Monthly Archives: July 2013

Amended Tax Returns and Discharging Taxes in Bankruptcy

By Ryan C. Wood

In my previous blog articles I have explained that taxes are dischargeable in bankruptcy if they meet the following requirements: 1) the taxes were due more than 3 years ago, 2) filed more than 2 years ago, 3) assessed more than 240 days ago, 4) filed in good faith, and 5) is not filed fraudulently. What happens if you have to file an amended tax return?

Taxes will become a more common reason for people to file for bankruptcy protection. Bankruptcy lawyers everywhere are seeing more and more people with significant tax debts. Our taxes are not going to decrease anytime soon either.

Everyone makes mistakes sometimes. That is human. Everyone should be allowed to correct those mistakes if possible. If you amend your tax return and you end up owing more money to taxing authorities such as the Internal Revenue Service or the California’s Franchise Tax Board, how does this affect the dischargeability of the taxes owed if you hire a bankruptcy attorney and file for bankruptcy?

If you amend your tax return you may be relieved to know that the amendment of your tax return does not change the filing date of the original return. Your tax return will still be considered to have been filed the first time you filed the tax return. For example: you have filed your 2005 tax returns on April 15, 2006. The IRS contacts you in 2009 to notify you that you have made a mistake on your return and you need to amend your tax returns. You file the amended tax returns on June 15, 2009. You file for bankruptcy on July 1, 2009. The 2005 tax debt should still be dischargeable because you filed the original tax returns more than 2 years prior to the filing of your bankruptcy case.

One thing to note is that if there are additional taxes assessed due to the amended tax return, those additional taxes will be subject to the 240 day assessment rule. For example: you owed $1,000 when you filed your 2005 tax returns on April 15, 2006. When you amended your tax returns on June 15, 2009, an additional $500 was assessed on June 30, 2009. If you filed for bankruptcy on July 1, 2009, the original $1,000 tax debt would still be dischargeable. The additional $500 taxes that were assessed would not be dischargeable yet. If you filed your bankruptcy case on February 26, 2010 or later, the entire $1,500 would be dischargeable. Taxes are complicated. Bankruptcy laws are complicated.

Can I Incur New Debts While in a Chapter 13 Bankruptcy?

By Ryan C. Wood

When you are in an active Chapter 13 bankruptcy case there are limits to what you can or cannot do. You cannot simply continue doing what you would normally do as if you did not file for bankruptcy. There is a Chapter 13 trustee assigned to your case. This trustee is the person that is responsible for administering your Chapter 13 case. If there are certain things that you want or need to do you will need to ask the trustee or the court’s permission depending upon the circumstances and jurisdiction. To make sure you stay on track and not get in trouble with your Chapter 13 bankruptcy trustee, here are some things that bankruptcy attorneys may advise you on.

Buying a New Car

Generally you are allowed to incur new debt for the purchase of a vehicle. If the vehicle you owned at the time the case was filed breaks down or become unreliable you need a new car. Just because you filed for bankruptcy protection does not mean you cannot have reliable transportation to get to and from work and live life. You will need to notify your bankruptcy lawyer and obtain a letter from the trustee’s office providing permission to incur the new debt. This is a jurisdiction to jurisdiction issue though. So your local Chapter 13 Trustee may have different procedures in place.

Credit Cards

You cannot have or use or open any credit cards while you are in an active Chapter 13 bankruptcy. You need to cut up all your credit cards in your possession when you file for bankruptcy. This makes sense since the Chapter 13 trustee would not be able to administer your estate effectively if they are paying your creditors from your Chapter 13 plan payments while you continue to accrue new debt.

Borrow Money

You cannot borrow money from any sources, usually over $600, without permission from the Chapter 13 trustee. In some jurisdictions you need to obtain permission from the bankruptcy court in order to borrow money. You should consult with a bankruptcy lawyer in your area to determine whether you need permission from the Chapter 13 trustee or the bankruptcy judge to borrow money. Here are some examples: refinancing your mortgage, trying to obtain student loans, financing a car, borrowing from your 401k, borrowing funds to make home improvements. There may be many things you need to borrow money for since life continues moving on after you file your bankruptcy case. The important thing is to contact your bankruptcy attorney first before doing anything so that your attorney can advise you on what you need to do.

Selling Your Home

If you need to sell your current home you need permission from the bankruptcy court in order to do so as it is a major asset in your bankruptcy estate. Failure to obtain permission from the court to sell your home may result in having the entire transaction voided.

The above examples are only a portion of the things you cannot do or need permission in order to do while you are in bankruptcy. The best way to ensure you are not inadvertently violating any rules is to consult with your bankruptcy lawyer before doing anything major that involves your finances while you are in bankruptcy.

What Happens to My Children’s Bank Accounts if I File Bankruptcy?

By Ryan C. Wood

Most parents want to be able to provide for their children’s financial future. What happens when you personally file for bankruptcy and have bank accounts in your children’s names? Is the money set aside for your children in danger of being taken by the trustee assigned to your bankruptcy case? The answer is “it depends” upon the type of the account and its purpose. You should speak with your bankruptcy attorney when you are filing for bankruptcy to see how different accounts may affect your bankruptcy estate and how it may affect your children’s accounts.

