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In Re Baker - Reply To Amicus Brief of Nixon Peabody
In Re Baker - Reply To Amicus Brief of Nixon Peabody
: 09-13144-H
__________________________________________________________________
SARAH E. BAKER,
Appellant.
v.
Appellee.
________________________________________/
ARGUMENT .............................................................................................................4
II. Amicus Curiae Nixon Peabody LLP grossly misportrays I.R.C. § 401(a) as
only qualifying profit-sharing plans more than one employee in the face of
numerous code provisions clearly indicating that I.R.C. § 401(a) also applies
to plans containing a single employee ............................................................. 4
III. Amicus Curiae Nixon Peabody LLP asserts that Debtor made arguments
Debtor did not actually assert and, worse, suggests that the lower courts
considered evidence when the record clearly does not contain an evidentiary
hearing ............................................................................................................. 6
CONCLUSION ..........................................................................................................7
Found at:
{2161-2161.001 00045468.DOC;1}2 The Florida Legal Blog
www.floridalegalblog.org
TABLE OF AUTHORITIES
Cases
None
State Statutes
Federal Statutes
Found at:
{2161-2161.001 00045468.DOC;1}3 The Florida Legal Blog
www.floridalegalblog.org
ARGUMENT
Amicus Curiae Nixon Peabody LLP argues that I.R.C. § 401(a) does not
Sarah Baker’s (“Debtor”) plan. Amicus Curiae Nixon Peabody LLP states that
I.R.C. § 401(a) does not allow exemption when “it is created by an employer for
Curiae Nixon Peabody LLP in Support of Appellee and for Affirmance p. 5). This
argument flies in the face of numerous provisions within I.R.C. § 401 that
owner-employee.
“qualified unless the plan meets [certain] diversification requirements,” but I.R.C.
401(a)(10)(A) provides that “in the case of any plan … for employees some or all
1
I.R.C. § 401(a)(35)(E)(iv)(I) defines a “one-participant retirement plan” as “a retirement plan that on the first day
of the plan year covered only one individual … and the individual owned 100 percent of the plan sponsor (whether
or not incorporated).” Found at:
{2161-2161.001 00045468.DOC;1}4 The Florida Legal Blog
www.floridalegalblog.org
of whom are owner-employees (as defined in subsection (c)(3)2), a trust forming
part of such plan shall constitute a qualified trust under this section only if the
individual” and I.R.C. § 401(d) states that “a trust forming part of a pension or
shall constitute a qualified trust” if certain conditions are met. The Internal
Quite simply, I.R.C. § 401(a) incorporates and contemplates the concept that
a single, self-employed person can be the sole participant in a qualified plan. But,
broadly, the requirement under I.R.C. § 401(a) that qualification is only available
where the plan is “for the exclusive benefit of … employees” was not meant to
limit application to plans with multiple employees, but to subsume the concept that
a plan covers a single employee. Any other interpretation would render the owner-
2
I.R.C. § 401(c)(3) defines an “owner-employee” as “an employee who owns the entire interest in an
unincorporated trade or business.” Found at:
{2161-2161.001 00045468.DOC;1}5 The Florida Legal Blog
www.floridalegalblog.org
II. Amicus Curiae Nixon Peabody LLP asserts that Debtor made
arguments Debtor did not actually assert and, worse, suggests that the
lower courts considered evidence when the record clearly does not
contain an evidentiary hearing.
Support of Appellee and for Affirmance, Amicus Curiae Nixon Peabody LLP
begins planting the notion that the lower courts considered evidence as to plan
operation and that Debtor argued that plan compliance was immaterial. But, the
lower courts never held an evidentiary hearing in this case. Instead, the bankruptcy
court ruled as a matter of law that Debtor’s plan and its assets were not exempt.
While Debtor contends that the lower courts erred in interpreting the applicable
Furthermore, the notion that Debtor argues that as a matter of law that a plan
argument of that type and logically could not have as the bankruptcy court ruled
3
Regardless, Debtor asserts that the plan was compliant as administered by the unrelated plan administrator and as
the plan assets were held by an independent custodian under the control of an independent trustee, none of which
was disputed by the trustee or put at issue by or before the bankruptcy court. Found at:
{2161-2161.001 00045468.DOC;1}6 The Florida Legal Blog
www.floridalegalblog.org
CONCLUSION
Wherefore, Debtor respectfully moves the court to overrule the United States
Bankruptcy Court’s Order, to rule that FLA. STAT. ch. 222.21 (2)(a)(1) provides
an exemption for Keough (HR-10) plan assets, and to declare that Debtor’s
Keough plan assets are exempt under FLA. STAT. ch. 222.21 (2)(a)(1) and not
Respectfully Submitted,
Found at:
{2161-2161.001 00045468.DOC;1}7 The Florida Legal Blog
www.floridalegalblog.org
CERTIFICATE OF COMPLIANCE WITH RULE 32(a)
because this brief contains 1,174 words, excluding the parts of the brief
exempted by Def.R.App.P.32(a)(7)(B)(iii).
2. This brief complies with the typeface requirements of Fed.R.App.P.32 (a) (5)
and the type style requirements of Fed.R.App.P32(a)(6) because this brief has
Found at:
{2161-2161.001 00045468.DOC;1}8 The Florida Legal Blog
www.floridalegalblog.org
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true copy of the foregoing has been furnished by
regular U.S. Mail on this 16th day of October 2009 to the following counsel of
record:
Found at:
{2161-2161.001 00045468.DOC;1}9 The Florida Legal Blog
www.floridalegalblog.org