OPINION

The Debtors seek to exempt from their bankruptcy estate an “individual retirement account” (IRA) which Aimee Greenfield inherited pre-petition from her father. The Trustee objects to the claim of exemption on the ground that the IRA is not being used by the Debtors for retirement purposes.

This Court has subject matter jurisdiction pursuant to 28 U.S.C. § 1334 and General Order No. 312-D of the United States District Court for the Southern District of California. This is a core proceeding under 28 U.S.C. § 157 (b)(2)(B).

FACTS

In November of 2000, Aimee Greenfield (Debtor) inherited from her father an “individual retirement account” (IRA). From the date of the inheritance through the present the Debtor has taken regular disbursements from the IRA as required by the Internal Revenue Code (IRC). When the Debtors filed their petition commencing this case on June 27, 2002, they sought to exempt the IRA from their bankruptcy estate under California Code of Civil Procedure (CCP) § 703.140(b)(10)(E). The Debtors’ schedules indicate that as of the date of the petition the IRA was worth $67,099.00.

On September 26, 2002, Gregory Akers, the Chapter 7 Trustee (Trustee), filed an objection to the Debtors’ claim of exemption on the ground that the Debtors were not using the IRA for retirement purposes.

DISCUSSION

Burden

There is disagreement as to which party bears the burden of proving whether or not the exemption is properly claimed. Bankruptcy Rule 4003(c) places the burden of proving that an exemption is not properly claimed on the party objecting thereto— the Trustee in our case. However, the propriety of Rule 4003(c) in a case such as this has been called into question. In In re Barnes, 275 B.R. 889 (Bankr.E.D.Cal.2002), the court noted:

Barnes, 275 B.R. 889 , 899 n. 2. Notwithstanding the language quoted above, the actual ruling on the burden issue in the Barnes case is not clear. While the footnote set out above seems to place the burden on the debtors, the court also states:

This seems to indicate that the trustee maintained the ultimate burden.

The Ninth Circuit BAP has also discussed the issue:

Williams, 280 B.R. 857 , 863 fn. 5 (9th Cir.BAP 2002).

The court in Raleigh did indeed look to state law in placing the burden. However, Raleigh dealt with a situation — an objection to a proof of claim — for which neither the Bankruptcy Code nor the Bankruptcy Rules provide a burden of proof:

530 U.S. 15 , 120 S.Ct. 1951 , 1955-56 & n. 2, 147 L.Ed.2d 13 .

Contrarily, in the case of exemptions and objections thereto, the Rules do provide a specific and clear allocation of the burden' — Rule 4003(c). Accordingly, the Raleigh case may not apply.

Fortunately, this Court, like the BAP in Williams , is able to resolve the present matter without determining on whom the burden would ultimately fall. That is, the matter can be resolved based upon facts that are not in dispute.

Section 703.140(b)(10)(E)

CCP § 703.140(b)(10)(E) provides that a debtor may exempt, in relevant part:

The Ninth Circuit has held that Section 703.140(b)(10)(E) covers IRA’s in general. In re McKown, 203 F.3d 1188, 1190 (9th Cir.2000). The court in McKown did not discuss whether a particular IRA would qualify nor did it set out the standards to be applied. However, the bankruptcy court did provide it’s reasoning for including an IRA as a “similar plan or contract:”

McKown, 203 B.R. 722, 724-25 . The Court finds this rationale persuasive and further finds that it argues against the Debtors in this case. The Debtors’ IRA is not “aimed to enable working taxpayers to accumulate assets during their productive years so that they might draw upon them during retirement.” In the present case the Debtors are using the money now at the relatively young age of forty-one. The Court recognizes that under the IRC the Debtors have no choice but to use the money now. However, the Debtors themselves explain that, even if not required to take current disbursements, the disbursements are necessary for their current support. See Debtors’ Response at 6:22-26.

The case most directly on point, and one upon which both parties rely, is In re Sims, 241 B.R. 467 (Bankr.N.D.Okla.1999). In Sims the debtor, like Mrs. Greenfield, inherited an IRA pre-petition. The court held that the IRA could not be exempted under the Oklahoma state exemption scheme which provides an exemption for “any interest in a retirement plan or arrangement qualified for tax exemption purposes under present or future Acts of Congress...” Like the Debtors in the present case, the debtor in Sims had taken distributions from the IRA prior to his retirement. The court reasoned:

Sims, 241 B.R. at 470 . The Debtors attempt to distinguish Sims on the grounds that their disbursements have been small and regular as opposed to Sims’ two large disbursements. However, the Court is persuaded that the size and regularity of the disbursements is of less import than the purpose for the disbursements. In order to qualify for an exemption the IRA must be used for “retirement needs.” The Debtors are presently using the IRA funds, but they are simply not of retirement age. Furthermore, it appears from the Debtors’ calculations that there will be very little if any income from the IRA for the Debtors by the time they reach retirement age. The monthly income from the IRA has already dropped from $134 in 2002 to $84 in 2003. See Debtors’ Response at 4:11-14.

In light of the fact that the Debtors are using the IRA primarily for other than retirement purposes, the Court concludes that the Trustee’s objection is well taken. The IRA is not exempt under CCP § 703.140(b)(10)(E).

CONCLUSION

For the foregoing reasons the Court sustains the Trustee’s objection to the Debtors assertion of an exemption — the IRA may not be exempted from property of the Debtors’ bankruptcy estate under CCP § 703.140(b)(10)(E).

IT IS SO ORDERED.

. Rule 4003(c) provides: In any hearing under this rule, the objecting party has the burden of proving that the exemptions are not properly claimed. After hearing on notice, the court shall determine the issues presented by the objections. . The legislative history indicates that the burden of proof on the issue of establishing claims was left to the Rules of Bankruptcy Procedure. See S.Rep. No. 95-989, p. 62 (1978); H.R.Rep. No. 95-595, p. 352 (1977), U.S.Code Cong. & Admin.News 1978 at 5787. The Bankruptcy Rules are silent on the burden of proof for claims; while Federal Rule of Bankruptcy Procedure 3001(1) provides that a proof of claim (the name for the proper form for filing a claim against a debtor) is "prima facie evidence of the validity and amount of the claim,” this rule does not address the burden of proof when a trustee disputes a claim. The Rules thus provide no additional guidance. . The Debtors provide in their response to the Trustee's objection that Aimee Greenfield is 41 years old. They provide no age for Dwynn Greenfield. . Dr. Sims had taken two pre-petition disbursements of $32,150.00 and $1,998.00. .The Debtors also contend that the IRA would be exempt under CCP § 704.115(a)(3). The Debtors have not, however, asserted an exemption under this section. Therefor, the Court will not consider this argument.