               ELECTRONIC CITATION: 2008 FED App. 0009P (6th Cir.)
                            File Name: 08b0009p.06

            BANKRUPTCY APPELLATE PANEL OF THE SIXTH CIRCUIT

In re: RALPH HARTFORD KIMBRO, JR.                )
       AND PATRICIA ANN KIMBRO,                  )
                                                 )
                  Debtors.                       )
_____________________________________            )
                                                 )
HENRY E. HILDEBRAND, III, TRUSTEE,               )
                                                 )
                    Appellant,                   )
                                                 )
                                                 )
       v.                                        )       No. 07-8052
                                                 )
RALPH HARTFORD KIMBRO, JR.                       )
AND PATRICIA ANN KIMBRO,                         )
                                                 )
                  Debtors-Appellees.             )
_____________________________________            )

                     Appeal from the United States Bankruptcy Court
                     for the Middle District of Tennessee at Nashville.
                                      No. 07-03948.

                                 Argued: February 6, 2008

                            Decided and Filed: June 12, 2008

       Before: FULTON, RHODES, and SCOTT, Bankruptcy Appellate Panel Judges.

                                 ____________________

                                       COUNSEL

ARGUED: Henry E. Hildebrand, III, OFFICE OF THE CHAPTER 13 TRUSTEE, Nashville,
Tennessee, for Appellant. Mary Elizabeth Ausbrooks, CLARK & WASHINGTON, P.C., Nashville,
Tennessee, for Appellees. ON BRIEF: Henry E. Hildebrand, III, OFFICE OF THE CHAPTER 13
TRUSTEE, Nashville, Tennessee, for Appellant. Mary Elizabeth Ausbrooks, CLARK &
WASHINGTON, P.C., Nashville, Tennessee, for Appellees.
                                        ____________________

                                             OPINION
                                       ____________________

        STEVEN RHODES, Bankruptcy Appellate Panel Judge. This appeal requires the Panel to
decide whether in the means test of 11 U.S.C. § 707(b)(2)(A)(ii)(I), a debtor may deduct an
“ownership expense” for a vehicle that is subject to neither secured debt nor a lease. For the reasons
stated herein, the Panel concludes that the debtor is entitled to that expense deduction and affirms
the decision of the bankruptcy court.


                     I.   JURISDICTION AND STANDARD OF REVIEW
        The Bankruptcy Appellate Panel of the Sixth Circuit has jurisdiction to decide this appeal.
The United States District Court for the Middle District of Tennessee has authorized appeals to the
BAP. A final order of a bankruptcy court may be appealed by right under 28 U.S.C. §158(a)(1). For
purposes of appeal, an order is final if it “‘ends the litigation on the merits and leaves nothing for the
court to do but execute the judgment.’” Midland Asphalt Corp. v. United States, 489 U.S. 794, 798,
109 S. Ct. 1494, 1497 (1989) (citations omitted).
        The only issue on appeal is whether a debtor may claim the “vehicle ownership expense” on
the means test form for a vehicle that is not encumbered by debt or subject to a lease. This is a legal
issue which is reviewed de novo. See Nicholson v. Isaacman (In re Isaacman), 26 F.3d 629, 631
(6th Cir. 1994). “De novo review requires the Panel to review questions of law independent of the
bankruptcy court’s determination.” First Union Mortgage Corp. v. Eubanks (In re Eubanks), 219
B.R. 468, 469 (B.A.P. 6th Cir. 1998) (citation omitted).


                                             II. FACTS
        The facts of this case are not in dispute. The Kimbros filed a voluntary chapter 13
bankruptcy petition on June 7, 2007. Their yearly income exceeded the state median income for a
family of their size. The trustee objected to the Kimbros’ chapter 13 plan, asserting that it did not
comply with 11 U.S.C. § 1325(b).




                                                   -2-
       Section 1325(b) provides:
               If the trustee or the holder of an allowed unsecured claim objects to
               the confirmation of the plan, then the court may not approve the plan
               unless, as of the effective date of the plan– . . . the plan provides that
               all of the debtor’s projected disposable income to be received in the
               applicable commitment period beginning on the date that the first
               payment is due under the plan will be applied to make payments to
               unsecured creditors under the plan.

11 U.S.C. § 1325(b)(1)(B).
       For purposes of § 1325(b), the term “disposable income” means the current monthly income
received by the debtor less amounts reasonably necessary to be expended for the maintenance or
support of the debtor or a dependent of the debtor and for charitable contributions. 11 U.S.C.
§ 1325(b)(2)(A)(I) and (ii). Subparagraph (3) provides: “Amounts reasonably necessary to be
expended under paragraph (2) shall be determined in accordance with subparagraphs (A) and (B) of
section 707(b)(2), if the debtor has current monthly income” greater than the median income.
11 U.S.C. § 1325(b)(3).
       The Kimbros’ means test form, Form 22C, disclosed monthly disposable income of $183.60.
Using the means test form to calculate this amount of “disposable income,” the Kimbros deducted
an ownership expense of $358.82 for their first vehicle. This figure was calculated by subtracting
their car payment of $112.18 from the Local Standard of $471.18, as required by 11 U.S.C.
§ 707(b)(2)(A)(ii)(I). The Kimbros also deducted an ownership expense $332 for the Kimbros’
second vehicle. The Kimbros reported no payment on any debt secured by the second vehicle.
       The trustee argues that the Kimbros’ plan did not propose to pay all “projected disposable
income” to unsecured creditors because on Form 22C, the Kimbros deducted a vehicle ownership
expense for a second vehicle for which they were not indebted and did not make any payments. In
support of this argument, the trustee relies on the Internal Revenue Manual, Financial Analysis
Handbook (“IRM”), which he contends does not allow taxpayers to claim an ownership expense for
a vehicle for which they do not make payments.1 Accordingly, the trustee asserts that the monthly
disposable income reflected on the Kimbros’ means test form does not accurately reflect their



       1
        The complete IRM may be found at http://www.irs.gov/irm. The Financial Analysis
Handbook that addresses the IRS’ application of its collection standards is in Part 5, Chapter 15 of
the IRM and may be found at http://www.irs.gov/irm/part5/ch15s01.html.

