Millions of Americans count on their tax refunds each year to pay down debts, get caught up on bills, or simply to make ends meet. With an estimated 1.5 million personal bankruptcies to be filed in 2011, bankruptcy lawyers around the country are being asked the same question: “What will happen to my tax refund if I declare bankruptcy?”
Income tax refunds are basically interest-free loans to the government, and are therefore considered assets of debtors who declare bankruptcy. The trustee assigned to your case may be able to seize your income tax refund, depending upon two main factors: first, what type of bankruptcy you file, and second, whether your refund is fully exempted.
The two main types of personal bankruptcy cases are Chapter 7 and Chapter 13. In a Chapter 7 case, debtors are essentially allowed to walk away from their debts.
In a Chapter 13 case, debtors must repay their unsecured debts over 3 to 5 years.
Most Chapter 7 cases are considered “no asset” cases, and for those assets that the debtor does possess, there are federal and state exemption laws, which prevent the bankruptcy trustee from seizing and selling the debtor’s property.
Just like the debtor’s household goods, clothing and automobile, in most Chapter 7 cases the debtor’s tax refund can be fully exempted, which means the bankruptcy trustee cannot even consider seizing the refund. However it is very important to use the full and correct exemptions to protect the refund.
Chapter 13 cases can be a bit more complicated. If you have a confirmed Chapter 13 Plan that requires repayment of only a percentage of your debt, your trustee will likely seize your refund every year over the course of your bankruptcy, using the proceeds to increase the payout to unsecured creditors. Income tax refunds in Chapter 13 are considered “property of the estate,” so your trustee will want to apply this money toward payment of your Plan.
In 100% repayment cases, however, the trustee has no interest in seizing your tax refund. If your income is demonstrably sufficient to satisfy your confirmed Plan, the trustee will allow you to keep your tax refund. You may want to adjust your withholdings before filing a Chapter 13 appropriate.
The bankruptcy trustee will in most cases require the debtor to file a tax return to determine whether the debtor’s refund can be seized and used to repay creditors. Unlike a home or car with equity, which must first be auctioned to produce distributable funds, tax refunds are a quick cash windfall to the creditors.
Tax refunds are the assets most frequently captured by bankruptcy trustees. An experienced bankruptcy attorney can assist you in finding the maximum exemption strategy to protect your tax refund.
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Brian Lee is a bankruptcy and foreclosure lawyer serving clients in Virginia and Washington, D.C. For more information, visit http://www.lee-legal.com or call (202) 448-5136.
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BRIAN V. LEE
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Washington, DC 20036
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