It’s almost February and ‘tis the season for thinking about tax time—even more so if you find yourself considering the benefits of bankruptcy. So, if you believe you’re bankruptcy bound in 2010, in addition to trying to get your 2009 taxes filed in a timely manner, you may also be wondering whether you can discharge any income tax debt in your bankruptcy filing.
Well, it’s also time for insolvent taxpayers to take heart. When filing for bankruptcy a qualified attorney will compile a list of all of your debts, including credit cards, medical bills, car loans, mortgage debts, lawsuits and even information about stuff that you think you may owe, but for which creditors have yet to come calling. In this long list of potential debts and inferences of insolvency, the lawyer will also require information about your taxes, including any federal income taxes you may owe, along with income tax due to your state or to any other state where you may have lived.
This comprehensive look at your debts, including your tax debt, is a good thing. You are not only required by the Bankruptcy Code to include income tax debt in the common Chapter 7 or Chapter 13 case, but also because, in some cases, your tax debt can be minimized or completely eliminated by bankruptcy.
The question of whether your income tax can indeed be discharged by filing for bankruptcy ultimately depends on how old the tax debt is and when you filed that tax return. In order to be dischargeable, your tax debt for the tax year in question must meet the following conditions:
- The due date for filing your tax return is at least three years ago.
- Your tax return was filed at least two years ago.
- The tax assessment is at least 240 days old.
- Your tax return was not fraudulent.
- You are not guilty of tax evasion.
For example, say you filed your 2005 tax return showing $6000 in outstanding debt on April 7, 2006. On April 16, 2009, (three years later) that $6000 became dischargeable, meaning the tax debt could be eliminated in a Chapter 7 filing and treated as just regular old dischargable, unsecured debt in Chapter 13 bankruptcy. If, on the other hand, you did not file your 2005 return on time, waiting until December 15, 2009 to do so, your tax debt would not be dischargeable as of today (January 16, 2010) because fewer than two years had passed since you filed your return. In this case, you would simply have to wait to file bankruptcy until at least December 16, 2011.
Not surprisingly, the rules about discharging tax debt in bankruptcy can be confusing. For instance, only "income" taxes can be discharged in bankruptcy, whereas employee withholding (form 940 and 941) and sales taxes cannot.
Also...tax returns filed on your behalf by the IRS do not count for purposes of discharging tax debt.
And...tax debt that is secured by a tax lien may be dischargeable, but may still need to be paid to the extent that the lien is secured by the things you own.
As a result, if you’re considering bankruptcy in 2010 and are concerned about the tax implications, including when to file, whether you can keep your tax refund, whether your tax debt is dischargeable, and any other factors in your personal circumstances that might require consideration, it’s important to speak with an experienced bankruptcy attorney who can competently guide you on the right path to the best result.
The bankruptcy lawyers at the Law Offices of John T. Orcutt offer a totally FREE debt consultation and now, more than ever, it’s time to take them up on their offer. Just call toll free to +1-919-646-2654, or during the off hours, you can make your own appointment right online at www.billsbills.com. Simply click on the yellow “FREE Consultation Now” button.