                                                  -3-
disposable income. The trustee asserts that the Kimbros are not entitled to deduct the expense and
that the bankruptcy court erred in confirming the plan.


                                       III.   DISCUSSION
       The issue of whether a debtor may deduct a vehicle ownership expense in the bankruptcy
means test when the debtor has no debt or lease payment has arisen with some frequency since the
enactment of the 2005 amendments to the bankruptcy code. At least twenty eight published
decisions have addressed the issue and there is a close split of authority on the question.2
       The issue arises based on the language in 11 U.S.C. § 707(b)(2)(A)(ii)(I), the means test,
which states, “The debtor’s monthly expenses shall be the debtor’s applicable monthly expense
amounts specified under the National Standards and Local Standards, and the debtor’s actual
monthly expenses for the categories specified as Other Necessary Expenses issued by the Internal
Revenue Service for the area in which the debtor resides[.]” The reference to National and Local
Standards is to the standards used by Internal Revenue Service for revenue officers to determine a
taxpayer’s ability to pay a delinquent tax. These standards are compiled in a table format and are
published on the internet. The U.S. Trustee’s website and most bankruptcy courts’ websites provide
links to these standards.
       The Local Transportation Standards vary by census region. There are two components, one
for operating expenses and one for ownership expenses. The table for “Operating Costs and Public
Transportation Costs” sets forth various amounts depending on whether the debtor owns no car, one
car or two cars. The table for “Ownership Costs” provides amounts for the debtor’s “first car” and
“second car.”
       The IRS Local Transportation Standards do not state or suggest that a taxpayer must have
a debt or lease payment for the revenue officer to deduct the applicable ownership expense.
However, the trustee argues that because under the IRM, the IRS does not deduct a vehicle
ownership expense when there is no debt or lease payment for the vehicle, 11 U.S.C.
§ 707(b)(2)(A)(ii)(I) incorporates the same rule into the bankruptcy means test.


       2
       The cases are collected in In re Clark, No. 07-23390, __ B.R. __, 2008 WL 444565 (Bankr.
E.D. Wis. Feb. 14, 2008) and in Grossman v. Sawdy, 384 B.R. 199 (E.D. Wis. 2008).



                                                 -4-
        The bankruptcy court rejected the trustee’s position and held that the Kimbros are allowed
to deduct the ownership expense amounts in the applicable Local Transportation Standards. The
Panel affirms for the following reasons:
        1. The plain language of 11 U.S.C. § 707(b)(2)(A)(ii)(I) states that a debtor’s means test
deductions “shall be” the amounts specified in the local standards and there is nothing explicit in that
statutory language that requires a debtor to have a debt or lease payment to deduct a vehicle
ownership expense in the bankruptcy means test.
        2. Section 707(b)(2)(A)(ii)(I) does not incorporate the IRM into the bankruptcy means test.
        3. The legislative history demonstrates that Congress intended to incorporate only the
specific IRS expense standards and not the IRM.
        4. There is nothing explicit in the IRS Local Transportation Standard that requires a debtor
to have a debt or lease payment to deduct a vehicle ownership expense in the bankruptcy means test.
        5. The substantial discretion allowed to a revenue officer under the IRM is inconsistent with
the purpose of the means test, which is to utilize a uniform, bright-line test that eliminates judicial
discretion.
        6. The premise of the trustee’s argument– that the IRM does not allow a vehicle ownership
expense when there is no debtor or lease payment– is mistaken; the IRM gives a revenue office
substantial discretion to consider and allow any expenses above the standards.
        7. Contrary to the suggestion in some cases, every debtor who owns a vehicle incurs
expenses arising from the ownership of the vehicle regardless of whether the debtor incurs a debt
or lease payment associated with the vehicle.
        These reasons are discussed more fully below.


        A. The plain language of 11 U.S.C. § 707(b)(2)(A)(ii)(I) states that a debtor’s means test
deductions “shall be” the amounts specified in the local standards and there is nothing explicit in that
statutory language that requires a debtor to have a debt or lease payment to deduct a vehicle
ownership expense in the bankruptcy means test.
        “The starting point in discerning congressional intent is the existing statutory text, and not
the predecessor statutes. It is well established that when the statute’s language is plain, the sole
function of the courts-at least where the disposition required by the text is not absurd-is to enforce



                                                  -5-
it according to its terms.” Lamie v. U.S. Trustee, 540 U.S. 526, 534, 124 S. Ct. 1023 (2004)
(citations omitted).
       Section 707(b)(2)(A)(ii)(I) provides in part:
               The debtor’s monthly expenses shall be the debtor’s applicable
               monthly expense amounts specified under the National Standards and
               Local Standards, and the debtor’s actual monthly expenses for the
               categories specified as Other Necessary Expenses issued by the
               Internal Revenue Service for the area in which the debtor resides.
(emphasis added).
       The plain statutory language of § 707(b)(2)(A)(ii)(I) mandates that the debtor’s expenses
“shall be” those specified in the National and Local Standards. This provision makes very simple
the task of applying the Local and National Standards– just look them up in the tables of the
Standards and enter them into the means test form.
       The statute makes two other clear points. First, the debtor’s monthly expenses also “shall
be” the debtor’s actual expenses for the categories identified as Other Necessary Expenses. This
establishes that Congress knew how to mandate the deduction of actual expenses. Second, Congress
explicitly excluded the National and Local Standards from the set of deductions that are based only
on actual expenses.
       In this regard it is also important to note that § 707(b)(2)(A)(ii)(I) does not specifically
address vehicle ownership expenses at all; nor does it specifically state that to deduct a vehicle
ownership expense, a debtor must be making either payment on a debt secured by the vehicle or a
lease payment on the vehicle. To the contrary, the statute further explicitly states, “Notwithstanding
any other provision of this clause, the monthly expenses of the debtor shall not include any payments
for debts.” This provision alone establishes beyond doubt that Congress intended to allow an
ownership expense even when a debtor has no debt payment on a vehicle.3 If Congress had not so
intended, there would be no reason for this limitation.
       The trustee argues that the debtor’s ownership expense is not “applicable” if the debtor has
no debt or lease payment, and several cases agree. See e.g., Fokkena v. Hartwick, 373 B.R. 645 (D.
Minn. 2997); Babin v. Wilson (In re Wilson), 383 B.R. 729 (B.A.P. 8th Cir. 2008); Ransom v. MBNA



       3
        Most likely, this limitation was included because under 11 U.S.C. § 707(b)(2)(A)(iii), a
deduction is allowed for average monthly payments on secured debts and leases.

