This is a proceeding brought by a bankrupt electrical worker to determine the amount of his pension plan subject to a federal tax lien. Pursuant to Rule 56, Fed. R. Civ.Proc., I find for the Defendant United States.

Factual Background and Jurisdiction

         The Plaintiff filed for chapter 13 bankruptcy on October 13, 1987. He owed the Internal Revenue Service (IRS) $84,632.94 at that time. The IRS had filed tax liens prior to the bankruptcy. The debtor concedes the IRS has a secured claim of at least $12,000.00 on non-pension property and a priority claim of $20,287.77. Anderson is a member of the International Brotherhood of Electrical Workers (IBEW) which has a pension plan arising under the Employment Retirement Income Security Act of 1974 (ERISA), 29     2 ABR 83  U.S.C. § 1001 et. seq. and 26 U.S.C. §§ 1 et.seq. The pension plan contains standard anti-assignment spendthrift provisions found in ERISA plans. Pursuant to the terms of the IBEW collective bargaining agreements, participating employers must make fringe benefit contributions to the pension plan at specified hourly rates for employees' pension benefits. Anderson had $83,500.00 in employer contributions to his pension plan as of the date of his chapter 13 petition. Anderson has not retired and is not currently receiving pension benefits. Anderson contends that the balance of the IRS's claim is not secured by the pension plan.

         This court has jurisdiction pursuant to 28 U.S.C. § 157(b)(2)(B) and (C) over this core proceeding.

Property of the Estate

         Anderson's interest in his pension plan is not property of the estate under
11 U.S.C. § 54l(c)(2). 11 U.S.C. § 541(c) (2) provides:

A restriction on the transfer of a beneficial interest of the debtor in a trust that is enforceable under applicable non-bankruptcy law is enforceable in a case under this title.

"Applicable non-bankruptcy law" means Alaska law. In re Daniel, 771 F.2d 1352, 1360 (9th Cir. 1985), cert. denied, 475 U.S. 1016 (1986); In re Kincaid, 917 F.2d 1162, 1166 (9th Cir. 1990). I conclude Alaska law allows restrictions on transfers of beneficial interests through spendthrift trusts.     2 ABR 84 

         Trusts have long been allowed in Alaska. From Territorial days to the present post-statehood period, Alaska courts have consistently recognized the validity of trusts. Hendrichs v. Morgan, 3 Alaska Fed. 244, 167 F. 106, 92 C.C.A. 558 (C.C.A. Alaska 1909); Kapsamalis v. Lechner & Skeen, 5 Alaska 75 (1914); Hubbard v. Hubbard, 5 Alaska 478 (1916); Mullen v. Mullen, 14 Alaska 476, 117 F.Supp. 538 (D. Alaska 1954); Amidon v. State, 565 P.2d 1248, (Alaska 1977); Mitchell v. Mitchell, 655 P.2d 748 (Alaska 1982); Aiello v. Clark, 680 P.2d 1162 (Alaska 1984).

         While the validity of spendthrift trusts has not been subject to definitive treatment by Alaska's legislature or its state courts, all indications are that such spendthrift trusts are valid in Alaska. Banks and trust companies may act as trustees of spendthrift trusts. A.S. 06.05.180; A.S. 06.25.140. A.S. 09.38.017 purports to grant an exemption to retirement plans. Subsection (d) of that statute states that a retirement plan "exempt from claims under (a) of this section is conclusively presumed to be a spendthrift trust under this section."

         The Restatement (Second) of Trusts (1959), has been repeatedly cited with approval in trust cases by the Alaska Supreme Court. Thomson v. Wheeler Construction Company, 385 P.2d 111 (Alaska 1963); Vance v. Estate of Myers, 494 P.2d 816 (Alaska 1972); In re Cornelius, 520 P.2d 76 (Alaska 1974); Amidon v. State, 565 P.2d 1248 (Alaska 1977); McHugh v. Church, 583 P.2d 210 (Alaska     2 ABR 85  1978); McKnight v. Rice, Hoppner, Brown & Brunner, 678 P.2d 1330 (Alaska 1984); Aiello v. Clark, 680 P.2d 1162 (Alaska 1984); State v. Weiss, 706 P.2d 681 (Alaska 1985). The Restatement recognizes the validity of spendthrift trusts and restraints on alienation contained in trusts in §§ 152 through 155.

         The United States argues that any spendthrift trust is invalid because it is self-settled. The Restatement recognizes that spendthrift trusts may not be self-settled. Restatement (Second) of Trusts, § 156 (1959). Here Anderson did not settle the trust. He put none of his own money into the plan. All of the contributions came from his employer. Anderson's union is the party that entered into the collective bargaining agreements which established the ERISA trust, not Anderson. Anderson was not the settlor. In re West, 81 B.R. 22 (9th Cir. B.A.P. 1987).

