If you are thinking about filing bankruptcy and have a tax refund coming, you can usually keep your refund if you get advice about doing so.
You may have heard that if you file bankruptcy you risk losing your tax refund. Here’s why that won’t happen if you plan it right.
Bankruptcy as “Liquidation”
Most people who file a Chapter 7 “straight bankruptcy” keep all they own and lose nothing to the bankruptcy trustee. That’s because for most people everything they own is covered by “property exemptions.” You are allowed a certain amount of possessions and property, and as long as you have less than the allowed amounts in the allowed categories you can keep all that you own.
However, you may have heard that Chapter 7 is a “liquidation” form of bankruptcy. In theory that means that if you own anything that is NOT exempt the trustee gets to take it from you, “liquidate” it—turn it into cash, and distribute that cash among your creditors.
Why Tax Refunds Can Be at Risk
Tax refunds are more troublesome than other kinds of assets mostly because of a timing consideration.
Chapter 7 fixates on what you own at the moment your case is filed. But you legally own not just what is in your hands at that moment but also money owed to but not yet delivered to you. Your 2014 tax refund is considered fully owed to you as soon as 2014 is over—immediately after December 31, 2014. But of course you can’t get that refund into your hands for at least a few weeks, and sometimes for several months. If you file a Chapter 7 case in the meantime–after December 31, 2014 but before receiving and appropriately spending the refund money—that money is your asset and could be taken from you by the bankruptcy trustee when the refund check arrives, if it is not exempt.
You Can Keep Your Refund If It’s Exempt
What’s the maximum amount of a pending tax refund that would be exempt—protected from seizure by your Chapter 7 trustee?
That is a surprisingly complicated question, the answer to which depends on the exemption law applicable to the state where your bankruptcy case is filed (or the state where you lived in earlier if you’ve moved from another state recently). There is a federal system of exemptions and each state has its own system. Each state also gets to decide whether its system of exemptions must be used for bankruptcies filed there or whether people can choose between its exemptions or the federal one.
After determining which system of exemptions to apply, the next step is to determine which category of exemptions the tax refund would fit into, the dollar amount of that exemption, and whether that exemption category needs to be also used to protect something else you own (thus reducing what is available for the tax refund).
To give an idea how this works in practice, let’s look at the federal system of exemptions. Like most state exemption systems, it does not provide an exemption specifically for tax refunds but rather a “wildcard” exemption for anything not covered by other exemptions. The federal “wildcard” exemption is $1,225.
But it has a twist in that you can add as much as $11,500 to the basic “wildcard” amount IF you don’t use a “homestead exemption” to protect the equity in your home. So if you are renting or your home has no equity to protect, you have as much as $1,225 + $11,500, or $12,725 total “wildcard” exemption for protecting a pending tax refund. That $12,725 amount would be reduced by whatever else you owned that also had to be protected by this “wildcard” exemption.
If the Refund Is Not Exempt, Wait to File Chapter 7 Case Until After Getting and Spending the Refund
As high as this amount is, remember it could be as low as $1,225 if you needed to use the homestead exemption, or even less if you needed part of that $1,225 for something else you owned. And some state “wildcard” or other applicable exemptions amounts are lower.
Under these circumstances a better tactic often is to wait to file your Chapter 7 case until after you have received the tax refund AND have spent it in an appropriate way, so that it is no longer your asset. We emphasize “appropriate” because there are a number of ways you can spend money right before filing bankruptcy which would be counterproductive or even dangerous vs. other uses of your money that would be beneficial and safe. Because each person’s situation is different, be sure to talk with your bankruptcy attorney about whether you should wait, and if so how you should spend the refund money when you get it.
Your pending tax refund can usually be protected one way or the other when you are filing a Chapter 7 bankruptcy case. Often it is fully exempt and simply yours to keep. If not exempt, you can usually avoid the risk of the trustee taking all or part of the refund by holding off on filing the bankruptcy case until after you have received and spent the refund. At that point the tax refund is no longer your asset for bankruptcy purposes.