One of the common problems encountered in bankruptcy practice is the timing of filing of a bankruptcy petition when the main problems are tax oriented. When large tax debts are the main problem of the debtor, delay in filing can be catastrophic. Conversely, rushing to file can be equally catastrophic. The attorney needs to have a clear understanding of the tax problems facing the taxpayer prior to deciding to file the petition. A mistake in waiting too long can result in the filing of a tax lien that transforms a dischargeable tax liability into a secured claim. A mistake in filing the bankruptcy too early can result in a discharge having been granted in the bankruptcy without discharge of the tax debt. BAPCA has lengthened the time between discharges and minimized the super discharge of Chapter 13 so that the survival of the tax debt subjects the debtor to future collection problems with the IRS. Survival of the tax debt will certainly create an unhappy ex-client. We all want to avoid this problem.
Our ideal result occurs when the taxpayer is able to discharge the entire liability owed to the taxing authorities and keep all of their property in a Chapter 7. This result can sometimes occur. However, the common result is usually not that good. The debtor is often forced into a Chapter 13 because of the means test. The debtor must be eligible for Chapter 7. Even if eligible for Chapter 7, some of the tax debt may survive. The taxes owed could be priority tax debt and therefore not dischargeable or a lien has been filed and remains attached to property and is therefore not dischargeable.
Bankruptcy attorneys usually meet their client after many of their financial problems have deteriorated into a mess. The debtor owes the IRS. The reason the debtor owes the IRS is their financial condition has deteriorated and there are no sources of money. The taxpayer has not filed returns, failed to pay payroll tax, owes sales tax, has enormous credit card debt, and yet is current on his big screen led high definition television and seven speaker custom home theater. Usually estimated taxes have not been paid because there were other financial problems. The payroll taxes were less important than making the next payroll and paying this month’s rent. It seems that it is easy for them to convince themselves that their circumstances will improve fast enough to fix their tax problems. Unfortunately, that usually does not happen. They fantasize that they will somehow just file all their tax returns and everything will workout fine. They have not filed until now because now they are in a vicious cycle that says, if I file my tax return I will have to pay the IRS now and the IRS will know I have not filed or paid earlier periods. Soon they have exhausted every resource available, including savings and retirement. Letters begin to arrive from the IRS. A revenue officer leaves his business card on the door, or the bank account is levied, or their employer tells them the IRS will be paid almost all of their wages. Now the fantasies are over and we meet our client for the first time.
The typical taxpayer with significant tax debt is self employed or owns a corporate business. Many times the debtor will be a tradesman, convenience store owner or trucker. The tax problems are often not limited to the IRS. State taxing authorities are often involved in collecting sales, income, and payroll debts of the taxpayer. When a business fails it will frequently owe payroll taxes and sales tax. These are trust fund taxes and normally are considered to be a priority debt in bankruptcy.
Taxes are rarely the only problem facing our client. Their downward financial spiral creates multiple problems to be juggled. Usually, as bankruptcy attorneys, we recommend filing bankruptcy. It is what we do as bankruptcy attorneys. We first recommend a bankruptcy because it is our main tool for helping a debtor. A bankruptcy can often provide help with many problems besides tax during the bankruptcy. Filing starts the automatic stay and it is always very attractive to have collection action stayed.
We often need to think of ways to help the debtor besides bankruptcy. Consider asking your client to rank his problems. Ask him which problems are locking him in to his difficulties. Ask if they feel that there is any way they can continue to juggle everything. Finally, ask if it is time to quit juggling and make critical changes to try to begin to eliminate the worst problems. Discuss the consequences of not changing their lifestyle to accommodate reorganization in a bankruptcy and after bankruptcy. Sometimes they do not change their lifestyle and will not be successful in resolving their financial problems.
Once your client has accepted that change is inevitable we can begin to think outside of our normal consumer case. When a bankruptcy will not immediately fully resolve the problems of the debtor we can begin to look at combinations of remedies available both inside and outside bankruptcy.
