Tim’s Tax News on the Tenth – September 2020
Timothy M. Hughes • September 10, 2020
CAN BANKRUPTCY DISCHARGE A TAX LIABILITY?
With the economic uncertainty created by COVID-19, many people have contacted our office about options in dealing with their debts, which for many include IRS debt. Over the years, our firm has helped numerous clients with tax debts via an Offer in Compromise, Abatement of Penalties, or favorable Installment Agreements. We have also in the right circumstances helped by filing bankruptcy for clients to eliminate (or greatly reduce) their tax obligations. Yes, some taxes can be discharged in bankruptcy.
Income taxes can be discharged if they meet a four-part test.
The first test is:
if the tax year is older than three years (for example 2016, which was due without an extension on April 15, 2017), you add three years to that filing due date arriving to April 15, 2020, therefore 2016 and earlier years could be discharged, provided that there was no extension. If, however, there was an extension, then October 16, 2020, would be the operative date, provided the next three tests are met.
Second test:
The returns must be filed at least two years before the bankruptcy filing date. A fairly straight forward and simple test, however, if the IRS were to prepare a return for the taxpayer (called a Substitute for Return –SFR), then that would prevent this test from becoming operative for the client. Assuming that no SFR was prepared and the returns were filed more than two years before, and then the year (or years’) liability could be discharged, provided the next two tests are met.
Third test:
The bankruptcy is filed at least 240 days after the IRS makes its assessment for that tax year. This simple step (but very critical), can be verified by reviewing IRS transcripts in a pre-filing due diligence step necessary to ensure the taxpayer’s taxes can be discharged.
Fourth test:
The last test is not as objective as the above three tests. The final test boils down to this question: “was the liability accrued as a pattern of fraud?” Again, like the first three tests, this test requires a thorough understanding of the client’s case, as well as being able to argue the merits of why the liability accrued.
The above four-part test is for both federal and state income taxes. Unfortunately, employment tax (trust fund) and sales and use tax are not dischargeable in bankruptcy.
Our firm has helped many of our clients to meet the four-part test requirements and to ultimately successfully have both their federal and state income taxes discharged in bankruptcy.
If you would like more details, please do not hesitate to call our office. Our office has been successful in helping taxpayers with IRS and IDOR collection problems for over 28 years. If you have a tax or debt problem, please contact me at 847-705-9698 or thughes@lavellelaw.com
and find out how we can help you.
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