NOTICE: Although citation of unpublished opinions remains unfavored, unpublished opinions may now be cited if the opinion has persuasive value on a material issue, and a copy is attached to the citing document or, if cited in oral argument, copies are furnished to the Court and all parties. See General Order of November 29, 1993, suspending 10th Cir. Rule 36.3 until December 31, 1995, or further order.
Before McKAY, Chief Judge, and SEYMOUR and PAUL KELLY, Jr., Circuit Judges.*
ORDER AND JUDGMENT…
PAUL KELLY, Jr., Circuit Judge.
Appellant, Kenneth G. M. Mather, trustee for the bankruptcy estate of appellees Stephen Smith and Marcia Ann Smith, appeals the district court's order holding that a qualified ERISA plan may be exempted from the property of the bankruptcy estate under 11 U.S.C. § 522(b)(2)(A). This appeal is controlled by Gladwell v. Harline (In re Harline), 950 F.2d 669, 674 (10th Cir.1991), cert. denied, 112 S.Ct. 2991 (1992), decided after the notice of appeal was filed in this case. Harline holds that a tax-qualified ERISA pension or profit sharing plan is excluded from the bankruptcy estate under 11 U.S.C. § 541(c)(2). Id. Because such a plan is not included in the estate created at the commencement of a case in bankruptcy, it is unnecessary to resort to the provisions of § 522 to exempt such a plan from the resulting estate.
The judgment of the United States District Court for the Eastern District of Oklahoma is AFFIRMED.
After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist the determination of this appeal. See Fed.R.App.P. 34(a); 10th Cir.R. 34.1.9. The case is therefore ordered submitted without oral argument
This order and judgment has no precedential value and shall not be cited, or used by any court within the Tenth Circuit, except for purposes of establishing the doctrines of the law of the case, res judicata, or collateral estoppel. 10th Cir.R. 36.3