When the main problems faced by the debtor are tax oriented, immediately filing bankruptcy may actually not improve the debtor’s problems in the long term. Once the bankruptcy is filed the time requirements for dischargeability of the tax liability become set. All time periods that determine if a tax debt for a year is priority debt or dischargeable no longer run. Therefore, filing and triggering the automatic stay may cause the debtor to have to pay more of the tax debt than if one were to delay the filing.
One of the most obvious reasons for filing the petition is the tax debt is should be discharged in a Chapter 7 bankruptcy. The debtor must be eligible to file Chapter 7 and often must settle for the filing of Chapter 13 or Chapter 11 reorganization.
The eligibility requirements for income tax to be discharged in a Chapter 7 are deceptively simple. The basic requirements are:
A close examination of the taxpayer’s tax transcripts that have been obtained from the IRS prior to filing bankruptcy may reveal critical evidence of how the tax debts will be treated in bankruptcy. Reviewing the tax transcript is critical to that understanding. Often when you interview your clients, they are uncertain about their taxes. Look at the transcript for common hallmarks that can alert you to problems. If the interview tells you that the debtor owns a home or is self-employed, it is expected that the transcript will not show a Form 1040A was filed. Check to see if a return was filed. When a transcript shows that the type of income tax return filed was Form 1040A the tax may have been estimated by the IRS. Look for entries on the transcript, such as: substitute for return, examination, tax court, bankruptcy, collection due process, filing of lien, and collection appeal. If the transcript does not show these hallmarks the normal rules for determining dischargeability apply. The dates of assessments from an examination are important because of the 240 day rule.
Tax transcripts can be obtained from the IRS by your client requesting the transcripts from taxpayer service or collection. Alternatively, the client can fill out a power of attorney Form 2848 or a disclosure authorization which is Form 8821.
Often, the IRS files proofs of claims estimated liabilities for tax returns that have not been filed for years. This usually comes as a complete surprise and is not even on our radar screen. The effect of these estimated liabilities may greatly diminish the benefits of the filing of the bankruptcy and subsequent discharge order.
It is important to consider that electing administrative remedies, such as a payment agreement, will only affect forced collection of the tax debt. The taxing authority is not concerned with credit card or other debt, unless payment is needed to maintain the taxpayer’s ability to earn money. The taxpayer probably will not have resources to maintain minimum payments to all of the other creditors. However, a later bankruptcy can have an impact on this problem. Again, timing is everything.
Taxpayers have multiple administrative choices besides bankruptcy to resolve tax debt. The taxpayer can fully pay the tax debt at issue. The IRS may allow negotiation of an installment agreement using their collection standards. The debtor can file an offer in compromise to reduce the tax debt to a lower amount than actually owed. There are collection due process hearings to allow appeals to review whether the levy or lien was procedurally correct. The taxpayer can file a collection appeal. The taxpayer can litigate the tax debt if it was derived from an audit. The taxpayer can request abatement of penalties for reasonable cause. Relief from some or all of the tax liability may occur if the taxpayer is granted innocent spouse relief. Finally, they can negotiate a lower tax liability when audited.
The taxpayer owing state sales tax or income tax can sometimes apply for voluntary disclosure relief or amnesty from penalties and even interest. Every state has its own rules for regulating the collection of state taxes. The Texas State Comptroller presently has a voluntary disclosure program that can reduce penalties and interest when the taxpayer has not been contacted.
These choices can affect the dischargeability of the tax liability. It is important to consider how the dischargeability of income taxes and some other tax liabilities are affected by these bankruptcy alternatives.
The taxpayer will usually not be able to maintain any of the above choices with the IRS, or other taxing authority, if they are not in compliance with filing all tax returns and paying current and future tax. The IRS will look to determine if all of the tax returns have been filed. Usually they will limit this to looking at the current year and the prior six years. Any relief which could have been offered by these administrative remedies for tax debt is denied by not being in compliance with filing requirements.