                                                 -6-
Am. Bank, N.A. (In re Ransom), 380 B.R. 799 (B.A.P. 9th Cir. 2007). This argument must be
rejected for a number of reasons.
        First, rules of statutory construction require that meaning must be given to a statute’s every
word. Reiter v. Sonotone Corp., 442 U.S. 330, 339, 99 S. Ct. 2326 (1979). Therefore, as succinctly
explained in In re Demonica, 345 B.R. 895 (Bankr. N.D. Ill. 2006) “applicable” expenses is a
different concept than “actual” expenses:
                In order to give effect to every word in the statute, the term “actual
               monthly expenses” cannot be interpreted to mean the same as
               “applicable monthly expenses.” The term “actual monthly expenses”
               refers to the “categories specified as Other Necessary Expenses issued
               by the Internal Revenue Service.” Therefore, the Debtor’s actual
               monthly expenses are relevant only for those categories specified as
               Other Necessary Expenses. Conversely, the term “applicable monthly
               expenses” under the National and Local Standards means something
               other than a debtor’s “actual monthly expenses.”
Id. at 902.4
        Second, in the statutory language, the term “applicable” modifies the phrase “monthly
expense amounts specified under the National Standards and Local Standards.” 11 U.S.C.
§ 707(b)(2)(A)(ii)(I). It does not modify the statutory phrase “debtor’s monthly expenses.” This
difference strongly suggests that a debtor should refer to the Standards and deduct the “applicable”
amount. In re Chamberlain, 369 B.R. 519, 524 (Bankr. D. Ariz. 2007).




        4
         In re Demonica also notes that this position has been adopted in the means test forms and
in the comments to the forms, approved by the Judicial Conference of the United States:

               Again, the committee notes to the official forms provide some
               guidance. “Each of the amounts specified by the IRS in the Local
               Standards are treated by the IRS as a cap on actual expenses, but
               because § 707(b)(2)(A)(ii)(I) provides for deduction in the ‘amounts
               specified under the . . . Local Standards,’ the forms treat these
               amounts as allowed deductions.” (Form B22 committee note para.
               C1) (alteration in original).

Id. at 902. It must also be noted that Form 22C itself requires the debtor to subtract the amount of
actual payment from the expense deduction, but not to enter an amount less than zero. As noted in
the text, if Congress intended the standards to be a cap based on the actual debt or lease payment,
this calculation would not be necessary.

                                                 -7-
       Accordingly, the Panel concludes that the plain meaning of 11 U.S.C. § 707(b)(2)(A)(ii)(I)
allows the debtor to deduct the applicable ownership expense in the IRS Local Transportation
Standard even if the debtor has no debt or lease expense.


       B. Section 707(b)(2)(A)(ii)(I) does not incorporate the IRM into the bankruptcy means test.
       The trustee argues that because Congress incorporated the IRS National and Local Standards
into the bankruptcy means test, Congress must also have intended those standards to be applied in
the bankruptcy means test in the same manner as the IRM applies them in the revenue collection
process. The trustee argues that the IRM allows a taxpayers to deduct only the actual vehicle
ownership expenses.5
       There are three problems with the trustee’s argument. First, as demonstrated in part F of this
opinion below, the trustee has greatly oversimplified the position of the IRM on this point; in fact,
the IRM permits a revenue officer substantial discretion in allowing a taxpayer’s expenses.6


        5
            Section 5.15.1.7 of the IRM, Financial Analysis Handbook, provides in pertinent part:

                  Local Standards: These establish standards for two necessary
                  expenses: housing and transportation. Taxpayers will be allowed the
                  local standard or the amount actually paid, whichever is less.
                          ***
                          B. Transportation– . . . If a taxpayer has a car payment, the
                          allowable ownership cost added to the allowable operating
                          cost equals the allowable transportation expense. If a
                          taxpayer has no car payment only the operating cost portion
                          of the transportation standard is used to figure the allowable
                          transportation expense. Under ownership costs, separate caps
                          are provided for the first car and second car. . . (emphasis
                          added)

       In addition, the note to section 5.15.1.9 of the IRM, Financial Analysis Handbook states:

                         If the taxpayer has no car payment, or no car, question how
                         the taxpayer travels to and from work, grocer, medical care,
                         etc. The taxpayer is only allowed the operating cost or the
                         cost of transportation. (emphasis added.)
       6
          Curiously, in the trustee’s view, if the debtor has even one dollar in debt or lease payments,
the debtor is entitled to the full deduction under the applicable vehicle ownership expense standard.
This is, however, without basis in the IRM.

