Plymouth Rock Fuel Corp. v. Bank of New York — 102 Misc. 2d 235

Majority

p. 235

Plymouth Rock Fuel Corporation, Respondent, v Bank of New York, Appellant.

Supreme Court, Appellate Term, Second Department,

October 18, 1979

p. 236

APPEARANCES OF COUNSEL

Emmet, Marvin & Martin (David M. Mahle and Dennis C. Fleischmann of counsel), for appellant. Stanley Zuckerman for respondent.

OPINION OF THE COURT

Memorandum.

Judgment and order of the court below (see 91 Mise 2d 837) affirmed, without costs.

Respondent appeals from a judgment directing it to pay over to petitioner judgment creditor certain assets belonging to the judgment debtor (see CPLR 5227). Some of these assets are held by respondent as custodian under a "Keogh” profit-sharing plan.

On this appeal, respondent contends that the "Keogh” plan assets are exempt from garnishment, levy, or execution by general creditors by reason of section 401 (subd [a], par [13]) of the Internal Revenue Code which prohibits assignment or alienation of qualified pension plan benefits.

We are constrained to follow National Bank of North Amer. v International Brotherhood of Elec. Workers ( 69 AD2d 679 , 686), in which the Appellate Division, Second Department, held that the prohibition of assignments and alienations (see US Code, tit 29, § 1056, subd [d]; US Code, tit 26, § 401, subd [a], par [13]) "was not intended to bar the enforcement of money judgments by application of legal process, such as garnishment.”

(concurring). The treasury regulation interpreting section 401 (subd [a], par [13]) of the Internal Revenue Code states that a qualified plan must provide "that benefits provided under the plan may not be anticipated, assigned (either at law or in equity), alienated or subject to attachment, garnishment, levy, execution or other legal or equitable process” (26 CFR 1.401 [a]-13). Such an interpretation is entitled to considerable weight and must be upheld unless it fails to implement the Congressional mandate in some reasonable manner (National Muffler Dealers Assn. v United States, 440 US 472 , 476). For the reasons stated in the

Concurrence

p. 237

dissenting opinion of Justice Rabin in National Bank of North Amer. v International Brotherhood of Elec. Workers ( 69 AD2d 679 ), it is my opinion that the interpretation placed upon the statute by the Treasury Department is not only reasonable but the only acceptable interpretation of the Congressional intent. Nevertheless, I am constrained to follow the decision of the majority in National Bank of North Amer. (supra) and therefore concur in the affirmance.

Hirsch and Jones, JJ., concur in memorandum; Weinstein, J. P., concurs in separate memorandum.

Cases cited

National Bank of North America v. International Brotherhood of Electrical Workers Local No. 3 69 AD2d 679 N.Y. App. Div. 1979-08-06 at 686 p. 236, p. 237
National Muffler Dealers Ass'n v. United States 440 US 472 SCOTUS 1979-03-20 at 476 p. 236