This is an action by a former associate justice of the Alaska Supreme Court to avoid a federal tax lien against his pension. There are no disputed facts. I find that the lien of the United States is not avoidable in bankruptcy.

Factual Background and Jurisdiction

        Roger Connor (Connor) retired from the Alaska Supreme Court in May of 1983. He received income of $4,350.00 a month after retirement. The IRS assessed Connor in excess of $65,000.00 in taxes in 1985. A notice of federal tax lien was recorded in the Anchorage Recording District on November 13, 1986. After a levy, Connor entered into a monthly payment arrangement with the IRS for $1,000.00 a month for approximately a one year period. He made those payments until filing bankruptcy on March 23, 1988. The     2 ABR 139  parties agree that Connors pre-petition tax obligations have been discharged.

        This court has jurisdiction over this action as a core proceeding pursuant to
28 U.S.C. § l57(b)(2)(I),(K) and (O). In re Miranda, 2 A.B.R. 122, adversary no. 3-87-00716-001 (Bankr. D.Alaska 1991)

Analysis

        Connor has raised a number of reasons why the IRS lien should be avoided, none of which have merit. His primary arguments are that future retirement income is not subject to a lien, that a levy is required to perfect a lien against his retirement benefits, and that a bankruptcy discharge terminates the IRS lien.

        Connor receives retirement pay in accordance with A.S. 22.25.020 which provides that retired justices receive 5% per year to a maximum of 75% of their salary for retirement purposes, from the date of eligibility until death. Connor argues that his right to property is so speculative that he has no property interest to which a tax lien can attach.

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, any 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.

        To analyze the appropriate attachment of a federal tax lien, I 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). Roger Connor is the vested beneficiary of a statutorily mandated retirement plan. He has been receiving benefits pursuant to that plan since 1983. He will continue to receive such benefits until death. Connor's right to his pension benefits constitutes a right to payment attachable by a federal tax lien. As pointed out in United States v. National Bank of Commerce, 472 U.S. 713, 719-720 (1985), the language of § 6321 is broad "and reveals on its face that Congress meant to reach every interest in property that a taxpayer may have."

        Moreover, Connor's right to payment does not even rise to the level of a beneficiary's interest in a spendthrift trust. This court held in In re Anderson, 2 A.B.R. 82, adversary no. 3-87-00859-001 (Bankr. D. Alaska 1991) that a federal tax lien attaches to the debtor's interest as the beneficiary of a valid ERISA spendthrift trust. When such a remote interest is subject to a federal tax lien, it certainly follows that Connor's unequivocal statutory right to payment is subject to the lien.

        Connor lamely alleges that the tax lien is unperfected without levy. He simply ignores 26 U.S.C.A. § 6322 which allows perfection as to the taxpayer upon assessment. His argument has no basis.

        Connor argues that his discharge in bankruptcy terminated the IRS lien because the payments he now receives are after-acquired property. The IRS had a valid lien on the debtor's pension rights several years before the bankruptcy petition was filed. Pension rights are not after-acquired property. They were earned prior to the filing of the petition. Nor is a chapter 7 stripdown of the IRS's secured claim allowed. In re Miranda, 2 A.B.R. 122, adversary no. 3-87-00716-001 (Bankr. D. Alaska 1991). I have reviewed the remaining arguments presented by Connor, and find them without merit.

Conclusion

        The debtor and the IRS have stipulated that the IRS's claims have been discharged in bankruptcy. Therefore, Connor is entitled to partial summary judgment in that regard. Connor's pension rights with the State of Alaska are subject to the defendant United States of America's federal tax lien and summary judgment for the United States is appropriate.

        Therefore, IT IS HEREBY ORDERED:

        1.    Partial summary judgment shall be entered for Roger G. Connor finding his debt for income taxes, penalties and interest for the tax years 1977, 1978, 1979 and 1980 has been discharged;

        2.    Insofar as plaintiff's motion for summary judgment seeks a determination that the federal tax lien of the Internal Revenue Service upon Roger G. Connor's interest in a judicial pension with the State of Alaska to be avoided, it is denied;

        3.    The defendant's motion for summary judgment is granted and judgment shall be entered in favor of the United States of America finding that pension rights of Roger G. Connor with the State of Alaska to be subject to a valid, enforceable federal tax lien and not avoided or limited through discharge; and

        4.    Each party shall pay their own costs and attorney's fees.

        Let Judgment be entered and docketed accordingly.

        DATED:   September 25, 1991.

BY THE COURT




DONALD MacDONALD IV
United States Bankruptcy Judge