90% of the debtors who are above the median income “pass” the means test. I can safely say that most above median income debtors will not have their case dismissed pursuant to §707(b). There is a higher risk of a motion by the UST under §707(b)(3) if the debtor is above the median income even if the debtor passes the means test. Don’t forget, the debtor has “passed” the means test, in most cases, where the debtor has excessively high mortgage payments or other secured debt. In many jurisdictions, bankruptcy Courts have dismissed cases where the debtor seeks to continue an extravagant lifestyle on the backs of the unsecured creditors. Look at the §707(b) cases in your jurisdiction. I recently had a panel trustee try to tell me that I was REQUIRED to use the average income for the 60-days prepetition as the income on Schedule I. It was a case where the debtor had steady income and I used the means test 6-month average on Schedule I because it was a fair reflection of what her income was going to be moving forward. He lectured me about being on the state bar committee that certifies bankruptcy attorneys as specials, he was going to carefully review my cases, blah blah blah. If he wants to do that, then bring it. Sometimes you just have to stand up to them when you are on firm ground. My bankruptcy client works for a large airline and had a decent amount of overtime in December so her 60-day prepetition income was higher than the means test average. So what? Her January and February income where less than the means test average. Schedule I is forward looking and isn’t necessarily tied solely to objective criteria like the means test is. Sometimes you just need to politely but firmly hold your ground.