                                                   -8-
       The second difficulty with the trustee’s argument is that as demonstrated above,
§ 707(b)(2)(A)(ii)(I) does not incorporate the IRM or the Financial Analysis Handbook, or even refer
to them. That by itself is ample grounds to reject the trustee’s argument. But there is more.
Congress could have explicitly incorporated the IRM or the Financial Analysis Handbook into
§ 707(b)(2)(A)(ii)(I). Or, Congress could have drafted § 707(b)(2)(A)(ii)(I) to limit deductible
expenses to actual expenses. It chose to do neither. Instead, as noted above, Congress chose to do
the exact opposite by excluding any debt payments from the debtor’s allowable ownership expense
deduction.
       Congress “says in a statute what it means and means in a statute what it says there[.]”
Connecticut Nat. Bank v. Germain, 503 U.S. 249, 254, 112 S. Ct. 1146, 1149 (1992). As observed
in Chamberlain, 369 B.R. at 523:
               To the contrary, the language of § 707(b)(2)(A)(ii)(I) that the
               “monthly expenses shall be . . . the amounts specified” in the
               Standards states precisely the contrary-that the specified amounts are
               to be used, rather than that they are limits on a number derived from
               some other source. Not only would it take at least one more key word
               for this language to refer to a maximum limit rather than a specified
               amount, but it would require an additional concept or definition-the
               amount or number to which that limit should be applied. For the
               statute to identify one number subject to the maximum limit of
               another number, it would at least have to instruct the reader how to
               identify two numbers– the starting number and the limit. This statute
               only references one number, that derived from the Local Standards.
               The phrase “the debtor’s applicable monthly expense amounts
               specified under the . . . Local Standards” references only one number,
               not two. This structure alone indicates it functions to specify the
               number to be used, rather than a limit to some other unidentified
               number.

               There being no ambiguity or absurdity in reading the statute to define
               the number to be used– the number “specified” in the Local
               Standards– there does not seem to be any reason to pursue the
               analysis further.
Id. See also In re Fowler, 349 B.R. 414, 419 (Bankr. D. Del. 2006).




                                                -9-
        C. The legislative history demonstrates that Congress intended to incorporate only the
 specific IRS expense standards and not the IRM.
        The legislative history of a prior bill that was not enacted can be useful to interpret language
 in a bill that was ultimately enacted. See e.g., Dawson Chemical Co. Rohm & Haas Co., 448 U.S
 176, 204, 100 S. Ct. 2601, 2617 (1980); United States v. Enmons, 410 U.S 396, 404, 93 S. Ct. 1007,
 1012 (1973); Transcontinental & Western Air, Inc. v. Civil Aeronautics Bd., 336 U.S. 601, 606, 69
 S. Ct. 756 (1949). A prior version of the Bankruptcy Abuse Prevention and Consumer Protection
 Act which was not enacted defined “projected monthly net income” for the means test to require a
 calculation of expenses as follows:
                (A) the expense allowances under the applicable National Standards,
                Local Standards, and Other Necessary Expenses allowance (excluding
                payments for debts) for the debtor . . . in the area in which the debtor
                resides as determined under the Internal Revenue Service financial
                analysis for expenses in effect as of the date of the order for relief.
H. R. Rep. 105-540 (May 18, 1998), H.R. 3150, 105th Congress (1998).
       In the amendments that were enacted in 2005, the reference to the Internal Revenue Service
financial analysis was removed. Instead, as noted, the section states that a debtor is allowed to deduct
the “applicable monthly expense amounts specified under the National and Local Standards.”
11 U.S.C. § 707(b)(2)(A)(ii)(I). “The change from the prior version evidences Congress’ intent that
the Courts not be bound by the financial analysis contained in the IRM and lends credence to the
Court’s conclusion that it should look only to the amounts set forth in the Local Standards.” In re
Fowler, 349 B.R. 414, 419 (Bankr. D. Del. 2006).
       In addition, the House Committee Report to the bill that was enacted states, “The bill also
makes substantial changes to chapter 13 by substituting the IRS expense standards to calculate
disposable income. . . . The formula remains inflexible and divorced from the debtor’s actual
circumstances.” Report of the Committee on the Judiciary, House of Representatives, to Accompany
S. 256, H.R.Rep. No. 109-31, pt. 1 at 553 (2005) (emphasis added). See also In re Barr, 341 B.R.
181, 185 (Bankr. M.D.N.C. 2006).
       This legislative history establishes both that Congress was aware that the IRS standards were
not the same as a debtor’s actual expenses and that Congress did not intend to limit the bankruptcy
means test expense deductions to the debtor’s actual expenses.



                                                  -10-
       In In re Alexander, 344 B.R. 742 (Bankr. E.D.N.C. 2006), the court noted that early in the
process of amending the bankruptcy code, chapter 13 trustees recognized that using the new means
test of calculating disposable income would result in some high-income debtors paying less than
under the previous code provisions. The chapter 13 trustees repeatedly made their concerns known
to Congress, but to no avail. Id. at 747 (citing Marianne B. Culhane & Michaela M. White, Catching
Can-Pay Debtors: Is the Means Test the Only Way?, 13 Am. Bankr. Inst. L. Rev. 665, 681 (2005).
“‘[T]his alert, followed by the Legislature’s nonresponse, should support a presumption of legislature
awareness and intention.’” 13 Am. Bankr. Inst. L. Rev. at 681 (quoting Lamie, 540 U.S. at 541, 124
S. Ct. 1023).
       A few courts have argued that to accomplish one of the generally presumed purposes of the
2005 amendments– to pay more to creditors in chapter 13– an actual vehicle payment is required in
order to deduct the applicable amount in the standard for the ownership expense in the bankruptcy
means test. See, e.g. Wilson, 383 B.R. 729. That argument observes that a below-median debtor in
chapter 13 can deduct only actual expenses, so it makes no sense to allow an above-median debtor
to deduct an expense that may be higher than the debtor actually incurs.
       However, this reliance on the general legislative history or intent of BAPCPA misses the point
that the legislative history specific to this amended code section shows that Congress was aware of
the IRM but deliberately chose not to incorporate it into the statute. This reliance also overlooks
another purpose of the 2005 amendments- to create bright-line means test to eliminate judicial
discretion. Accordingly, this argument in these cases must be rejected.


