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Owe IRS taxes, eligible to get them discharged, when to file 2013 return? (Pre-BK)

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  • Owe IRS taxes, eligible to get them discharged, when to file 2013 return? (Pre-BK)

    I owe about $7000 to the IRS and am currently on a monthly payment plan with which I am current. The taxes are from the 2010 tax year, meaning they were due on April 15, 2011, leading to the fact that it is dischargeable as of April 16, 2014.

    So right now, I plan to flle for chapter 7 on April 16, 2014. For my 2013 taxes, I will be getting a refund of about $1500. I haven't filed it yet, because I am worried the IRS will just take the refund. Since the tax will (hopefully) be discharged in bankruptcy, that would be basically giving the IRS $1500 that I don't have to.

    What kind of timing should I do? Do I have to file a 2013 return before I file chapter 7? Can I just file an Extension? Or maybe just apply the refund to 2014? Something else?

  • #2
    They will probably still take the refund as a setoff. I would seriously talk to a bankruptcy attorney about this as I may be incorrect. My reading is that you are already entitled to a "credit" since you claim a 2013 overpayment (or have other refundable credits). If you file in bankruptcy in 2014, then that overpayment is already in their hands. They may be entitled to a setoff of that 2013 refund regardless of when you file your 2013 income tax return. The IRS has specific rules on how they do this. No one can ever read the IRS Manual (IRM) and make sense of it. that's why an attorney is better.

    For purposes of bankruptcy, all tax returns that were due at the time of filing, must be filed (not necessarily before you file a petition for bankruptcy). So it would need to be filed so that the Government could make any claim.

    I would just live with the fact that it is very likely to be setoff by the IRS. I would not count on the money. If the IRS decides to not do anything and you are refunded the $1,500, then think of it as a gift.
    Chapter 7 (No Asset/Non-Consumer) Filed (Pro Se) 7/08 (converted from Chapter 13 - 2/10)
    Status: (Auto) Discharged and Closed! 5/10
    Visit My BKForum Blog: justbroke's Blog


    I am not an attorney. Any advice provided is not legal advice.

    Comment


    • #3
      I looked up AZ bankruptcy exemptions and don't see anything that can cover a $1500 tax refund. Unless I'm missing something in the exemptions, if the IRS doesn't take the refund and you don't receive it and spend it before you file BK, the trustee will probably take it. Your unspent 2013 refund is an asset that must be listed on your petition even if you haven't filed your tax return.

      The chances of both the IRS and the Trustee giving you a $1,500 gift is very small.
      LadyInTheRed is in the black!
      Filed Chap 13 April 2010. Discharged May 2015.
      $143,000 in debt discharged for $36,500, including attorneys fees. Money well spent!

      Comment


      • #4
        LITR, I forgot all about the Trustee. It's that time of the year where they are looking for refunds!
        Chapter 7 (No Asset/Non-Consumer) Filed (Pro Se) 7/08 (converted from Chapter 13 - 2/10)
        Status: (Auto) Discharged and Closed! 5/10
        Visit My BKForum Blog: justbroke's Blog


        I am not an attorney. Any advice provided is not legal advice.

        Comment


        • #5
          I was hoping that, by not filing until after the chapter 7 is finalized (and the back taxes discharged), I'd be good.

          If the IRS takes the $1500 (which is what they did to my refund last year), isn't that a preference that the trustee will have to redistribute? Not that it really affects me either way.

          Comment


          • #6
            Originally posted by avengers View Post
            I was hoping that, by not filing until after the chapter 7 is finalized (and the back taxes discharged), I'd be good.

            If the IRS takes the $1500 (which is what they did to my refund last year), isn't that a preference that the trustee will have to redistribute? Not that it really affects me either way.
            It would not be a preference. It would be a setoff. Also, as LITR aptly put it, the Trustee would be interested in some or all of that $1,500 if the IRS is not able to applytheir setoff rights.
            Chapter 7 (No Asset/Non-Consumer) Filed (Pro Se) 7/08 (converted from Chapter 13 - 2/10)
            Status: (Auto) Discharged and Closed! 5/10
            Visit My BKForum Blog: justbroke's Blog


            I am not an attorney. Any advice provided is not legal advice.

            Comment

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