Usually, the IRS will allow the taxpayer to file any delinquent returns. Normally, failing to file is not prosecuted if the taxpayer complies. However, failing to file multiple returns can become more serious. The failure to file returns can be an act of tax evasion or willful failure to file. These are criminal acts. Alarms should go off in the bankruptcy attorney’s mind when a taxpayer has a large tax debt, has failed to file returns for many years, avoids candid answers to your question, and has a lavish lifestyle. Referral of the client to a criminal defense attorney is reasonable advice.
Taxpayers that have not filed returns are also often not able to achieve the granting of a discharge in a bankruptcy. The bankruptcy code requires submitting the last two years tax returns to the trustee two weeks prior to the 341 meeting. Additionally, the tax authority can request the filing of delinquent returns. Failure to file the returns may result in dismissal of the case.
The IRS possesses the ability to estimate the non-filing taxpayer’s tax liability under 26 U.S.C. §6020. These estimates are called substitute for returns. This estimation is a form of audit and is normally handled by the audit division of the IRS. The taxpayer will receive letters stating that the return has not been filed, along with a proposed assessment of tax, penalty, and interest. The taxpayer can file the tax return within the prescribed time frame and avoid having a substitute for return. The taxpayer is allowed appeal rights and can ultimately contest the assessment in the U.S. Tax Court. The IRS calculates tax liability by using the gross income reported on information returns and then calculates the tax using married filing separate status and the standard deduction. Sometimes the estimate will be based upon prior filed years when no information returns have been filed. This results in the largest liability.
The statute of limitations for collection of the federal tax liability is normally ten years after the tax is filed and assessed, unless the federal tax lien is filed or the liability is reduced to judgment. The statute of limitations for collection does not begin to run if the taxpayer fails to file the return and the assessment becomes final. See 26 U.S.C. §6020(b). Taxpayers may continue to have the IRS show the liability still being owed many years after the tax would have become uncollectible if the tax return had been filed and the statute of limitations for collection of the tax had expired. This is a problem sometimes seen in bankruptcy practice. The substitute for return tax debt will remain a nondischargeable debt in bankruptcy, because a substitute for return does not start the two year rule under 11 U.S.C. §523(a)(1).
Substitutes for returns are normally not considered tax returns for purposes of 11 U.S.C. §523(a)(1). However, an audit report or stipulated judgment assessed after not filing a return can be considered a return if negotiated and signed by the taxpayer. A tax return tax that is filed after the substitute for return has become final and that does not change the liability has been considered a nullity because the tax return serves no purpose, In re Hindenlang, 164 F.3d 1029 (6th Cir. 1999). However, a debtor may be able to prove that their attempt to have a return accepted by the IRS was an honest and reasonable attempt to comply with the tax laws where the return is different than the substitute for return even though rejected by the Internal Revenue Service, In re Verheyden, 03-33046-HDH (Bankr.N.D.TX.).
The advantage of waiting to file the bankruptcy until the old tax returns have been filed AND ASSESSED is that the tax debt for those years are no longer treated as a nondischargeable debt in a reorganization. It is possible to request quick assessment by the IRS. Assessment normally precedes the first bill from the IRS. Nondischargeable tax debt and other nondischargeable debts are the lowest class of debt. Interest and penalty accrue on these debts. The plan can not pay interest on these debts. It may be possible to pay the interest directly outside of the plan.
Once the delinquent tax returns have been accepted for processing by the Internal Revenue Service the taxpayer may seek administrative remedies as shown above for the tax debt. The IRS will require disclosure of financial information on Forms 433 and 433b. They will apply their national and local financial standards for living expenses to determine available income for installment agreements and offers in compromise. Taxpayers can sometimes show that reasonable cause exists to allow different amounts than the financial standards. The financial standards are normally considered fixed by the IRS personnel.
An installment agreement is an agreement between the IRS and the taxpayer that allows the taxpayer to repay tax debt over time. There is a small cost of $43.00 to enter into an installment agreement. The IRS will continue to charge interest and penalty while the installment agreement is in effect. The IRS will apply the payments made by the taxpayer to the oldest tax years. Naturally, any tax that can be discharged in bankruptcy is the first tax paid. The IRS will usually file a federal tax lien when agreeing to an installment agreement.