       D. There is nothing explicit in the IRS Local Transportation Standard that requires a debtor
to have a debt or lease payment to deduct a vehicle ownership expense in the bankruptcy means test.
       As noted, the vehicle ownership expense is applicable in the bankruptcy means test through
a statutory incorporation of the IRS Local Standards. Those standards provide for a vehicle
ownership expense deduction based on the debtor’s locale and number of vehicles owned. As in the
statute that incorporates these standards into the means test, there is nothing in the IRS Local
Standards that states that this expense can be deducted only when the debtor has either a debt payment
or a lease payment on the vehicle. The trustee does not contend otherwise.
       In this regard, it is also significant that the IRS has recently announced that it does not believe
that its collection of financial standards in the IRM is applicable in bankruptcy:

                                                  -11-
               Disclaimer: IRS Collection Financial Standards are intended for use
               in calculating repayment of delinquent taxes. These Standards are
               effective on March 1, 2008 for purposes of federal tax
               administration only. Expense information for use in bankruptcy
               calculations can be found on the website for the U. S. Trustee
               Program.
http://www.irs.gov/individuals/article/0,,id=96543,00.html.7
       The website for the U.S. Trustee Program, to which the IRS refers viewers, advises that the
ownership expense amount from the IRS Local Standard is designed for ease of use in completing
the means test form, again suggesting that the applicable amount from the Local Standard is to be
used in the means test form :
               The Ownership Costs component of the Transportation Standards is
               published on a national basis, by number of cars. This information,
               reproduced in a format designed for ease of use in completing these
               bankruptcy forms, is available at the following link.8
http://www.usdoj.gov/ust/eo/bapcpa/20070201/meanstesting.htm.
       E. The substantial discretion allowed to a revenue officer under the IRM is inconsistent with
the purpose of the means test to adopt a uniform, bright-line test that eliminates judicial discretion.
       Congress intended that there be uniform and readily-applied formula for determining when
the bankruptcy court should presume that a debtor’s chapter 7 petition is an abuse and for determining
an above- median debtor’s disposable income in chapter 13. By explicitly referring to the National
and Local Standards, Congress incorporated a table of standard expenses that could be easily and
uniformly applied; Congress intended that the court and parties simply utilize the expense amount
from the applicable column based on the debtor’s income, family size, number of cars and locale.
The amounts are entered into the means test form and a determination of disposable income is
accomplished without judicial discretion. The clear policies behind the means test were the uniform
application of a bright-line test that eliminates judicial discretion. Plainly, Congress determined that
these policies were more important than accuracy.




        7
          The website states, “The revised standards are effective for financial analysis conducted on
 or after March 1, 2008.” Id.
        8
         The “following link” refers to the viewer to a choice of census regions by which the Local
 Transportation Standards are organized.

                                                  -12-
          However, if the IRM were used to determine the amounts of expenses, as the trustee argues,
the means test would of necessity again be a highly discretionary test, because under the IRM, a
revenue officer is afforded significant discretion in determining a taxpayer’s ability to pay a tax debt.
Many paragraphs illustrate this extent of this discretion, as the extended list below demonstrates.
          The IRM first sets “Expectations,” and in paragraph 6 of section 5.15.1.1, states:
                 The standard amounts set forth in the national and local guidelines are
                 designed to account for basic living expenses. In some cases, based
                 on a taxpayers individual fact’s [sic] and circumstances, it may be
                 appropriate to deviate from the standard amount when failure to do
                 so will cause the taxpayer economic hardship. (emphasis added)
          Then, in an “Overview” of allowable expenses, paragraph 1 of section 5.15.1.7 provides:
                 Allowable expenses include those expenses that meet the necessary
                 expense test. The necessary expense test is defined as expenses that
                 are necessary to provide for a taxpayer’s and his or her family’s
                 health and welfare and/or production of income. The expenses must
                 be reasonable. The total necessary expenses establish the minimum a
                 taxpayer and family needs to live.
          In describing the application of the local standards for housing, paragraph 4 of section 5.15.1.7
states:
                 A. Housing– Standards are established for each county within a state.
                 When deciding if a deviation is appropriate, consider the cost of
                 moving to a new residence; the increased cost of transportation to
                 work and school that will result from moving to lower-cost housing
                 and the tax consequences. The tax consequence is the difference
                 between the benefit the taxpayer currently derives from the interest and
                 property tax deductions on Schedule A to the benefit the taxpayer
                 would derive without the same or adjusted expense. (emphasis added)
          In addressing a third type of “necessary expenses,” which includes “other expenses,”
paragraph 5 of section 5.15.1.7 explicitly gives the collection agent discretion in analyzing this
expense. It states, “Other expenses may be allowed may be allowed if they meet the necessary
expense test. The amount allowed must be reasonable considering the taxpayer’s individual facts and
circumstances.”
          A revenue officer’s discretion in allowing expenses above the national and local standards is
made complete in paragraph 7 of section 5.15.1.7:
                 National local expense standards are guidelines. If it is determined
                 a standard amount is inadequate to provide for a specific taxpayer’s
                 basic living expenses, allow a deviation. Require the taxpayer to

                                                    -13-
               provide reasonable substantiation and document the case file.
               (emphasis added)
       A revenue officer even has discretion in counting the number of persons allowed in applying
the applicable standards. Paragraph 8 of Section 5.15.1.7 states:
               Generally, the total number of persons allowed for national standard
               expenses should be the same as those allowed as dependents on the
               taxpayer’s current year income tax return. Verify exemptions claimed
               on taxpayer’s income tax return meet the dependency requirements of
               the IRC. There may be reasonable exceptions. Fully document the
               reasons for any exceptions. For example, foster children or children
               for whom adoption is pending. (emphasis added.)
       An additional instance of discretion is found in the application of the national standards,
which cover apparel, food, housekeeping supplies, personal care products and services, and
miscellaneous. As to these, paragraph 3 of section 5.15.1.8 states, “A taxpayer that claims more than
the total allowed by the national standards must substantiate and justify each separate expense of the
total national standard amounts.”
       Addressing the local standard for housing and utilities, paragraph 1.A. of section 5.15.1.9
provides:
               The utilities include gas, electricity, water, fuel, oil, bottled gas, trash
               and garbage collection, wood and other fuels, septic cleaning, and
               telephone. Housing expenses include: mortgage or rent, property
               taxes, interest, parking, necessary maintenance and repair,
               homeowner’s or renter’s insurance, homeowner dues and
               condominium fees. Usually, this is considered necessary only for the
               place of residence. Any other housing expenses should be allowed
               only if, based on a taxpayer’s individual facts and circumstances,
               disallowance will cause the taxpayer economic hardship. (emphasis
               added)
       Similarly, in addressing the local standard for transportation expenses, paragraph 1.B. of
section 5.15.1.9 states that this standard covers specified expenses, but that alternatives should be
considered:
               Vehicle insurance, vehicle payment (lease or purchase), maintenance,
               fuel, state and local registration, required inspection, parking fees,
               tolls, driver’s license, public transportation. Transportation costs not
               required to produce income or ensure the health and welfare of the
               family are not considered necessary. Consider availability of public
               transportation if car payments (purchase or lease) will prevent the tax
               liability from being paid in part or full. Public transportation costs

