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Would owed taxes from 2010 be discharged if i file for bankruptcy this year?

Dennis, MA |

I personally feel like i used a really uneducated lawyer for my bankruptcy who's just been giving me bad advice all around. my bankruptcy was filied 2/2/13 and my meeting of trustee's was 2/28/13. I hadn't filed this years taxes yet and at the meeting asked my lawyer about my taxes. he said I am fine that it would be discharged and to file. I am in literal bankruptcy (BROKE) and so i was really happy to hear this all though i was skeptical. but alright i filed and now my taxes where taken to pay my tax obligation from a previous year. i just want to know if its even worth calling the irs to see why or if my lawyer just totally gave me bad advice on thinking i would be able to keep my refund. This really stinks because i was actually in desperate need of that refund. plz help thanks.

Thank you all for your help.

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Attorney answers 5


In order for federal income tax debts to be dischargeable in a Chapter 7, the tax return for the year in question had to have been due at least 3 years before the date you filed for bankruptcy, you have to have filed your return for that tax year at least two years before you filed for bankruptcy, and the IRS has to have assessed the amount you owe at least 240 days before you filed for Chapter 7.

One important thing to know is that pending tax refunds are property of the estate in bankruptcy and must be disclosed on your schedules. Unless the expected refund from Tax Year 2012 was disclosed in your bankruptcy petition and an exemption applied to the full amount, the Chapter 7 Trustee still could have taken it and distributed it to your creditors.

The law around taxes in bankruptcy is very confusing so I'm wondering whether there may have been a miscommunication between you and your attorney. You should call him and tell him what your understanding was. If you are still unsatisfied, most consumer bankruptcy attorneys give free initial consultations and you can always seek a second opinion that way. Good luck.

This is intended for general informational purposes only and does not constitute legal advice or create an attorney-client relationship.


Your feelings are certainly valid, at least with respect to your 2010, 2011, and 2012 tax liabilities. Assuming that you did not file an extension of time to file your federal income tax return for the 2010 tax year, the earliest date that you could have filed a petition for bankruptcy and expected the 2010 tax liability to be dischargeable is April 18, 2014 (3 years after the date your 2010 federal income tax was due). (Note: 2010 federal income taxes were due on April 18, 2011--not April 15, 2011). If you have not filed your 2012 federal income tax return yet, any tax liability shown on that return will not be dischargeable in bankruptcy.

This response is for general informational purposes only. It does not create or imply an attorney-client relationship between the reader or any other person and Lapekas Law, P.A.. This response may not be relied upon to avoid civil penalties that may be imposed by the IRS regarding any matter discussed herein.


Atty. Dufresne nailed the rules on discharging taxes (as one might expect from a lawyer of his reputation and experience). Without knowing exactly what questions you asked your lawyer and what answers he gave you, it's hard to say whether you were misinformed or not -- although it kind of sounds like you were. The IRS will not answer your questions about this, by the way. But, even if you had delayed until April 15, 2014 to file (which would have been the soonest day to get your 2010 taxes discharged), the IRS would have offset your refund to pay the past-due taxes. So it doesn't sound to me off hand as though any misinformation you might have gotten actually harmed you.


Although there are limited exceptions, income tax obligations are typically non-dischargeable, As for those taxes that can be discharged, there are a few specific characteristics that must be present for the tax to fall within the category of exceptions , One of the first of these requirements makes it clear that in order for the tax to be dischargeable, the return in question must have become due more than three years ago.
For example, if your bankruptcy was filed after April 15, 3012 and provided it meets with a few other specific criteria, your liabilities from 2009 might be dischargeable. . However, liabilities from the 2010 tax year would not
typically be eligible for discharge unless your bankruptcy was filed after Alpril 15, 3013. Additionally, as mentioned earlier, this is just an initial requirement. Even if the tax debt is three years old, There are still a number of remaining factors that must be present before an accurate determination can be made as to as whether or not the tax for any given period would be discharged.

Although these matters can seem quite basic at first glance, there are often times individual factors that cause to complicate the analysis.

Therefore I suggest that you discuss this matter with your attorney so that he or she can explain their perspective.
In the event that there was an error of some kind, perhaps it can be amended


With regard to the tax refund, the tax discharge rules are moot, the IRS is entitled to offset back taxes with a refund once the refund is earned (which happens on 12/31/xxxx). You filed BK on 2/2/13, the bankruptcy does not prevent the IRS from keeping the refund. Sorry. The issue is cut and dry.

11 U.S.C. 362(b)(26)