Commentary on 11 USC § 522(b)(1)-(3) (Excerpt)
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Comment: Debtor may choose either the
"federal bankruptcy exemptions" in paragraph
(2) or the "state exemptions" in paragraph (3)
?" [subject to later restrictions (below)] ►
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522(b)(1) "An individual debtor may exempt from
property of the estate the property listed in either
paragraph (2) or, in the alternative, paragraph (3)
of this subsection."
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The "federal" exemptions option in 522(b)(2) is subject to State opt-out
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Comment: Debtor may use the “Federal
bankruptcy exemptions” contained in 522(d)
unless the state whose law applies specifically
disallows their use ("opts out"). ►
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522(b)(2) "Property listed in this paragraph is
property that is specified under subsection (d),
unless the State law that is applicable to the
debtor under paragraph (3)(A) specifically does
not so authorize."
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The "state" exemptions option in 522(b)(3) includes 4 general categories of property
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Comment: The “State" exemptions option
includes the federal non-bankruptcy
exemptions--not the federal bankruptcy
exemptions listed in subsection (d) LINK TO
THEM both?►
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522(b)(3)(A) "Property listed in this paragraph is:
(A) subject to subsections (o) and (p), any
property that is exempt under Federal law, other
than subsection (d) of this section" . . .
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Comment: The "State" exemptions option
includes exemptions available under
applicable State law LINK applicable State
law?
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522(b)(3)(A) . . ."or State or local law that is
applicable on the date of the filing of the petition .
. ."
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Comment: The “state exemptions” option
includes also certain property of the debtor
that a creditor could not levy on as
determined by "applicable non-bankruptcy
law.” Refer to a link or what on this.
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522(b)(3)(B) "any interest in property in which
the debtor had, immediately before the
commencement of the case, an interest as a
tenant by the entirety or joint tenant to the extent
that such interest as a tenant by the entirety or
joint tenant is exempt from process under
applicable nonbankruptcy law."
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Comment: The “state exemptions” option
includes also certain retirement fund
exemptions added by BAPCPA. (They are
duplicated in the federal bankruptcy
exemptions in 522(d) so that they are
available regardless of whether the federal or
state exemptions are selected.)
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522(b)(3)(C) "retirement funds to the extent that
those funds are in a fund or account that is
exempt from taxation under § 401, 403, 408,
408A, 414, 457, or 501(a) of the Internal
Revenue Code of 1986."
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How to determine the State whose exemptions law applies-- except 522(b)(3)(B) property
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Comment: To determine the State whose law
applies, first ask whether there is a state in
which the debtor has been continuously
domiciled for the 730-day period up to the
date of filing. If there is, its law applies.
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522(b)(2)(A) . . "State or local law that is
applicable on the date of the filing of the petition
at the place in which the debtor’s domicile has
been located for the 730 days immediately
preceding the date of the filing of the petition,"
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Comment: If there is no state of continuous
730-day domicile, determine the state, if any,
in which debtor was domiciled for the longest
portion of the 180-day period prior to the 730-
day period. If there is such a State, its law
applies.
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522(b)(2)(A) . . . "or if the debtor’s domicile has
not been located at a single State for such 730-
day period, the place in which the debtor’s
domiciled was located for 180 days immediately
preceding the 730-day period or for a longer
portion of such 180-day period than in any other
place"
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Comment: If the 730-day and 180-day rules
(above) deprive the debtor of "any
exemption," the debtor may use the federal
bankruptcy exemptions. link to "any" Mention
meaning far from clear
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522(b)(hanging paragraph): "If the effect of the
domiciliary requirement under subparagraph (A)
is to render the debtor ineligible for any
exemption, the debtor may elect to exempt
property that is specified under subsection (d)."
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