Unfortunately, the information provided is insufficient to answer the question with certainty and, it would take a LOT of information to do that. Basically, the S Corp financials, ownership structure, pass through election info, reasons for loss, cash/book/tax loss reconciliations, etc. are all important to determine what income or loss you received from the S Corp. I will just assume (which is a BIG assumption) that you truly have negative income from the S Corp WHEN CALCULATED IN A WAY ACCEPTABLE TO THE BANKRUPTCY COURT.
So, to give you SOME guidance, 707(b)(7) compares "current monthly income" (CMI) to the applicable median family income. CMI is NOT an exact science, despite its apparent complexity.
Form 22 calculates CMI based on last 6 complete calendar months, but normally does NOT allow any "negative income" from a business to offset other sources of income. (Most software packages will allow you to input negative numbers, but then will ZERO those fields when calculating CMI). Trying to "hide" those losses in other parts of form 22 is not acceptable.
Aside from Form 22, the trustee can move to convert or dismiss, regardless of the 707(b)(7) calculation, just based on FAIRNESS and GOOD FAITH. Since the bankruptcy courts are courts of equity, both trustees and judges try to do the right thing by balancing debtor and creditor rights and responsibilities. Therefore, most trustees and judges will try to look at your situation with some sense of REASON, not simply a mechanical calculation, when assessing the fairness of your situation.
Since different districts and judges employ various interpretations of what is included in the definition of CMI, your results may vary quite a lot. Your income situation is not straightforward, so it HIGHLY RECOMMENDED you consult with a competent local bankruptcy attorney who knows the views of your local bankruptcy trustee and judges. A good bankruptcy attorney may also be able to advocate for an interpretation of CMI that is advantageous to your situation.
If you need further clarity, please email me at MICHAEL@MIRELAND.US Answers to questions are for general information purposes only and do not establish an attorney-client relationship. This is not legal advice, simply information. You SHOULD NOT act on this information without consulting a competent bankruptcy attorney in your area and providing ALL relevant information.
There is a good faith requirement that applies, even when the means test doesn't. However, large monthly disposable incomes have been tolerated in many cases; I've seen reports from other attorneys of as much as $2,000 per month.
On the other hand, how does the S corp keep losing money--by your continually loaning to it?
Be sure not to forget your mortgage and student loan debt as consumer debt when figuring out whether or not you have majority consumer debt!
Finally, the trustee can't do anything; he can just file a motion to dismiss. If you lost, you would still generally have the option of converting to Chapter 11 or 13.
All income coming to you has to be considered so naturally income from the sub S is taken into account. Your situation i.e. losses flowing through from the Sub S will require analysis as to what the losses are attributable to. Are these really cash flow type losses or losses resulting from depreciation type expenses. You may need to justify continue your funding of a loosing business and if you can do so (loss is temporary), you should be able the losses as a business expense.To the extent you have losses in the Sub-chapter S corporation.
This may also be the time to consider whether it is helpful to continue with the sub S or close it out, so the business income and expenses are merged. This of course will require thorough business and bankruptcy lawyer review.
Legal disclaimer: Disclaimer: This answer does not constitute legal advice. I am admitted in California and Pakistan only and make no attempt to opine on matters of law that are not relevant to California or Pakistan. This advice is based on general principles of law that may or may not relate to your specific situation. Facts and laws change and these possible changes will affect the advice provided here. Consult an attorney in your locale before you act on any of this advice. You should not rely on this advice alone and nothing in these communications creates an attorney client relationship.