
              contributions.

       We summarize the Trustee’s argument: § 548(a)(2) is unambiguous and clearly

provides a safe harbor from the trustee’s avoidance power only if the “transfer” does not

exceed 15% of GAI. Thus the converse must also be true—if the “transfer” exceeds 15%

of GAI, then the “transfer”—meaning the entire transfer—is subject to avoidance. Had

Congress intended for only the portion of the transfer exceeding 15% of GAI to be

subject to avoidance, it would have added limiting language to that effect. It did not.

Because § 548(a)(2) is unambiguous, the resort to legislative history is inappropriate.

       The Center’s argument is conveniently confusing. On the one hand, it appears to

argue § 548(a)(2) cannot be read to support the Trustee’s interpretation because it fails to

explicitly state that if the amount of the debtor’s aggregate contributions over the course

of a year exceeds 15% of the debtor’s GAI, then the entire amount of the contributions is

subject to avoidance. Indeed, according to the Center, by using the phrase “in any case in

which,” the statute broadens the scope of the circumstances under which transfers are

protected to include those portions of transfers which do not exceed 15% of GAI. On the



                                               -6-
other hand, the Center claims if the statute can reasonably be interpreted to support the

Trustee’s position, then it is ambiguous because it is susceptible to both the Center and

Trustee’s differing interpretations. And because of this alleged ambiguity, the Center

relies on the statute’s legislative history, namely House Report No. 105-556, which

states:

          The 15 percent safe harbor is necessary to protect the tithing practices of certain
          religious faiths. It is intended to apply to transfers that a debtor makes on an
          aggregate basis during the . . . reachback period preceding the filing of the
          debtor’s bankruptcy case. Thus, the safe harbor protects annual aggregate
          contributions up to 15 percent of the debtor’s gross annual income.

1998 WL 285820, at *9 (1998) (emphasis added). According to the Center, the “up to”

language indicates Congress intended to protect the amount of the contribution which

falls below 15% of a debtor’s GAI even if the total amount exceeds 15%.

          “Our interpretation of the Bankruptcy Code starts where all such inquiries must

begin: with the language of the statute itself.” Ransom v. FIA Card Servs., N.A., 131 S.

Ct. 716, 723 (2011) (quotations omitted). “[C]ourts must presume that a legislature says

in a statute what it means and means in a statute what it says there. When the words of a

statute are unambiguous, then, this first canon is also the last: judicial inquiry is

complete.” Conn. Nat’l Bank v. Germain, 503 U.S. 249, 253-54 (1992) (citations and

quotations omitted). See also, BedRoc Ltd. v. United States, 541 U.S. 176, 186-87 & n.8

(2004) (if the plain meaning of the statute is clear, resort to legislative history is




                                                  -7-
improper; legislative history should only be considered to interpret an ambiguous

statute).5 As there is no ambiguity here, we look only to the words of the statute.




       5
         This case is a good example of one reason why resort to legislative history is
problematic: its interpretation is subject to its own ambiguity. The Center relies on
House Report 105-556 which states the safe harbor provision of § 548(a)(2) “protects
annual aggregate contributions up to 15 percent of the debtor’s gross annual income.”
1998 WL 285820, at *9. While the Center interprets this statement to mean Congress
intended to protect the amount of the contribution which falls below 15% of GAI even if
the total amount exceeds 15%, an equally plausible interpretation is Congress intended to
protect a contribution only if it does not exceed 15% of GAI.
        House Report 105-556 also states one of RLCDPA’s purposes is to protect
“religious and charitable organizations from having to turn over to bankruptcy trustees
donations these organizations receive from individuals who subsequently file for
bankruptcy relief.” Id. at *1-2. It further provides several policy considerations behind
the Act: (1) the First Amendment rights of the donor and donee; (2) the use of donations
by religious and charitable organizations to fund valuable services to society; and (3) an
organization’s lack of resources to defend against a recovery action by a trustee. Id. at
*1-2. Again, this history does not answer the question before us. Indeed, the policies
could support a total exemption but Congress chose instead to use the 15% limitation to
balance these policies with the government’s interest in avoiding fraudulent transfers
which deplete the bankruptcy estate.
        Finally, the Trustee points to two statements in the legislative history to support
his own position. First, he points to a statement made during the House debate on the Act
by Rep. Nadler saying that if the debtor’s aggregate donations exceed 15%, the debtor
would have to show the transfer was consistent with his or her prior pattern of charitable
giving in order for the donation to be protected. The Trustee also points to a statement
made in a letter from the Director of the Center for Law and Religious Freedom, who
characterized the 15% limitation as establishing a bright-line test that if donations are no
more than 15%, then the trustee cannot challenge them, but if they are more than 15%,
then the debtor will have to prove they are consistent with past practices. Given our
qualms about the probative value of legislative history, whether these statements
meaningfully support the Trustee’s (and our) interpretation is questionable. They do,
however, show the legislative history concerning the 15% limitation is far from
definitive.