                                                   -14-
                could be an option if it does not significantly increase commuting time
                and inconvenience the taxpayer. (emphasis added)
        Finally, in addressing “other expenses,” including accounting fees, legal fees, charitable
contributions, child care, court-ordered payments, dependent care expenses, education, health care,
involuntary deductions, life insurance, secured debts, unsecured debts, telephone, student loans,
internet service, and loans to pay federal taxes, paragraph 1 of section 5.15.1.10 states:
                Other expenses may be considered if they meet the necessary expense
                test– they must provide for the health and welfare of the taxpayer
                and/or his or her family or they must be for the production of income.
                This is determined based on the facts and circumstances of each case.
                (emphasis added)
        In further addressing other expenses, paragraph 3 of section 5.15.1.10 provides:
                The amount allowed for necessary or conditional expenses depends on
                the taxpayer’s ability to full pay the liability within five years and on
                the taxpayer’s individual facts and circumstances. If the liability can
                be paid within 5 years, it may be appropriate to allow the taxpayer the
                excessive necessary and conditional expenses. If the taxpayer cannot
                pay within 5 years, it may be appropriate to allow the taxpayer the
                excessive necessary and conditional expenses for up to one year in
                order to modify or eliminate the expense. (emphasis added)
        These excerpts from the IRM Financial Analysis Handbook overwhelmingly establish that the
process of applying the guidelines of the IRM for tax collection purposes is a highly discretionary
process for a revenue officer. In reality, that process is much like the highly discretionary process that
bankruptcy judges had utilized before the 2005 amendments to the bankruptcy code when determining
the debtor’s net disposable income under 11 U.S.C. § 1325(b). Mancl v. Chatterton (In re Mancl),
381 B. R. 537, 541-42 (W.D. Wis. 2008); In re Spraggins, 07-24728, __ B.R. __, 2008 WL 1744576
at *2 (Bankr. E.D. Wis. Apr. 11, 2008) (recognizing “Congressional intent to employ a bright-line
test for disposable income by removing bankruptcy court ‘value judgments’ concerning the debtor's
lifestyle”). See also In re Behlke, 358 F.3d 429 (6th Cir. 2004) (pre-BAPCPA case discussing
discretionary nature of determining disposable income in context of § 707(b) dismissal for cause).
        There is, however, nothing to suggest that Congress intended that highly discretionary process
to continue after the 2005 amendments. To the contrary, all of the evidence suggests that Congress
intended quite otherwise. Use of the IRM, as argued by the trustee, would clearly undermine the
utility of the national and local standards in facilitating a uniform bright-line test that eliminates
judicial discretion. This case is therefore about much more than the single issue of whether debtors

                                                   -15-
like the Kimbros may deduct the Local Standard for vehicle ownership expenses. If the trustee’s view
of the means test is sustained, then Congress would have failed in achieving its goals in adopting the
means test, and courts would return to reviewing all above-median debtors’ expenses on a case by
case, discretionary basis.


       F. The premise of the trustee’s argument– that the IRM does not allow a vehicle ownership
expense when there is no debtor or lease payment– is mistaken; the IRM gives a revenue office
substantial discretion to consider and allow any expenses above the standards.
       The IRM makes it clear that for tax collection purposes, the standards are only guidelines.
Paragraph 7 of section 5.15.1.7, IRM, states, “National local expense standards are guidelines. If it
is determined a standard amount is inadequate to provide for a specific taxpayer’s basic living
expenses, allow a deviation.”
       It is also worth repeating the quote from the Overview, paragraph 1, section 5.15.1.7:
               Allowable expenses include those expenses that meet the necessary
               expense test. The necessary expense test is defined as expenses that
               are necessary to provide for a taxpayer’s and his or her family’s
               health and welfare and/or production of income. The expenses must
               be reasonable. The total necessary expenses establish the minimum a
               taxpayer and family needs to live.
       It is true that under the sections of the IRM quoted in footnote 4 above, vehicle ownership
expenses are not generally allowed if the debtor has no debt or lease payment, but the trustee’s
premise that the IRM never allows a revenue officer to consider and allow such expenses in such
circumstances is plainly mistaken. If necessary to provide for a taxpayer’s basic living expenses or
for reasons of health and welfare, ownership expenses should be allowed under the IRM.
       This feature of the IRM, ignored by the trustee, reinforces this crucial point: Because
discretion is built into the very fabric of the IRM, including the issue of allowing vehicle ownership
expenses, applying the IRM to the bankruptcy means test, as the trustee advocates, would not achieve
the result that the trustee seeks- to prohibit a deduction in the bankruptcy means test when the debtor
has no debt or lease payment. Rather, it would simply return bankruptcy judges to determining this
expense (and all others) on a case by case, discretionary basis, in direct contravention of Congress’s
stated goals in enacting the means test.