Streamlined procedures ease the process of being approved for an installment agreement with the IRS if the total liability is less than $25,000. The amount of financial disclosure increases as the tax liability increases. The automated collection system segregates taxpayers with tax liability above $100,000 into one office, the Brookhaven campus. Detailed financial disclosure and very strict monitoring are required of the taxpayer.
An installment agreement will be reviewed periodically by the IRS to determine if the taxpayer has an ability to pay a higher payment. Failure to supply requested financial information, failing to make required payments under the agreement, and failing to remain in compliance will result in default of the installment agreement. Default of the installment allows the IRS to begin enforced collection.
The suspension of collection of the tax debt may occur when the taxpayer does not have the ability to make a payment because of insufficient income to pay minimal living standards. The IRS may review this determination of currently not collectable status periodically. However, the IRS can still seize property and considers social security a resource to be levied upon or included in an installment agreement.
The installment agreement and being determined currently non-collectable does not stop the running of time for dischargeability in bankruptcy. All three of the timing tests, which determine if the tax is a priority debt continue to run while in an installment agreement or currently not collectable status.
Entering into an installment agreement as a tool to age the tax debts can be very effective. However, the downsides of an installment agreement include paying money to tax debt that would be the first to be discharged and having prepetition interest and penalties make this remedy seem harsh. However, long term planning to obtain the best result may require aging the tax liability. This method does not work well if the taxpayer has significant equity in property that can be subjected to a properly filed lien or has significant income to substantially reduce the early year’s tax debt.
Since the passage of time is a crucial issue slowing the process of negotiation can be advantageous. A temporary agreement to pay tax while negotiating an installment agreement may allow the taxpayer to designate to which tax debt his required payments are to be applied. This can reduce the priority taxes, which is advantageous in a later bankruptcy.
Offers in compromise are a fabulous idea in principle. However, they rarely work out. Approximately eighty five percent are rejected by the IRS. There are two major problems that cause rejection or withdrawal of an offer in compromise. The first is the IRS determines that it is not in their best interest to accept the offer because the taxpayer has the ability to pay the debt. The second is the taxpayer can not afford the payment required under the offer. The amount of the payment required under the offer is determined the definition of a minimum offer. Alternatively, the IRS may allow the taxpayer to repay the liability over the remainder of the collection statute of limitations. The taxpayer agrees, as a condition of the offer in compromise, to extend the statute of limitations for collection for one year and the time the offer is pending or in effect plus six months. The taxpayer agrees to remain compliant in filing returns and paying taxes for five years after acceptance of the offer.
There are two major types of offers in compromise. They are doubt as to liability and doubt as to collectability. The offer in compromise based upon doubt as to liability takes into consideration litigation risk of the IRS being overruled. This is usually handled by audit. The offer in compromise based upon doubt as to collectability requires submission of substantial financial information. The minimum amount of the offer is based upon the taxpayer’s equity in all of his assets plus the amount that could be paid in an installment agreement over a specified period of time.
There are three specified durations of repayment of offers in compromise based upon doubt as to collectability. The first is a lump sum payment. This option uses forty eight months available income in an installment agreement in calculation of the minimum offer. The second is a short term payout is not more than twenty four months. The minimum offer requires application of taxpayer’s available income for sixty months. The third option is a payment over the remaining statute of limitations for collection.
A taxpayer is required to pay a $150.00 filing fee. Payments begin immediately even though the offer has not been processed. A lump sum offer requires twenty percent down payment at the submission of the offer. A short term payout requires monthly payments to start at the submission of the offer.
Usually, a loan or other source of money is required to fund the payment of the minimum offer. The minimum offer of taxpayer’s net assets and future available income typically exceeds monthly available income. The offer in compromise will most likely be unfeasible because the duration of payment requires compression of the future income into a short period. The amount of money repaid will normally exceed taxpayers’ ability to make the payments or pay the lump sum.