         The United States also contends that Anderson has sufficient control over the trust to invalidate it. While there is no Alaskan authority on the extent of beneficial control necessary to invalidate the spendthrift nature of the trust, I conclude that the debtor has insufficient control over the trust to invalidate it. As pointed out in West, 81 B.R. at 25:

In addition, the beneficiary must not be able to alienate his interest in the trust and must not possess exclusive and effective control over termination or distribution. In cases where pension plans have been included in bankruptcy estates, the distinction between the corporation and the beneficiary has been
    2 ABR 86  questionable. See, e.g., In re Lichstrahl, 750 F.2d 1488 (11th Cir. 1985) (debtor was sole director, officer, shareholder and employee of professional corporation); In re Goff, 706 F.2d 574 (5th Cir. 1983) (Keough plan); In re Schuman, 78 B.R. 254 (9th Cir. B.A.P. 1987), (debtor was sole officer and shareholder of corporation and a trustee of pension plan); In re Ott, 53 B.R. 388 (Bankr. D. Or. 1985) (debtor was sole corporate shareholder); In re Mendenhall, 4 B.R. 127 (Bankr. D. Or. 1980) (Keough plan) . . .

         Here the debtor is not his own trustee. He is not the sole officer, employee and director of a professional corporation. He cannot alienate his interest. He cannot even borrow from the plan. He has not engaged in the type of abuses found by the Ninth Circuit in In re Daniel. While the debtor has retained many real and substantial benefits from his vested interest in the plan, he does not control the corpus or the income. That responsibility falls squarely on the six member board of trustees. The debtor may elect to commence retirement benefits now as he has ten years of service. He has no right to a lump sum corpus distribution, however. Overall, his rights simply do not amount to control of the trust. Consistent with West, I find the debtor to be the beneficiary of a valid spendthrift trust.⁽¹⁾     2 ABR 87 

Federal Tax Lien

         Unfortunately for Anderson, our analysis cannot end here. The fact that he has a beneficial interest in a valid spendthrift trust only means that his pension is not includable in the estate under 11 U.S.C. § 541(c)(2). It has no direct bearing upon the attachment of federal tax liens.

26 U.S.C.A. § 6321 provides:

If any person liable to pay any tax neglects or refuses to pay the same after demand, the amount (including any interest, additional amount, addition to tax, or assessable penalty, together with any costs that may accrue in addition thereto) shall be a lien in favor of the United States upon all property and rights to property, whether real or personal, belonging to such person.

         In analyzing attachment of federal tax liens, this court must first determine if the debtor possesses "property and rights to property" arising under state law. Aquilino v. United States, 363 U.S. 509, 512-513 (1960). Here the debtor is the vested beneficiary of a pension plan which qualifies as a spendthrift trust under state law. He had the immediate right to retire and receive retirement benefits as of the date of the petition, under an array of payment options. His beneficial interest constitutes
    2 ABR 88  a right to payment to which a federal tax lien attaches. ⁽²⁾ United States v. Dallas National Bank, 152 F.2d 582 (5th Cir. 1945) ; Leuschner v. First Western Bank & Trust Company, 261 F.2d 705 (9th Cir. 1958); In re Reed, 127 B.R. 244 (Bankr. D. Hawaii 1991); Restatement (Second) of Trusts, § 157(d) (1959).

Conclusion

         The debtor's interest as a beneficiary of an ERISA retirement trust having a corpus of $83,500.00 is a valuable property right subject to a federal tax lien. ⁽³⁾ Summary Judgment for the United States is appropriate.

DATED: September 6, 1991.

BY THE COURT


DONNALD MacDONALD IV
United States Bankruptcy Judge

N O T E S:

    2 ABR 86  1. My conclusion is buttressed by the fact that the United States, despite its argument seeking to invalidate the trust, indicates it has no desire to invade the corpus even if the debtor's interest was found to be property of the estate.

    2 ABR 88  2. While the State of Alaska has "exempted" ERISA pension plans under A.S. 09.38.017(d), such exemption has no effect on federal levies. United States v. National Bank of Commerce, 472 U.S. 713 (1985). While my learned brother, the Honorable Donald E. Cordova, found pension funds exempt from levy under ERISA in a thoughtfully drafted opinion, In re Lewis, 67 A.F.T.R.2d 91-311; 91-1 U.S.T.C. P 50, 296; Bankr. L.Rep. P 73, 711 (Bankr. D.Colo., Sept. 20, 1990), the Ninth Circuit rejected that argument in In re Daniel, 771 F.2d 1352 (1985).

    2 ABR 88  3. The parties have not addressed the precise monetary valuation of the IRS's secured claim. They have assumed, along with the court, that retirement benefits payable to the debtor have a present value at least equal to the $83,500.00 in employer contributions.