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Pre Chapter 7 filing tax lien, concerns about retirement benefits after discharge

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  • Pre Chapter 7 filing tax lien, concerns about retirement benefits after discharge

    I file Chapter 7 in three weeks and am concerned about an existing tax lien and my ERISA early retirement annuity paid by my former employer which I started receiving at age 55. I am in Not Collectible Status since 2009, the annuity began paying out at age 55 in 2010. My only other income is $2400 monthly from Social Security Disability. The annuity is $700 a month.

    I meet the three year and 240 day rules for discharging IRS taxes originating in years 2001 through 2009, presently about $12,000 in tax, interest and penalties.

    My attorney says the taxes should be discharged and I can just ask the IRS to negate the lien after discharge.

    But I'm concerned that the lien trumps the exempt status of my retirement annuity. This is a fully funded employer annuity; I paid nothing during my 20 years employment to earn the annuity.

    Should I assume that the IRS will attempt to collect my monthly annuity to satisfy the lien after the tax is discharged? Isn't the annuity a pre bankruptcy petition asset, thereby fair game for the IRS after discharge?

  • #2
    Just follow the advice of your attorney. The IRS is pretty good at doing the right thing (in the majority of cases). If the taxes were dischargeable, then the IRS almost always discharges the taxes. There is really nothing to do other than to file bankruptcy, receive your discharge, and then see what the IRS determines (in their Insolvency Department). Unless and until you know the IRS' actual position, there is no reason to speculate what may occur. Your attorney is correct that you just wait and see how the IRS treats the taxes and any Federal Tax Lien.

    Once all that occurs and if the IRS comes back and says that the lien attaches to all pre-petition property, then you can ask questions about what to do.
    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.


    • #3
      Thanks, JB


      • #4
        If I'm not mistaken one of our members, who is a BK attorney, posted about the process that they use. Their firm typically sends a letter to the IRS asking for the lien to be removed. Perhaps your attorney will use a similar tactic.

        In fact, check out this post from desprifreya.
        Last edited by justbroke; 05-21-2014, 08:19 PM.
        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.


        • #5
          I wanted t update my case. I was discharged in October and last week received two letters from the IRS stating I had been released from my two tax liens. I did nothing other than list the tax years on my petition, which met the criteria for discharge, and waited. I was gearing up to begin writing the IRS or calling, and, surprise, the tax lien releases were in my mail box.

          I didn't go through the process of valuation of the liens, as my attorney said in his practice he only listed the eligible tax years on the Chapter 7 petition and that if I wanted representation exceeding that he could recommend a tax attorney. He did evaluate my IRS transcripts and said the met the discharge criteria and that I should wait until discharge to contact the IRS about releasing the liens.

          I guess I got luck. Thanks for the feedback from the forum.


          • #6
            You did not get lucky, so to speak. As I wrote earlier, the IRS is actually pretty good at doing the right thing. If the taxes were dischargeable, then the IRS will typically mark them as discharged. If the IRS did not do the right thing, that is when you would re-open the case (if closed) and file the lien strip or "motion to determine secured status" with the court.
            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.


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