H. B. 2270
(By Delegates Howard and Sobonya)
[Introduced February 11, 2005; referred to the
Committee on the Judiciary.]
A BILL to amend the code of West Virginia, 1931, as amended, by
adding thereto a new section, designated
§38-8-1a
, relating to
exempting individual retirement accounts, pension and
profit-sharing plans from executions.
Be it enacted by the Legislature of West Virginia:
That the code of West Virginia, 1931, as amended, be amended
by adding thereto a new section, designated
§38-8-1a
, to read as
follows:
ARTICLE 8. EXEMPTIONS FROM LEVY.
§38-8-1a. Property exempt from execution.
The following property is exempt from execution:
(a) An individual retirement account or individual retirement
annuity as defined in Section 408 or 408a of the Internal Revenue Code of 1986 and the payments or distributions from such an account
or annuity. This exemption applies to the operation of the Federal
Bankruptcy Code as permitted by Section 522(b)(2) of Title 11 of
the United States Code, 11 U.S.C. §522. This exemption does not
apply to any amounts contributed to an individual retirement
account or individual retirement annuity if the contribution occurs
within one hundred twenty days before the debtor files for
bankruptcy. This exemption does not apply to an individual
retirement account or individual retirement annuity to the extent
that any of the following occur:
(1) The individual retirement account or individual retirement
annuity is subject to an order of a court pursuant to a judgment of
divorce or separate maintenance;
(2) The individual retirement account or individual retirement
annuity is subject to an order of a court concerning child support;
and
(3) Contributions to the individual retirement account or
premiums on the individual retirement annuity, including the
earnings or benefits from those contributions or premiums, exceed,
in the tax year made or paid, the deductible amount allowed under
Section 408 of the Internal Revenue Code of 1986. This limitation
on contributions does not apply to a rollover of a pension,
profit-sharing, stock bonus plan or other plan that is qualified
under Section 401 of the Internal Revenue Code of 1986, or an annuity contract under Section 403(b) of the Internal Revenue Code
of 1986.
(b) The right or interest of a person in a pension,
profit-sharing, stock bonus, or other plan that is qualified under
Section 401 of the Internal Revenue Code of 1986, or an annuity
contract under Section 403(b) of the Internal Revenue Code of 1986,
which plan or annuity is subject to the Employee Retirement Income
Security Act of 1974, Public Law 93-406, 88 Stat. 829. This
exemption applies to the operation of the Federal Bankruptcy Code,
as permitted by Section 522(b)(2) of Title 11 of the United States
Code, 11 U.S.C. §522. This exemption does not apply to any amount
contributed to a pension, profit-sharing, stock bonus, or other
qualified plan or a 403(b) annuity if the contribution occurs
within one hundred twenty days before the debtor files for
bankruptcy. This exemption does not apply to the right or interest
of a person in a pension, profit-sharing, stock bonus, or other
qualified plan or a 403(b) annuity to the extent that the right or
interest in the plan or annuity is subject to any of the following:
(1) An order of a court pursuant to a judgment of divorce or
separate maintenance; and
(2) An order of a court concerning child support.
NOTE: The purpose of this bill is to exempt individual
retirement accounts, pensions, profit-sharing plans
and annuity
contracts under Section 403(b) of the Internal Revenue Code
from executions. This bill would protect these accounts from execution
on a judgment in order to provide asset protection.
This section is
new; therefore, strike-throughs and
underscoring have been omitted.
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