On June 12, 2012, NACBA filed an amicus brief on the issue of whether social security income should be excluded from the calculation of projected disposable income and whether the existence of social security benefits is an appropriate factor to be considered in a good faith analysis under 1325(a)(3). Anderson v. Cranmer, No. 12-4002 (10th Cir.). The brief outlines the explicit statutory protections for social security benefits in both the Social Security Act and the Bankruptcy Code and emphasizes the historical protection afforded to retirement benefits in general. From a practical standpoint the brief discusses the negative ramifications of permitting a trustee to distribute the debtor’s social security income which would discourage debtors from filing a chapter 13 plan when they could, alternatively, file under chapter 7. Finally, NACBA argues that because the Code permits exclusion of social security benefits from the calculation of disposable income, a debtor’s failure to include that income in the plan can never be the basis for a finding that the plan is not proposed in good faith.
