Every year around tax season our clients ask us how bankruptcy will impact the tax refund they are expecting. Some of the questions posed include: Can I spend my tax refund before filing? Can I use my tax refund to pay for the costs of bankruptcy? Should I file bankruptcy before receiving my tax refund? These are all great questions and we will address them here.
The Impact on Taxes Depends on Which Chapter of Bankruptcy
At the outset, we need to clarify that bankruptcy potentially impacts tax refunds differently depending on which chapter of bankruptcy is at issue. In chapter 13 cases, the debtor is generally required to contribute all of their “disposable income” to repay creditors within the plan’s term. This generally requires the debtor to contribute their tax refunds to their chapter 13 plan, although there are some limitations that in many cases allow the debtor to keep some or all of their tax refunds.
Chapter 7 cases are liquidations, which requires the debtor to surrender or “liquidate” any property that is not exempt under Utah’s exemptions. Tax refunds are not exempt. This means that the trustee has a right to any tax refunds that were owed at the time the bankruptcy case was filed–even if the taxes have not been filed and won’t be filed for sometime (as in mid year). This also includes tax refunds that have been received and spent, unless the funds were used for a property purpose. A proper purpose is an expense that is exempt. For example, there is a $3,000 exemption in equity for one vehicle per filer. So you could use $3,000 of your tax refund before you file bankruptcy to purchase a vehicle, if you don’t already own one with equity.
Should I File Bankruptcy Before or After Receiving a Tax Refund?
The timing of filing bankruptcy can be a delicate issue when a tax refund is expected–depending on the time of year. Our generally recommendation at the beginning of a new year, in chapter 7 cases, is to wait to file bankruptcy until after you receive the tax refund and the refunds are already spent on expenses that will not cause additional problems.
How the refund is used is as important an issue as the timing of filing. If you use tax refunds for non-exempt purchases or some other expenses, then you could be required to pay in the tax refunds…even if the money has already been spent! Some examples of expenditures that cause problems include: repaying family members for friends for money they’ve lent to you, family trips, and pre-paying rent. This of course is only a partial list. The best advise we can give is to meet with an experienced and competent bankruptcy attorney BEFORE spending the tax refund to ensure your planned use of the refund won’t cause complications to your bankruptcy case.
Can I Use My Tax Refund To Pay For the Costs of Bankruptcy?
The attorney’s fees and other costs associated with filing bankruptcy are not exempt, so will using them to pay for bankruptcy cause a problem or require me to repay that amount to the trustee? The short answer to this question is using the tax refund to pay for bankruptcy generally will not cause a problem and is one of the best ways to use the refund before filing, to avoid losing the refund.