                                                 -16-
       G. Contrary to the suggestion in some cases, every debtor who owns a vehicle incurs
expenses arising from the ownership of the vehicle regardless of whether the debtor incurs a debt or
lease payment associated with the vehicle.
       Several cases assert that in the absence of any vehicle debt or lease payments, the debtor has
no ownership expense and thus the Local Transportation Expense is properly disallowed. See Wilson,
383 B.R. at 732; Fokkena, 373 B.R. at 652.
       This argument ignores the economic realities of vehicle ownership. The expenses of vehicle
ownership are the fixed expenses that an owner incurs that naturally arise from ownership regardless
of the vehicle’s operation. By that definition, neither debt payments or lease payments are ownership
expenses. Lease payments are not ownership expenses because by definition the debtor has no
ownership. Debt payments are not ownership expenses because they are more naturally related to the
necessities of financing the purchase. The expenses relating to vehicle ownership are the expenses
for depreciation, insurance , licensing fees and taxes, each of which is a consequence of ownership
and is incurred without regard to vehicle use. Ultimately, every vehicle owner incurs ownership
expenses, and that is so regardless of debt or lease payments.
       Certainly, those ownership expenses will vary widely from case to case. Plainly a debtor
owning a newer vehicle will incur a much greater depreciation expense than a debtor owning an older
vehicle, and some vehicles depreciate faster than others. Also, debtors’ insurance and tax expenses
will vary.   But the policy of the means test simply does not contemplate such individual
determinations. As noted, in enacting the 2005 amendments, Congress decided to give a higher
priority to expediency and uniformity than to accuracy.
       Because the ownership of a vehicle always involves an expense, it was neither absurd nor
irrational for Congress to allow a uniform deduction in the bankruptcy means test for an ownership
expense even when there is no debt or lease payment. To the contrary, given the goals, it was entirely
appropriate for Congress to incorporate a uniform standard that recognizes an ownership expense for
all debtors that own vehicles.9

        9
          There is a justified concern that under this ruling, a debtor might claim a deduction for “a
car rusting away in the back yard.” In re Ross-Tousey, 368 B.R. 762, 768 (E.D. Wis. 2007). Indeed,
a debtor might purchase such a car for a nominal sum in anticipation of filing bankruptcy. See In
re Moorman, 376 B.R. 694, 699 (Bankr. C.D. Ill. 2007).
        The reality is that people own cars for many reasons other than for transportation, such as to
be a source of parts for other cars or to be collector cars for investment and recreation. In each case,

                                                 -17-
                                     IV.    CONCLUSION
       The Panel holds that in the bankruptcy means test, a debtor may deduct an ownership expense
for a vehicle regardless of whether the debtor has a debt or lease payment on that vehicle. The
bankruptcy court’s decision is AFFIRMED.




however, the ownership expense for the bankruptcy means test is allowable only if the car is used
for transportation, because the ownership and operating expenses are components of the
transportation expense. In addition, as to the debtor who seeks to purchase a bankruptcy means test
ownership deduction for the cost of a nominal sum of money and a space of a few square feet in the
backyard, 11 U.S.C. § 105(a) still allows the bankruptcy court to prevent such an abuse of its
process, when proven. Marrama v. Citizens Bank of Mass., ___ U.S. ___, 127 S. Ct. 1105 (2007)
(relying on “the broad authority granted to bankruptcy judges to take any action that is necessary or
appropriate ‘to prevent an abuse of process’ described in 105(a) of the Code.”)


                                                -18-
       THOMAS H. FULTON, Bankruptcy Appellate Panel Judge, dissenting.
       The other members of this Panel (the “Panel”) have made a superb effort to weave a
seemingly robust cloth from somewhat thin threads. I must, however, respectfully dissent. In doing
so, I join with the majority of the bankruptcy courts and the overwhelming majority of appellate
courts across the United States that have considered this issue, including the 8th and 9th Circuit
BAPs. See, e.g., In re Wilson, 383 B.R. 729, 732-33 (B.A.P. 8th Cir. 2008) (“[W]hile bankruptcy
courts have been divided on this issue, the appellate courts considering this question have all
concluded that a vehicle ownership expense is only applicable if a debtor is in fact incurring such an
expense.”). Numerous jurists have considered this issue, and their rationales both for and against
permitting debtors to deduct more than actual vehicle ownership expenses vary to some extent. See,
e.g., Grossman v. Sawdy (In re Sawdy), 384 B.R. 199, 202 (E.D. Wis. 2008). I will not retrace the
well-worn paths around both sides of the issue. Rather, I would simply note my own particular
concerns.
       It is my belief that the Panel primarily falls short in misinterpreting the word “applicable” in
the first sentence of 11 U.S.C. § 707(b)(2)(A)(ii)(I).           The first sentence of 11 U.S.C.
§ 707(b)(2)(A)(ii)(I) states that “[t]he debtor’s monthly expenses shall be the debtor’s applicable
monthly expense amounts specified under the National Standards and Local Standards, and the
debtor’s actual monthly expenses for the categories specified as Other Necessary Expenses issued by
the Internal Revenue Service for the area in which the debtor resides . . . .” (emphasis added.) The
Panel believes that “applicable” simply directs the debtor to pick out and use the dollar amounts set
forth in tables published by the Internal Revenue Service (“IRS”) as part of its National Standards and
Local Standards without reference to the IRS’s guidelines for using those tables. In the Panel’s
words, the debtor will “just look them up.”
       I believe, however, that if “applicable” is to have any meaning at all in the context of
11 U.S.C. § 707(b)(2)(A)(ii)(I)10, the debtor must look to the IRS’s guidelines regarding the use of
the tables set forth in the National Standards and Local Standards to determine the amount of




        10
          As the Panel correctly notes, rules of statutory construction require that meaning must be
given to a statute’s every word. Reiter v. Sonotone Corp., 442 U.S. 330, 339, 99 S. Ct. 2326 (1979).

