Dissenting.
I respectfully disagree with both of the conclusions expressed in the majority opinion. Fahey was not a fiduciary of a technical trust arising under ERISA. For that reason, and because no express trust is implicated, he was not a fiduciary under § 523(a)(4). Thus, as determined by the bankruptcy court, Fahey was entitled to judgment on Count II of the complaint brought by Raso.
I agree with the majority that: (a) Fa-hey had exercised authority and control over all of the assets of Zani as its sole shareholder and operating officer; (b) he was responsible for fulfilling Zani’s contractual obligations to make contributions to the employee benefit funds controlled by Raso; and (c) the assets of the funds over which Raso exercised authority or control under ERISA included “contributions that are properly due and owing but not yet paid” by Zani as the contributing employer. My point of departure is that I view the property interest of the employee benefit funds in the unpaid contributions to have been a chose in action controlled by Raso. See In re Luna, 406 F.3d at *6971203-4. Fahey exercised no authority or control over that chose in action. Therefore, the bankruptcy court was correct when it placed the onus for collecting the unpaid contributions on Raso.
Holding Fahey to be a fiduciary of the fund beneficiaries under an ERISA technical trust on these facts ignores the fiduciary duties he may have had to Zani’s creditors under Massachusetts law. See Seder v. Gibbs, 333 Mass. 445, 131 N.E.2d 376, 380 (1956) (“directors [of an insolvent corporation] are to some extent trustees of the corporation property for the creditors”). Under this rule, self-dealing by the director of an insolvent corporation could be a breach of a fiduciary duty to general creditors. The majority decision places the responsible officer of an insolvent corporation in jeopardy of violating a state law fiduciary duty if he or she chooses to distribute corporate assets to employee benefit funds in an effort to avoid a judgment under § 523(a)(4). Ironically, such a distribution could give rise to a sustainable, nondischargeable claim under § 523(a)(4) for breach of a state law duty.
Unlike the Internal Revenue Code, which contains an express provision imposing breach of trust liability upon an individual who fails to pay withholding taxes, see 26 U.S.C. § 6672, ERISA contains no express provision imposing breach of trust liability upon an individual who fails to make corporate employee benefit contributions. We should not invent trust fund liability where none exists to punish a bad actor when doing so could press an honest debtor into violating a long established fiduciary duty to all general creditors. For this reason, I would affirm the bankruptcy court.