                                               -8-
       Under the Center’s interpretation, the 15% limit does not merely act as an

“avoidable” threshold but also establishes the amount of the transfer protected from

avoidance if that threshold is exceeded. It suggests this meaning flows from the phrase

“in any case which,” which, it argues, conveys a meaning similar to the phrase “to the

extent.” We reject the argument.

       The phrase “in any case in which” is a legalism often used in place of “if” or

“when.” See Joseph M. Williams, Style: Ten Lessons in Clarity & Grace 90-91 (3d ed.

1989) (suggesting “if” or “when” as an alternative for the very similar phrase “under

circumstances in which”). While it is not the most economical turn of phrase, long use

has made its meaning plain. It is often used in statutory language where the Center’s

amount-indicating meaning would make no sense. See 47 U.S.C. § 252(e)(6) (“In any

case in which a State commission makes a determination under this section, any party

aggrieved by such determination may bring an action in an appropriate Federal district

court . . . .”); 28 U.S.C. § 455(a) (“Any justice or judge of the United States shall

disqualify himself in any case in which he has a substantial interest”); 28 U.S.C. §

1605(a) (“A foreign state shall not be immune from the jurisdiction of courts of the

United States or of the States in any case . . . in which the foreign state has waived its

immunity either explicitly or by implication”). Because of this widespread understanding

of “in any case in which” as simply meaning “if” or “when,” the Center’s interpretation

of “in any case in which” as indicating not only “if” or “when” the exception applies, but

also the amount protected from avoidance, is vanishingly improbable.


                                                -9-
       Substituting “if” for the phrase “in any case in which” resolves any claimed

ambiguity. Under § 548(a)(2), a transfer is not avoidable if its amount does not exceed

15% of GAI. Thus, the contrapositive must also be true—if the amount of a transfer

exceeds 15% of GAI, the transfer is avoidable. Because there is no language limiting the

amount of the transfer to be avoided, the only reasonable reading of the statute is that the

amount of the transfer to be avoided is the entire amount. Nothing in the plain language

of the statute indicates that, if the transfer exceeds 15% of GAI, only the portion

exceeding 15% is avoidable.

       The only court to have interpreted the words of this statute understood the words

the same way we do. In Murray v. Louisiana State Univ. Found. (In re Zohdi), the court

decided the plain language of the statute subjected the entire transfer to avoidance if the

transfer exceeded 15% of the debtor’s GAI. 234 B.R. 371, 373 (Bankr. M.D. La. 1999).

To conclude otherwise, the court reasoned, would require it to rewrite the statute to

include limiting language not present in the statute. Id. at 375. Indeed, the court

envisioned several potential “rewrites” of the statute which Congress could have adopted,

but did not, to achieve the result urged by the Center in this case:

       1. A transfer . . . shall not be considered a transfer covered under
       paragraph (1)(B) in (A) an amount not to exceed 15 percent . . .

       2. A transfer . . . shall not be considered a transfer covered under
       paragraph (1)(B) up to —
              (A) an amount equal to 15 percent . . .

       3. A transfer . . . shall not be considered a transfer covered under
       paragraph (1)(B) except to the extent that—


                                               - 10 -
              (A) the amount of the contribution exceeds 15 percent . . . .