Offers in compromise are very important even though most likely rejected by the IRS. Normally the IRS will stop enforced collection while the offer is pending or in effect. This affects the calculation of time in a future bankruptcy. If the offer is filed during the two year test of 11 U.S.C. §507(a)(ii) the period is not tolled for the time of the offer. The three year aging test, 11 U.S.C. §507(a)(i) is not tolled. Therefore, an offer allows the three year rule and the two year filing rule to run once the 240 day rule has been met. The 240 day rule does not restart once met. This can still be an effective method of aging tax debt.
Almost anything the taxpayer attempts prohibiting the IRS from collecting the tax will stay the 240 day rule. The three year rule is only affected by extensions, bankruptcy, and collection due process hearings. The two year rule is only affected by extensions of time to file the tax return and failure to file the tax return.
Taxpayers that have large liabilities from a tax audit need to meet the 240 day rule after the assessment of the tax for the deficiency to be dischargeable. Use of almost all administrative remedies only extend this period. Therefore, if all of the other tests have been met, it is a reasonable assertion that collection by the IRS may be worthwhile accepting to improve a future bankruptcy. After all if the debtor has little property the tax lien has little value in bankruptcy and it may also be possible to have property seized or levied released because of a bankruptcy filing.
The most frequent situation encountered is that some of the tax debt will be unsecured, some will be subject to a lien and some will survive Chapter 7. Tax debt that is secured by property survives a Chapter 7 and the debtor will owe most of that debt after the discharge is granted unless property is surrendered. Tax debt that is not dischargeable because it is subject to 11 U.S.C. §507(a)(8)(C) or 11 U.S.C. §523 will not be discharged in Chapter 7.
Tax debts that are not dischargeable in Chapter 7 will be secured or will become priority debts in a Chapter 13 reorganization filed just after discharge in the Chapter 7. This is commonly referred to as Chapter 20. Debtor’s plan of reorganization must pay the tax over the life of the plan unless the creditor agrees to a different treatment. The IRS and other tax authorities will sometimes agree to a longer term of repayment.
Tax debts that are secured by a properly filed federal lien have supremacy over state property exemptions. They are repaid with interest if oversecured. Tight plans may work better if the debtor surrenders property. This can make the lien less valuable in the reorganization.
Eligibility for Chapter 7 is different for businesses and tax cases. The means test applies in Chapter 7 to consumer cases. It is well established that income taxes and other tax debts are not consumer debt, In re Westberry , 215 F.3d 589 (6th Cir. 2000). If the total of the business debt exceeds 50% of the total debt the means test does not apply and the debtor is eligible to file Chapter 7. The means test applies in Chapter 13 for business cases.
It is very important to carefully calculate dates for the purpose of determining dischargeability. If a lien was filed, examine it carefully. Sometimes the lien can be filed defectively.
Sometimes waiting to file will allow the debtor to drastically improve the effect of the filing of the bankruptcy. Understand, that waiting to file can sometimes subject the debtor to levy or the filing of liens if the IRS will not allow additional time. If the change in the amount of tax that will be discharged is great it may be reasonable to make hard choices that require hardship to obtain the best result.
We all know from our own advertisements that federal law may allow the stopping of a federal tax levy. This is a statement that our section of the bar and most federally appointed and approved debt relief agencies have spent many thousands of dollars promoting. However, it is safe to say most of us have not seen advertised that waiting to file bankruptcy can produce a better result. How often do we consider that negotiation of an installment agreement instead of a bankruptcy may allow the tax liability to become dischargeable in a bankruptcy filed soon after the installment agreement has been approved? How often do we consider that an offer in compromise may allow the tax debt to continue to age even if the offer is later rejected by the IRS? Of course, it is nearly inconceivable that the IRS could actually accept the offer in compromise your client proposed. Understand that the overall benefit of the stopping of the levy by filing a bankruptcy petition should be weighed against waiting until the tax liability has aged by using alternative remedies available under the various tax codes.
