The number of bankruptcy filings in Utah usually decreases significantly during the first quarter of the year (January through March). Filings will increase again through the rest of the year until the Holidays. The theory behind this is that people do not want to file for bankruptcy in the first few months because they do not want to lose their tax refund. Clients sometimes use their tax returns to pay attorney fees and filing fees for bankruptcy, which explains why the filings increase in the second quarter of each year. But if you’re considering bankruptcy, you may not be in danger of losing your tax refund. Likewise, your tax refund might not be safe just because you are filing after April. A good Utah bankruptcy attorney should be able to tell you what is going to happen to your tax refund if you file for bankruptcy.
Let’s take a look at what might happen to your tax refund in bankruptcy.
Tax refunds in Chapter 13 bankruptcy: anything over $1,000 goes to your creditors.
Treatment of tax refunds in Chapter 7 bankruptcy and Chapter 13 bankruptcy are different. We’ll take a look at Chapter 13 cases first because they’re less complicated. So, how do tax returns work in Chapter 13 bankruptcy?
If you are receiving a refund at tax time, then it is usually “extra money” in the sense that it is not included in the budget you filed with the court when you entered Chapter 13 bankruptcy. And because it is “extra money” it is sometimes subject to seizure by the trustee, and will be put towards repaying your creditors.
However, treatment of tax returns under Chapter 13 is relatively advantageous. In Utah, Chapter 13 plans generally include a provision that the debtor must show the trustee her tax returns each year, and must surrender any return over $1,000. So the good news is, you get to keep up to $1,000. And the other good news is that, even if you do have to give a portion of the refund up, it goes toward the arrearages, and other debts you owe in the bankruptcy, and it could help you complete the plan sooner!
Tax returns in Chapter 7 bankruptcy: the trustee is entitled any tax refund you would have accrued prior to filing, but sometimes it’s not worth it for them to bother taking the refunds.
As I mentioned, treatment of tax refunds in Chapter 7 bankruptcy is more complicated than Chapter 13. In short, what happens to your tax refund when you file under Chapter 7 depends on the time of year, amount of the refund, what part of Utah you’re in, and trustee assigned to your case. I’ll try my best to demystify everything for you.
(Also, I should quickly remind everyone that this information does not apply to all states. I am a Utah bankruptcy attorney, I have experience dealing with tax refunds in Utah bankruptcy filings, but not in other states. And this is one area of bankruptcy law where there can be really big differences between jurisdictions. So please keep that in mind as you read.)
First off, take a look at my previous posts discussing Chapter 7 bankruptcy if you are unsure of the difference between Chapter 7 and Chapter 13. Here’s a short summary: when you file under Chapter 7, everything you own is transferred into a “bankruptcy estate”. The bankruptcy estate includes tax refunds, since it is money that would go to you – and then maybe to your creditors – if you had not filed bankruptcy.
So technically, the trustee has a right to your tax refund from last year, if you haven’t received it yet. And the trustee also has a right to any portion of the tax refund you would have accrued prior to filing bankruptcy. So, for instance, if you make a regular salary, and you file bankruptcy in July, half-way through the year, the trustee has a right to keep half of your tax refund.
In practicality, however, the trustee will sometimes not bother keeping track of you in order to claim her portion of your tax return. If you are waiting to receive a tax refund, but it is small, the trustee may not bother keeping it. If the trustee believes that your upcoming refund will be small, based on looking at your recent tax returns, then she will probably not require you to show her your upcoming tax returns.
Treatment of tax refunds in Chapter 7 is a judgment call for trustees, and different trustees will be more or less stringent about collecting them. That is why it makes a difference where you’re filing and which trustee is assigned to your case. (An aside: Chapter 7 trustees are appointed from a pool of dozens of attorneys, as opposed to Chapter 13, in which the same trustee’s office handles all Chapter 13 cases in the state. This makes things in Chapter 7 less predictable.)
The good news is, if it’s the first quarter, and you’ve already received (and spent) your tax refund, the trustee will not be able to take it from you (with some notable exceptions). On the other hand, if you filed Chapter 7 bankruptcy during the time between filing your tax return and receiving your refund, you will probably have to turn it over to the trustee.
If you’re filing bankruptcy in the middle part of the year, then it will depend greatly on the trustee and the amount of the refund. If you’re expecting a large refund, then you should prepare to be giving at least some of it to the trustee at tax time.