There are two concerns regarding tax refunds in bankruptcy. Depending upon whether you are in a Chapter 7 or a Chapter 13, those concerns are slightly different.
Tax Refund Already Received—A tax refund you have already received prior to filing, but have not yet spent, is part of the bankruptcy estate and treated like cash. You may be able to use exemptions to protect the money.
Tax Refund Expected—A tax refund expected but not yet received is also part of the bankruptcy estate to the extent it relates to income earned prior to the date you filed your Chapter 7 bankruptcy. As a worst case scenario you will be required to turn over the return to the trustee. However, your bankruptcy attorney can also use exemptions to protect the expected tax refunds in bankruptcy, the same way you can protect money that is in a savings account. The important thing is to disclose the expected return and exempt it in the bankruptcy filing.
Tax Refund For Years After The Filing—A tax refund received for income earned during a tax year after the year you filed bankruptcy (and all future returns) are yours to keep. They are not part of the bankruptcy estate.
Tax Refund Already Received—A tax refund you have already received will be treated as an asset. While the trustee may not take the tax refunds in bankruptcy, any assets you own play a role in determining the amount you will ultimately pay to creditors in the Chapter 13. The refund, if it can not be exempted, may bump up your Chapter 13 payment.
Tax Refund Expected—The safe assumption regarding tax refunds in an ongoing Chapter 13 is that they will become property of the trustee. While you may use exemptions to protect an expected return, the typical Chapter 13 plan is 36 to 60 months.
Tax Refund For Years After The Filing—The same answer as directly above applies here.
What Can I Do To Plan Around This?
In a Chapter 7, you can spend your tax refund prior to filing. Or, make sure to put your attorney on notice that you expect to receive a return and be sure to exempt it or postpone filing until the asset has been spent on allowable items.
In a Chapter 13, tax refunds in bankruptcy represent an ongoing issue and the easiest way to manage it is to reduce your withholdings so that you’re receiving more in your paycheck on an ongoing basis rather than ‘storing’ up money with the IRS which will result in a large return.
If you do receive a refund in a Chapter 13, disclose the return each year to the trustee. Each trustee’s policies (in different districts) differ. If you can show that you need some or all of the return for necessary expenses like home repairs or vehicle repairs, you may be able to keep some or all of the return. Your bankruptcy attorney should assist you in making this disclosure to the court, together with the argument that you have a need to use the return vs. it going to the trustee.
Call a Charlotte bankruptcy attorney today and get your questions answered. You can begin planning today for a successful bankruptcy in the future. 704.749.7747. The call is free and I’m here to help.