The
Arizona Bankruptcy Exemptions aren't written in stone. They were written by men and women, and interpreted by men and women, and all of those folks have had opinions about what should or should not be exempt.
And, as we know from the movie "Roadhouse", opinions differ!
Over the last 30 years, I've gotten to watch a bunch of exemption battles rage. On the one hand, there was a spirited debate in the case law about whether
11 USC 522 (m) meant that a husband in a bankruptcy case got
his list of exempt property, and that the wife also got
her list of exempt property.
I'll spare you the suspense; the "double-dippers" won, and that was the correct result.
And anytime exemptions change, there are arm-wrestling matches about
when the new exemption becomes effective, and that's always good for a few thousand gallons of ink.
There have also been exemption challenges to the concept of the "opt-out" exercised by the Arizona Legislature; and frankly, one thing that our legislature ought to do sometime soon is to permit Arizona Residents to
choose between
the laundry list of Federal Bankruptcy Exemptions, and the Arizona Bankruptcy Exemptions, as some other states do (although, to be fair, most states are "opt-out" states).
Another recently hot topic is which state's exemption may apply in a particular case, and there's a website called Exemptions Express that's very helpful in the analysis of that issue; that's why a trustee will ask you whether you have been an Arizona Resident for a full two years prior to filing; if you have not, you may be forced to use the laws of your prior state, or the Federal Exemptions (notwithstanding the opt-out clause), or you may get to use the
Arizona Bankruptcy Exemption List.
But the
next big exemption fight is going to be over this topic: are computers "tools of the trade" under the Arizona Exemption Statutes? And, if so, are there
additional requirements, not in the case law and not in the statute, necessary to qualify them as exempt?
I plan to post all of the "tools of the trade" cases here on my blog, so you can decide for yourself.
This is not an academic concern!
One of the smart Arizona Bankruptcy Trustees has
served notice that he will be objecting to every computer claimed as a tool of the trade in his cases (about 1/20th of the cases that get filed around here) unless they meet stringent requirements that I have not yet found in the caselaw or the stature.
In most cases I've seen and filed lately, computers (and used computers have some value, although very little) have been listed as tools of the trade for just about everybody.
After all, think about being a lawyer without a computer; would it be possible? Well, you couldn't be an
Arizona Bankruptcy Attorney, because we're
required to file our bankruptcy cases electronically.
And you obviously can't be a bookkeeper, accountant or CPA without a computer, right?
How about a schoolteacher? Is a schoolteacher required to file his lesson plans electronically?
Even a truck driver is often required to monitor his driving schedule online, which seems to me to make that computer a tool of the trade; and doubly so if he uses it to makes his mandatory notations as he drives.
A dentist could certainly not practice effectively without the practice management software that my dentist uses, which also permits him to instantly email dental x-rays inter-office; tool of the trade? I think so!
In addition, I can think of a lot of professionals who have confidential data on their computers; I don't know how happy a trustee would be if he were sued by an angry patient under the HIPPA Statutes. It would probably blow over, but you never know how a lawsuit will shake out. Ever.
Now, there may be people who can work without owning a computer these days, but I'm hard pressed to think of a lot of folks who don't use a computer extensively in the course of their jobs.
Who will win the computer exemption wars?
I have no idea!
Because an objection to exemptions is resolved in a careful, measured pace in most cases, and the appeal from an adverse decision can take much longer. Think
years, not weeks or months.
The case law is fairly clear that
Arizona Exemptions are to be construed
liberally in favor of the debtor; there is not a requirement in the tools of the trade exemption that
I recall, as I sit here, that the tool be used
exclusively for employment, or even that it be absolutely
mandatory for employment; there is
certainly no statutory requirement that a statement from an employer must be obtained in order to maintain the exemption.
Those may be useful
tax analysis concepts, but I think they are far less useful in
bankruptcy exemption analysis.
After all, a carpenter would normally list his tools as tools of the trade, and there would normally not be an issue about that. But if somewhere in the statute there is a requirement that the tools be used
exclusively at work, the carpenter could
lose that exemption if he hammers a nail in his wall to hang a picture .to hang a picture for his wife; and that is an absurd, punitive result, utterly at odds with the intention of the drafters of the Arizona Exemption Statute.
And an accountant would normally list a computer as a tool of the trade with no nevermind, but under the trustee's proposed restrictions on that exemption, if his kid also used that computer to do
homework, the Bankruptcy Court should sustain an objection to the exemption of that computer; and that is
another upside-down and backwards result.
I am going to reprint the cautionary memo from the smart Arizona Bankruptcy Trustee in its entirety when I figure out how to do that, so you can read it and make up your mind which side you want to cheer for in our upcoming Bankruptcy Exemption Wars!
p.s. this will be a non-issue in most cases; recall that a trustee will normally not want to fight about exemptions in a case where the arguably non-exempt property will net the estate less than $800; but we'll still get to see a lot of activity in this area if the smart trustee in question really wants to fight in
every case where a computer worth $100 is listed as an exempt tool of the trade, unless the debtor would be fired from their job without the computer, and unless the computer is used
exclusively for work.
Seems a little harsh to me; but that's probably just me.
But you'll be able to do the analysis for yourself as you see the cases on exemptions in Arizona; I'll have Nina dig 'em out of fastcase, and you'll see 'em in all their glory!
p.s. it is useful to recall, as well, that the value of a computer can be determined accurately to a gnat's eyelash, for the simple reason that the computer can be used to surf the internet over to Craig's List, or similar locations that describe and sell used merchandise. And a computer, with outdated software which cannot be legally transferred, which has no warranty or guarantee, and which is missing the carrying case and has a crack in the outside of the computer shell itself, is probably darn near worthless, whether it is exempt or not.
And worthless assets in a bankruptcy case are generally not
administered (taken and sold) by a trustee unless the trustee has far too much time on his or her hands.