Bank Accounts in Childs Name

If you open a bank account that is a standard checking or savings account in your child’s name you will have to be an account holder too since the child is not 18 years old yet. Money deposited in these accounts will be considered an asset of your bankruptcy estate if you file for bankruptcy protection.

UTMA Accounts

Once funds are transferred to an UTMA account, the funds are out of your name and belong solely to the child listed as the beneficiary. Since your children are minors and cannot have an account in their name, your name will most likely be listed as the custodian for your children in the account. This does not make the account yours. In fact, the transfers into an UTMA account are irrevocable in nature and cannot be transferred back. The money can be spent for the benefit of your children however. You cannot use the funds in the UTMA account for regular parental obligation expenses, such as food, housing, clothing. You can use the funds for your children such as for their education or educational tools like laptops or computers. UTMA accounts are considered to be an asset for your children so if they are applying for financial aid that needs to be taken into consideration. So what does this mean if you have to file for bankruptcy? Since the UTMA account is not an asset of yours it is not listed in your bankruptcy petition. There may be some issues with the UTMA account if it is determined that the reason you transferred the funds from your account to the UTMA account is to deprive your creditors of those funds. If that is found to be the case the transfers could be voided as a fraudulent transaction and brought back into your bankruptcy estate.

529 Plans

A 529 plan is a college savings plan that allows parents to contribute funds into the account for their children’s educational needs. It is a tax deferred plan and if the account is actually used for educational purposes it is actually tax free. A 529 plan is an asset that usually belongs to the parents. Therefore if the parents file for bankruptcy it is considered an asset of the parents. The funds that have been contributed to the 529 plan more than 2 years ago are protected from creditors in bankruptcy. If the funds were contributed between 1 to 2 years ago, the 529 plan is protected up to $5,000 per beneficiary. If the funds were contributed to the 529 plan less than a year ago it is not protected and is considered an asset of the bankruptcy estate unless you have available exemptions to protect that asset.

It is highly recommended that you tell your bankruptcy lawyer the specifics of the account so they can help you determine how to best protect the account if possible. You should not keep it from them because you think you know that it is not an asset of the bankruptcy estate. Let them determine that for themselves.

Supreme Court Strikes Down Defense of Marriage Act – How Does it Affect Bankruptcy?

By Ryan C. Wood

The Supreme Court of the United States held that the Defense of Marriage Act (DOMA) was unconstitutional this past Wednesday, June 26, 2013 in United States v. Windsor, Executor of the Estate of Spyer, et al. 570 U.S. ___ (2013). The Defense of Marriage Act defined marriage as between a heterosexual couple for purposes of federal laws. This meant that marriage between same-sex couples were not recognized by the federal government. This recent Supreme Court decision is a historic victory for couples in same-sex marriages.

In the Windsor case, Edith Windsor married Thea Spyer in Canada. When Spyer passed away and left her entire estate to Windsor, Windsor was hit with a huge estate tax bill. If Windsor and Spyer’s marriage was recognized by the federal government, Windsor would have been able to claim the estate tax exemption for surviving spouses. This would mean that Windsor would not have owed anything to the federal government. Windsor paid the estate tax bill and then sought a refund from the Internal Revenue Service. The IRS denied the refund. Windsor brought the lawsuit to the District Court. The court ruled against the United States and ordered the U.S. Treasury to refund Windsor’s tax with interest. The Second Circuit affirmed the District Court’s decision. The Supreme Court granted certiorari and held that DOMA violates the due process and equal protection principles applicable to the Federal Government.

With DOMA struck down, married same-sex couples will be able to enjoy the same federal benefits as married heterosexual couples. One of the biggest benefits is as the Windsor case indicated: significant savings on estate taxes for inheritances because of the exemptions available for spouses. Windsor had to pay over $363,000 in estate taxes. If her marriage was recognized under the federal government, she would not have owed any taxes. That’s over $363,000 in savings. Keep in mind the savings may vary due to the different sizes of each estate.

Another benefit that same-sex couples can now enjoy is that they get to file their federal tax returns together. This may mean higher refunds or lower taxes being paid out since married couples have more exemptions available to them on the tax returns. Previously, same-sex couples would need to file their federal returns as “single” and their state tax returns as “married” if they were in a state that recognized same-sex marriages. This may seem like a trivial thing for people that are used to filing taxes together, but it is a hassle to file so many different returns.

Same-sex couples may now also file their bankruptcy cases together since the federal government now recognizes their existence. Previously same-sex couples would need their bankruptcy attorney to file two separate bankruptcy petitions even if it involved the same assets. This means they would potentially have to pay their bankruptcy lawyer twice and pay the filing fee twice. Now that they can file their bankruptcy petitions together they can save some of their hard earned money.

The above benefits are only some of the benefits of having DOMA struck down. It is not an exhaustive list. There are many benefits, some of them significant, some of them trivial, but to people in same-sex marriages this is a huge step towards equality.