Id.

       We agree with Zohdi.6 Without language limiting the word “transfer” to that

portion of the transfer exceeding 15%, the entire transfer is avoidable.

       We see another problem with the Center’s “does not exceed 15 percent” argument.

It improperly reads key language out of the statute. According to the statute, the

contribution shall not be avoidable if “the amount of that contribution does not exceed 15

percent of the [debtor’s GAI].” 11 U.S.C. § 548(a)(2)(A) (emphasis added). The

Center’s argument makes “of” superfluous, but “of” is critical to understanding the


       6
         The bankruptcy court distinguished Zohdi on two grounds: (1) it involved a
single charitable donation, and (2) it interpreted § 548(a)(2) as not requiring a debtor’s
contributions to be considered in their aggregate, meaning a debtor could deplete his
entire estate by simply making several donations below the 15% threshold. We do not
see the relevance of these distinctions. Although Zohdi involved a single donation
exceeding 15% of the debtor’s GAI, the court’s analysis of § 548(a)(2) did not turn on the
number of contributions involved. Similarly, the Zohdi court’s interpretation of
§ 548(a)(2) as not requiring an aggregate analysis was dicta and not relevant to the
court’s analysis of the 15% limitation. See Zohdi, 234 B.R. at 380 n.20.
        The Center also relies on Universal Church v. Geltzer to support its ambiguity
argument. 463 F.3d 218 (2d Cir. 2006). There, the Second Circuit considered whether
the contributions made by a debtor should be considered separately or in the annual
aggregate for purposes of determining whether they exceed 15% of the debtor’s GAI. Id.
at 223. The court concluded the statute was ambiguous so it turned to the legislative
history which indicated Congress intended contributions to be considered in the
aggregate, not individually. Id. at 223-24. Universal Church is not helpful because it
decided a different issue. Indeed, while the church attempted to argue only the amount of
a contribution exceeding 15% should be avoided rather than the entire amount, the court
declined to consider the argument because it was never raised on appeal to the district
court. Id. at 228-29.



                                               - 11 -
phrase “the amount of that contribution.” Properly read the phrase defines the qualifying

(or non-qualifying) contribution as a discrete number. The Center, again, would have us

read it as something else, to wit: “the amount that contribution does not exceed 15

percent.” See Leocal v. Ashcroft, 543 U.S. 1, 12 (2004) (“[W]e must give effect to every

word of a statute wherever possible.”); Fuller v. Norton, 86 F.3d 1016, 1024 (10th Cir.

1996) (“We avoid interpreting statutes in a manner that makes any part superfluous.”).

Giving effect to every word used, the 15% limit merely establishes when a transfer is

subject to the trustee’s avoidance powers, not the amount of the transfer protected if that

threshold is exceeded.

       Despite the statute’s plain meaning, the Center argues we should nevertheless

adopt its interpretation of the statute because to do otherwise would reach an absurd

result—it would protect a debtor’s right to donate 15% of his GAI to a charitable

organization but allow a trustee to avoid the entire amount of the donations if they are

one cent over the 15% threshold. Such a result, according to the Center, would place an

undue burden on churches and other charitable organizations which would have to

investigate a donor’s financial background in order to use funds within two years of their

receipt (the reach-back period). Moreover, according to the Center, to allow a trustee to

avoid the entire transfer if it exceeds 15% of GAI would undercut the purposes of

RLCDPA—to protect religious and charitable organizations from having to turn over

donations they receive from individuals who subsequently file for bankruptcy and to




                                               - 12 -
protect the rights of debtors to make religious and charitable donations up to 15% of their

GAI.7

        The absurdity doctrine is an exception to the rule that the plain and ordinary

meaning of a statute controls. Resolution Trust Corp. v. Westgate Partners, LTD, 937

F.2d 526, 529 (10th Cir. 1991). Under this doctrine, “interpretations of a statute which

would produce absurd results are to be avoided if alternative interpretations consistent

with the legislative purpose are available.” Griffin v. Oceanic Contractors, Inc., 458 U.S.