                                                 -19-
expenses that may be “applied” to reduce the debtor’s monthly income.11 If Congress really did
intend that the debtor just pull numbers from tables, the word “applicable” would not have been
necessary in the first sentence of 11 U.S.C. § 707(b)(2)(A)(ii)(I). The provision could simply have
been written omitting the word “applicable” without changing its meaning, as follows: “The debtor’s
monthly expenses shall be the debtor’s monthly expense amounts specified under the National
Standards and Local Standards....” On the other hand, Congress’ use of the word “applicable” makes
a great deal of sense if one believes that Congress intended that the IRS’s guidelines be used in
consulting the National Standards and Local Standards.
       Moreover, although the Panel believes that the relevant dollar amounts can be obtained from
the National Standards and Local Standards if one were to “just look them up,” that belief carries with
it a built-in prejudice colored by the Panel’s desired result. It is, simply put, boot-strapping. If one
were to view the tables in the National Standards and Local Standards neutrally, it becomes obvious
that one cannot really “just look up” dollar amounts in the tables without either referring to IRS
guidelines for using the tables12 or imposing pre-existing assumptions about how the tables are to be
navigated.
       Consider the table titled “Operating Costs” in the IRS Local Standards for “transportation.”13
The table consists of a heading, “Operating Costs,” a column labeled “One Car” with dollar amounts
beneath, a column labeled “Two Cars” with dollar amounts beneath, and a column appearing to be
divided by region–Northeast, Midwest, South, West–and further divided by what appears to be larger
cities or metropolitan areas. The table alone does not describe the geographical boundaries of each
“region” or “city.” Also, the table by itself does not tell a reader what the dollar amounts mean or


        11
            Some of these guidelines are included in the IRS Collection Financial Standards, available
 at http://www.irs.gov/individuals/article/0,,id=96543.00, which also include the tables that the Panel
 would have debtors use to “just look up” their expenses. Guidelines also are contained in greater
 detail in the Internal Revenue Service Manual, Financial Analysis Handbook, Pt. 5, ch 15 § 5.15.1.7,
 available at http://www.irs.gov/irm/part5/ch15s 01.html#d0e200408. In general, the IRS intends
 that dollar amounts set forth in the tables in the Local Standards for “transportation” expenses be
 used as “caps”–the person in question may claim actual expenses up to those amounts.
        12
          Notably, guidelines appearing on the same page as the table also state that “[t]he taxpayer
 is allowed the amount actually spent, or the standard, whichever is less.” Surely the Panel does not
 suggest that we apply only some of the instructions and explanations and ignore others.
        13
             Available at http://www.irs.gov/businesses/small/article/0,,id=104623,00.html.

                                                  -20-
how they are to be used. One must use the IRS guidelines–at least some of which appear on the same
page as the table–first to locate the appropriate geographical location heading (i.e., which Region or
“city”) and then to determine whether and how either amount is “applicable.”
       The Panel also makes too much of Congress’s use of the phrase “actual expenses” in
11 U.S.C. § 707(b)(2)(A)(ii)(I) with regard to “the categories specified as Other Necessary Expenses
issued by the Internal Revenue Service for the area in which the debtor resides[.]” The Panel
contrasts Congress’s use of the phrase “applicable monthly expense amounts” with respect to the IRS
National Standards and Local Standards and comes to the unwarranted conclusion that Congress must
have intended that the two phrases have opposite, rather than merely different, meanings. I, however,
believe that Congress intended and used the phrases “applicable monthly expense amounts” in the
former case and “actual expenses” in the latter case simply in recognition of the differing ways in
which the IRS uses the National Standards and Local Standards versus the Other Necessary Expenses
categories.
       According to IRS guidelines, depending on the type of expense being considered, persons may
claim the full amount set forth in the pertinent table–e.g., National Standards for “food, clothing and
other expenses” and “out-of-pocket health care expenses”–or actual expenses up to the cap amount
set forth in the pertinent table–e.g. Local Standards for “housing and utilities” and “transportation.”
Thus, it would have made no sense for Congress to have used the phrase “actual expenses” in the
context of the National Standards and Local Standards because the expenses ultimately allowed might
or might not be the person’s actual expenses, depending on the nature of the expense and, in the case
of housing, utilities and transportation expenses, whether the same exceeded the caps. Conversely,
it makes eminent sense for Congress to have used “actual expenses” in the context of Other Necessary
Expenses because the allowable expenses there are limited to the person’s actual expenses that he or
she can demonstrate are reasonable under that person’s particular facts and circumstances.
       Finally, the Panel’s interpretation of the first sentence of 11 U.S.C. § 707(b)(2)(A)(ii)(I) will
lead to results that are both absurd and at odds with Congressional intent. A simple illustration
demonstrates this. Suppose, for example, that there is a debtor with nominal actual monthly expenses
whose “current monthly income” multiplied by twelve is just one dollar above the applicable median
income. Given the Panel’s interpretation of 11 U.S.C. § 707(b)(2)(A)(ii)(I), that debtor would be
required to claim the full amounts set forth in the tables in the National Standards and Local
Standards even though that debtor’s actual expenses are significantly lower. When subtracted from

                                                 -21-
the debtor’s “current monthly income,” such table-derived amounts could cause the debtor’s
“disposable income” to be negative and, therefore, insufficient to fund a confirmable Chapter 13 plan,
whereas subtracting the debtor’s actual expenses would not have such an effect. Contrast this result
with a second debtor who has exactly the same actual expenses as the first debtor, and whose current
monthly income multiplied by twelve is just one dollar less than that of the first debtor. The second
debtor would be allowed to use his/her actual expenses to derive his/her disposable income and,
accordingly, would be able to fund a confirmable Chapter 13 plan. The absurdity becomes readily
apparent–a higher income debtor would be unable to propose a confirmable Chapter 13 plan whereas
a slightly lower income debtor with exactly the same expenses would be able to propose a
confirmable Chapter 13 plan.
       Even if the above-median debtor could propose a confirmable Chapter 13 plan, he or she
would be paying less to his/her creditors than the under-median income debtor. Thus, not only would
the result be absurd, it would run directly contrary to Congressional intent. As noted by the 8th
Circuit BAP in In re Wilson, “[a]lthough the legislative history to BAPCPA is scant and often
difficult to piece together, there can be no doubt that the purpose of these amendments to §§ 707(b)
and 1325(b) was to require above-median income debtors to make more funds available to their
unsecured creditors, and to do so by limiting the court’s authority to allow expenses.” In re Wilson,
383 B.R. at 733.
       As has been said many times before, nearly to the point of becoming a cliche, reasonable
minds can and will differ. For the foregoing reasons, I respectfully dissent from the Panel’s decision.




                                                 -22-