Consider the rules in the bankruptcy code carefully in advising filing of the petition. Find out if the tax liability is a trust fund tax such as sales tax or withheld social security and income taxes. Find out if the income tax liability has ever been changed by an audit or an amended return. Ask the debtor if they have been fighting the tax problems for a long period of time and what they have attempted to do to solve their tax problem. Look at the debtor’s overall lifestyle and the tax returns they have filed or not filed. These questions and others like them help you evaluate the timing and possible effect of the filing of the bankruptcy. Questions help us evaluate the complexity of the debtor’s tax problems and how we can best help them.
Trust fund recovery penalties are very interesting. These are not a penalty, just the assertion of joint and severable liability for the trust fund payroll taxes. They are normally assessed against all responsible persons who willfully favor any creditor over the IRS. Therefore, several people can be liable. Appeals of the liability may allow the other responsible persons time to be forced to pay the tax. A right to contribution exists for those payments. A reorganization filed before the assessment of the trust fund recovery penalty may provide an opportunity to have the other persons required to pay that debt and have them as possible creditors in the Chapter 13 or Chapter 11.
Non-trust fund payroll tax is treated almost like an income tax for purposes of dischargeability. All of the above applies. However, it is very important to designate that prepetition payments are to be assigned to the trust fund portion and not to the non-trust fund taxes.
Debts that are not dischargeable in a reorganization receive dividends after the payment of all unsecured debts have been paid in full. See 11 U.S.C. 1122(b)(10).That means the trustee will pay MasterCard and not the nondischargeable IRS claim.
Nondischargeable tax debt has become a fairly hot issue as there is a significant conflict regarding nondischargeable tax debt. The Office of the Chief Counsel for the IRS issued a release concerning nondischargeable tax debt on February 5, 2010. The tax years that have been assessed immediately prior to filing the bankruptcy can be a priority debt instead of nondischargeable. The memorandum shows increasing interest in this area. A copy of the memorandum is attached.
The filing of the bankruptcy does not stay the debtor taxpayer’s right to some forms of administrative relief such as innocent spouse relief, abatement of penalties for reasonable cause, and even settlement of a tax judgment for less than face value. These equitable relief remedies may be available by amended proofs of claim by the taxing authority. These administrative remedies do not limit the bankruptcy court from making a determination of the amount of any tax. Additionally, the bankruptcy court can determine the amount of the secured portion of the taxing authorities claim.
When tax is not discharged in a bankruptcy, the taxing agency has the ability to use enforced collection as the stay no longer applies to their remaining claim. The debtor can make effective use of the automatic stay to protect income and property after obtaining a discharge in the earlier case. The second case is a Chapter 13 in which the debtor does not receive a discharge at the completion of the plan. Interest and penalty compound because there is no discharge. However, use of a second bankruptcy may allow the debtor to more comfortably pay the nondischargeable tax debt. The stay does not expire at the end of thirty days and therefore, there is no need to request an extension of the automatic stay in the second case.
The debtor may not be able to file tax returns prior to being forced to file the bankruptcy. Dismissal of the bankruptcy after the taxes have been assessed, while risky, could possibly allow the debtor to have the taxes that were not dischargeable become a priority tax liability in the second case. Of course, the automatic stay would need to be extended and the debtor runs the risk of the trustee, a creditor, or the court, objecting to the extension of the automatic stay in the second case. Additionally, a creditor or trustee might seek dismissal with prejudice in the first case.
Careful planning can make a difference in the results obtained for your client. A planned reorganization can become feasible when it would not have been. Taxes can become dischargeable in Chapter 7 by being aware of the administrative remedies available outside of bankruptcy and using them effectively. Properly timing the bankruptcy to take advantage of these administrative remedies can sometimes greatly improve a debtor’s financial picture.
This article is not intended as legal or tax advice. Legal counsel should be sought for advice.
Copyright © 2012 William F. Kunofsky. All Rights Reserved.
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