564, 575 (1982). In other words, where a plain language interpretation of a statute would

lead to an absurd outcome which Congress clearly could not have intended, we employ

the absurdity exception to avoid the absurd result. Resolution Trust Corp., 937 F.2d at


        7
         As additional support for its absurdity argument, the Center relies on 11 U.S.C.
§ 1325(b)(2)(A), which was amended by RLCDPA. See Religious Liberty and
Charitable Donation Protection Act of 1998, Pub. L. No. 105-183, § 4, 112 Stat. 517
(1998). Section 1325(b)(1) prohibits a bankruptcy court from confirming a
reorganization plan if the trustee or the holder of an allowed unsecured claim objects
unless the plan provides that all of the debtor’s projected disposable income to be
received during the plan will be applied to make payments to unsecured creditors.
Subsection (b)(2) defines “disposable income” as the debtor’s current monthly income
less amounts reasonably necessary to be expended “for charitable contribution . . . in an
amount not to exceed 15 percent of gross income of the debtor.” In other words, §
1325(b)(2)(A)(ii) allows a Chapter 13 debtor to make charitable contributions up to 15%
of his or her gross income during the term of the plan. According to the Center, adopting
the Trustee’s interpretation of § 548(a)(2) would lead to an absurd result in that it would
“disharmonize [§§] 548(a)(2)(A) and 1325(b)(2)(A) by treating pre-filing and post-filing
payments to charities differently.” We fail to see the disconnect. Section 548(a)(2), like
§ 1325(b)(2)(A), allows a debtor to contribute up to 15% of his income to a religious or
charitable organization. Just as a Chapter 7 debtor’s pre-petition contribution in excess of
15% is subject to avoidance, a Chapter 13 debtor’s post-petition contribution in excess of
15% does not reduce the amount of disposable income subject to creditors.


                                               - 13 -
529. However, the absurdity rule is “a tool to be used to carry out Congress’ intent—not

to override it.” Id. Indeed, subject to constitutional limitations, Congress “is free to

enact any number of foolish statutes.” Id. Therefore, it is only where we are convinced

that “Congress, not the court, could not have intended such a result” will we apply the

absurdity exception. Id. This is because “[t]here is a heavy presumption that Congress

meant what it said, particularly when the words are clear and not ambiguous when given

their ordinary meaning.” Id. at 531. “The words chosen by Congress are a restraint upon

the courts, and if we are not tethered by them in all but the most compelling of cases, then

there is left no restraint . . . to corral the power of the courts from substituting their

judgment of proper public policy for that of the legislature’s.” Id. If a party is unhappy

with a statute’s plain meaning, it may always seek an amendment from Congress. See id.

at 531-32.

       Thus, “[o]ne claiming that the plain, unequivocal language of a statute produces an

absurd result must surmount a formidable hurdle”:

       It is not enough to show that the result is contrary to what Congress (or, perhaps
       more accurately, some members of Congress) desired. In other words, we cannot
       reject an application of the plain meaning of the words in a statute on the ground
       that we are confident that Congress would have wanted a different result. Instead,
       we can apply the doctrine only when it would have been unthinkable for Congress
       to have intended the result commanded by the words of the statute—that is, when
       the result would be so bizarre that Congress could not have intended it[.]
       Accordingly, whether some members of Congress (or even a committee)
       expressed a view contrary to the statute’s language is beside the point. For the
       same reason, we cannot reject the plain meaning of statutory language just because
       Congress may not have anticipated the result compelled by that language in a
       particular case.



                                                 - 14 -
Robbins v. Chronister, 435 F.3d 1238, 1241-42 (10th Cir. 2006) (en banc).

       We see no absurdity here. The statute establishes a bright-line rule—donations

not exceeding 15% of GAI are protected; donations exceeding 15% are not. While the

statute may place a burden on churches and other religious and charitable organizations

which may be faced with potentially having to turn over donations they receive to a

trustee, that burden exists even under the Center’s interpretation of the statute. Indeed,

under the Center’s interpretation, the burden would be even more onerous—rather than

set aside the entire amount of the donation for two years, the organization would

potentially only have to set aside the portion of the donation exceeding 15% of the

debtor’s GAI—a tedious and potentially impossible calculation for an organization to

make. Nor does our interpretation of § 548(a)(2)(A) undermine the purposes of

RLCDPA. It allows debtors to make donations to religious and charitable organizations

up to 15% of their GAI and, to the extent the donations do not exceed that amount, they

may be kept by the organization. If the Center is unhappy with the result in this case, its

remedy lies with Congress, not this court.

