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»
Bankruptcy Articles
One of the most frequently asked
questions by consumers who are contemplating filing bankruptcy is: "Are
Taxes Due the IRS Dischargeable in Bankruptcy?"
This article by bankruptcy attorney,
Mitchell Sussman, answers these questions and more on the subject of what tax
debts can be discharged by the filing of a chapter 7 bankruptcy.
If you are eligible to file a
chapter 7 bankruptcy, virtually all of the debt that you owe will be
discharged. A discharge of debt obtained in bankruptcy means that you do not
have to pay the debt. It is one of the principal reasons for filing a chapter 7
bankruptcy.
Whether you are eligible to file a
chapter 7 depends on whether you can pass the "means test." A "
means test" separates those people with the financial means to repay their
debts, from those who do not have the means. If you do qualify under the means
test you will be able to file a chapter 7 and wipe out your debt.
There are exceptions to the general
rule that all debts will be wiped out by a chapter 7 bankruptcy. Some of the
more frequently seen exceptions are support payments to spouses and children,
debts incurred by fraudulent or tortuous activity and most tax debts.
Therefore, contrary to the
television and radio commercials that you may have heard offering hope by
eliminating tax debt in bankruptcy, most tax debts cannot be wiped out in
bankruptcy -- you'll continue to owe them whether you file a chapter 7 or
chapter 13. As it is often said, two things that you can't avoid are death and
taxes.
There are, however, a very small
category of tax debts that can be discharged in bankruptcy.
Under the current bankruptcy code, you are able to discharge or wipe out your
tax debt if all of the following conditions are met: (1) the taxes due are for
non - payment of income tax. Taxes such as payroll tax or fraud penalties can
never be wiped out. (2) The income tax debt is more than three years old. (3)
You must have filed a return. (4) The return must have been filed at least two
years before you file for bankruptcy. (5) Your return must have been truthful
and not fraudulent. (6) The income tax debt must have been assessed by the IRS
at least 240 days prior to your bankruptcy filing.
If your taxes qualify for discharge
in a chapter 7 be aware, however, that while a chapter 7 bankruptcy will wipe
out your personal obligation to pay the debt and prevent the IRS from going
after your bank account or wages, if the IRS recorded a tax lien on your
property before you filed bankruptcy, the lien will remain on the property. In
effect, this means you'll have to pay off the tax lien in order to sell the
property regardless of whether or not you filed a chapter 7 bankruptcy.
In a chapter 13 bankruptcy, which is
a debt repayment plan over time, you will be able to get relief from any action
being taken by the IRS to collect taxes. Like a chapter 7 a chapter 13 filing
invokes an automatic stay of any creditor collection activity, including an IRS
levy.
In chapter 13, however, while you
may get temporary relief, you will have to agree to pay your tax debt over time
as part of your chapter 13 plan. Should you fall behind on your agreed upon
plan payments, including payments to the IRS, it will likely result in the
dismissal of your case. So it is important, that if you file a chapter 13 plan
with the goal of postponing your taxes, that whatever plan you propose that you
stick with it during the term of the plan.
In the end, the answer to whether or
not your taxes can be discharged in bankruptcy is not black and white. It is a
definite color of gray and requires an experienced bankruptcy attorney to help
you through.
The law office of Mitchell Reed Sussman & Associates has specialized in real estate, bankruptcy and business litigation for over 30 years. They can be contacted at www.palmspringslitigationattorney.
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One of the most frequently asked
questions by consumers who are contemplating filing bankruptcy is: "Are
Taxes Due the IRS Dischargeable in Bankruptcy?"
This article by bankruptcy attorney,
Mitchell Sussman, answers these questions and more on the subject of what tax
debts can be discharged by the filing of a chapter 7 bankruptcy.
If you are eligible to file a
chapter 7 bankruptcy, virtually all of the debt that you owe will be
discharged. A discharge of debt obtained in bankruptcy means that you do not
have to pay the debt. It is one of the principal reasons for filing a chapter 7
bankruptcy.
Whether you are eligible to file a
chapter 7 depends on whether you can pass the "means test." A "
means test" separates those people with the financial means to repay their
debts, from those who do not have the means. If you do qualify under the means
test you will be able to file a chapter 7 and wipe out your debt.
There are exceptions to the general
rule that all debts will be wiped out by a chapter 7 bankruptcy. Some of the
more frequently seen exceptions are support payments to spouses and children,
debts incurred by fraudulent or tortuous activity and most tax debts.
Therefore, contrary to the
television and radio commercials that you may have heard offering hope by
eliminating tax debt in bankruptcy, most tax debts cannot be wiped out in
bankruptcy -- you'll continue to owe them whether you file a chapter 7 or
chapter 13. As it is often said, two things that you can't avoid are death and
taxes.
There are, however, a very small
category of tax debts that can be discharged in bankruptcy.
Under the current bankruptcy code, you are able to discharge or wipe out your
tax debt if all of the following conditions are met: (1) the taxes due are for
non - payment of income tax. Taxes such as payroll tax or fraud penalties can
never be wiped out. (2) The income tax debt is more than three years old. (3)
You must have filed a return. (4) The return must have been filed at least two
years before you file for bankruptcy. (5) Your return must have been truthful
and not fraudulent. (6) The income tax debt must have been assessed by the IRS
at least 240 days prior to your bankruptcy filing.
If your taxes qualify for discharge
in a chapter 7 be aware, however, that while a chapter 7 bankruptcy will wipe
out your personal obligation to pay the debt and prevent the IRS from going
after your bank account or wages, if the IRS recorded a tax lien on your
property before you filed bankruptcy, the lien will remain on the property. In
effect, this means you'll have to pay off the tax lien in order to sell the
property regardless of whether or not you filed a chapter 7 bankruptcy.
In a chapter 13 bankruptcy, which is
a debt repayment plan over time, you will be able to get relief from any action
being taken by the IRS to collect taxes. Like a chapter 7 a chapter 13 filing
invokes an automatic stay of any creditor collection activity, including an IRS
levy.
In chapter 13, however, while you
may get temporary relief, you will have to agree to pay your tax debt over time
as part of your chapter 13 plan. Should you fall behind on your agreed upon
plan payments, including payments to the IRS, it will likely result in the
dismissal of your case. So it is important, that if you file a chapter 13 plan
with the goal of postponing your taxes, that whatever plan you propose that you
stick with it during the term of the plan.
In the end, the answer to whether or
not your taxes can be discharged in bankruptcy is not black and white. It is a
definite color of gray and requires an experienced bankruptcy attorney to help
you through.
The law office of Mitchell Reed Sussman & Associates has specialized in real estate, bankruptcy and business litigation for over 30 years. They can be contacted at www.palmspringslitigationattorney.