I see this is split about 50/50 amongst attorneys. I tend to think you or your employer put these funds into the IRA years ago, and a withdrawal is like taking money out of your savings account. Taxable by the IRS, yes, but not considered income for bankruptcy purposes. This affects when I can file. Is this concept in the bankruptcy code?
Chapter 13 Bankruptcy Attorney
Early withdrawal from a retirement account is not considered income for the mean's test, however, it is considered cash when it comes to your assets. If the money remains in a retirement account it is completely exempt from becoming part of the bankruptcy estate and thus accessible to the Trustee for the benefit of your creditors. If you take a withdrawal, that money is now cash, that can be accessible to the Trustee if it is not properly protected by any other exemptions. Seek the assistance of an experienced bankruptcy attorney before filing. Feel free to contact me if you have further questions.
It is like withdrawing money from your savings account, not income, but the IRA account is an asset which you can fully exempt under most circumstances. Once the money is withdrawn, the BK trustee will ask you how you spent it, or you can exempt the cash using your "wildcard" exemption.
I can't believe that your findings are that 50% of the attorneys are wrong. Your survey must be very limited, or you just found a lot of attorneys that do not understand the law. This is not something that can "go either way" as your survey seems to indicate. IRA deposits were income when they were made years ago. Taxability is not relevant in means test calculations. Received and derived during the prior 6 months, would not include an IRA received and derived years ago.
Personal Injury Lawyer
Taking money from IRA is considered income, and if you withdraw a sum that is large enough to inflate your income, it may compromise your chances to qualify for a Chapter 7.
The answer above should not be relied upon as legal advice. The information provided above is based on insufficient facts and only speaks to a general opinion based on those insufficient facts. No warranty is provided that the answer is correct. No attorney-client relationship has been formed with me until a signed written contract is complete. For an official opinion, it is advised you seek legal counsel.