Collecting on debts after a BK has been completed.

Asked 4 months ago - San Diego, CA

I filed bankruptcy a year ago. The attorney who filed my BK said that the taxes from the irs and FTB could be discharged. The BK was granted in July of last year. Now I have the irs trying to collect on taxes that were included in the BK and the FTB has garnished the IRA that my dad left me when he passed. Do I not have any recourse? Can they come back a year later and collect on debts that were discharged through the BK?

Attorney answers (6)

  1. James Liu

    Contributor Level 14

    4

    Lawyers agree

    Answered . Taxes are dischargeable under certain criteria - however, its not an automatic discharge. You should contact your bankruptcy attorney to see what happened, then maybe consult with a tax attorney as well to see if you can work out some form of offer in compromise if the taxes were not discharged.

  2. Stuart Gregory Steingraber

    Contributor Level 17

    2

    Lawyers agree

    Answered . The general rule is that debts owed to the government (IRS) are NOT dischargeable. If you lawyer said otherwise, he/she needed to take steps by having the BK court make a determination that the IRS debt was dischargeable. That usually means filing an adversary complaint in your BK case, serving it on the IRS and requesting the judge to render a decision. Sounds like none of that happened, thus the IRS is still trying to collect. If all the circumstances for discharge of government debt are there, you might be able to reopen your case and take the necessary steps outlined above. Good luck.

    You are not my client and I am not your attorney. This advice is given in the spirit of the AVVO platform and is... more
  3. Harris Justin Brumer

    Pro

    Contributor Level 13

    2

    Lawyers agree

    Answered . For tax debts to be dischargeable, you must have filed for that tax year. Additionally, the only tax debts which are dischargeable are those outside the last three tax years.

    So, for example, if I have filed for every tax year, and I filed a BK and received a discharge, I could discharge tax debts for TY 2010 and beyond. TY 2013, 2011, and 2010 would not be dischargeable because they fall within the 3 year window.

    I would re engage with your BK attorney.

    Best of luck.

  4. Michael Raymond Daymude

    Pro

    Contributor Level 20

    1

    Lawyer agrees

    Answered . Respectfully, Asker, this is a question only your BK attorney or a newly retained attorney can help you with. I strongly suspect your taxes were not discharged, for any one of several reasons. You need to step up to the plate and pay counsel to review your matter and take action, if appropriate.

    My answers are for general information only. They are not legal advice. Answers assume California law. I am... more
  5. David Watson Wiese

    Contributor Level 10

    Answered . If the income tax satisfies any of the following conditions it is nondischargeable.
    i. If tax the tax became due less than three years prior to filing bankruptcy.
    ii. If tax returns were not timely filed.
    iii. If tax was assessed less than 240 days prior to filing bankruptcy.
    iv. If there was a finding of fraud or willful evasion.

    If the conditions above don't apply the income tax is typically discharged in the ordinary course of the bankruptcy case. But note that some events can toll the running of the times referenced above. For example, the time periods toll during an offer in compromise.

  6. Sandra A Kuhn Esq.

    Pro

    Contributor Level 17

    1

    Lawyer agrees

    Answered . You should call your bankruptcy attorney to see what happened. It is possible the taxes were not old enough to be discharged. There is not enough information in your question to know that. It is also possible that the appropriate IRS office was not notified. You need to call your attorney.

    No photo
    Asker
    Posted 4 months ago.

    Hello,
    I have contacted her on many occasions. He response is for me to call or send the BK information to the irs and FTB. The FTB is trying to collect in taxes from 1998 and the irs is trying to collect on taxes from 2006. My attorney at the time assured me that these were discharge able and that both the irs and FTB owed me money for my returns they had kept and the money they had garnished. I am very confused and neither agency is willing to help.

    Sandra A Kuhn Esq.
    Sandra A Kuhn Esq., Bankruptcy Attorney - Concord, NH
    Posted 4 months ago.

    There is more to it than that. When did you file the taxes? Were there any issues with fraud/misrepresentation?

    No photo
    Asker
    Posted 4 months ago.

    I didn't file the state taxes. Most we're discharged but the FTB is still trying to collect for 1998. The taxes for the irs were filed by the irs back in 2009. When I asked if I should file the irs told me I didn't need to file again as they were already filed.

    Sandra A Kuhn Esq.
    Sandra A Kuhn Esq., Bankruptcy Attorney - Concord, NH
    Posted 4 months ago.

    Generally you cannot discharge taxes that were never filed. Again, check with your attorney.

    Michael Raymond Daymude
    Michael Raymond Daymude, Bankruptcy Attorney - Sherman Oaks, CA
    Posted 4 months ago.

    Respectfully, Asker, this is a question only your BK attorney or a newly retained attorney can help you with. I strongly suspect your taxes were not discharged, for any one of several reasons. You need to step up to the plate and pay counsel to review your matter and take action, if appropriate.

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