       The key flaw in the Center’s absurdity argument, however, is it ignores the other

protection built-in to § 548(a)(2)—even if the debtor’s contribution exceeds 15% of his

GAI, the entire amount is protected if it is consistent with his past charitable giving

practices. This is an important provision as it is certainly not “absurd” for Congress to

want to protect the normal tithing practices of an individual regardless of amount—yet

subject that tithing to avoidance if it is over 15% of the debtor’s GAI and inconsistent


                                               - 15 -
with past practices. It is entirely reasonable for Congress to view the latter conduct as

fraudulent and subject to avoidance, especially when made by an insolvent donor within

two years of filing for bankruptcy who receives less than a reasonably equivalent value in

exchange for his donation, which are yet further requirements for the exercise of the

trustee’s avoidance powers.8



       8
          Alliance Defending Freedom (ADF), a not-for-profit public interest organization
providing strategic planning, training and funding to attorneys and organizations
regarding religious civil liberties and family values, has filed an amicus brief in support
of the Center’s interpretation of § 548(a)(2). According to ADF, allowing a trustee to
avoid the entire amount of a religious or charitable contribution if it exceeds 15% of a
debtor’s GAI violates the Religious Freedom Restoration Act (RFRA), 42 U.S.C. §§
2000bb to bb-4, because it places a substantial burden on the religious exercise of the
donor and recipient church without a compelling government interest. While ADF
concedes the government has an important interest in avoiding transfers which deplete
the bankruptcy estate, it claims there is no compelling interest in avoiding all tithing. In
any event, according to ADF, allowing a trustee to avoid an entire tithe if it exceeds 15%
of the debtor’s GAI is not the least restrictive means of furthering the government’s
interest. ADF claims the Center’s interpretation of § 548(a)(2)—protecting religious and
charitable contributions up to 15% of a debtor’s GAI and permitting only those
contributions exceeding that amount to be avoidable—strikes the appropriate balance
between the religious liberty of the debtor and the government’s interest in avoiding
fraudulent transfers.
         We decline to consider the RFRA argument because (1) it was not raised by the
Center; (2) the issue is neither jurisdictional nor does it touch on an issue of federalism or
comity which should be considered sua sponte; and (3) no other exceptional
circumstances exist justifying our consideration of the issue. See Tyler v. City of
Manhattan, 118 F.3d 1400, 1403-04 (10th Cir. 1997); see also Rosenfield v. HSBC Bank,
USA, 681 F.3d 1172, 1178, n.4 (10th Cir. 2012) (noting that, absent “exceptional
circumstances,” we “keep our primary focus on the parties’ arguments”). We do note,
however, RFRA prohibits the government from “substantially burden[ing] a person’s
exercise of religion even if the burden results from a rule of general applicability” unless
it “is in furtherance of a compelling government interest” and “is the least restrictive
means of furthering that compelling government interest.” 42 U.S.C. § 2000bb-1. A
                                                                              (Continued . . .)

                                                - 16 -
       REVERSED and REMANDED.




government act imposes a substantial burden on religious exercise if it, inter alia,
“prevents participation in conduct motivated by a sincerely held religious belief.” Hobby
Lobby Stores, Inc. v. Sebelius, 723 F.3d 1114, 1138 (10th Cir.) (en banc) (quotations
omitted), cert. granted, --- S. Ct. ---, 2013 WL 5297798 (2013). As stated above, §
548(a)(2) does not prevent a debtor from all tithing. It merely allows a trustee to seek to
recover large contributions that are inconsistent with the debtor’s past practices. Thus the
statute does not burden, let alone substantially burden, legitimate tithing.



                                              - 17 -
