Are Taxes Dischargeable in Bankruptcy?

Overview

When facing financial trouble and bankruptcy, don’t forget about the taxes.  While Chapter 12 bankruptcy contains a provision allowing for the deprioritization of taxes, there is no comparable provision for other types of bankruptcies.  But, for Chapter 7 and 11 filers, there is a possibility that taxes could be dischargeable in bankruptcy.  That’s because under those bankruptcy code provisions, a new tax entity is created at the time of bankruptcy filing. 

But, discharging taxes in bankruptcy is a tricky thing.  It involves timing and, perhaps, not filing successive cases.

The discharge of tax liability in bankruptcy – it’s the topic of today’s post.

The Bankruptcy Estate as New Taxpayer

As noted, for Chapter 7 (liquidation bankruptcy) or Chapter 11 (non-farm reorganization bankruptcy), a new tax entity separate from the debtor is created when bankruptcy is filed.  That’s not the case for individuals that file Chapter 12 (farm) bankruptcy, or Chapter 13 bankruptcy, and for partnerships and corporations under all bankruptcy chapters.  In those situations, the debtor continues to be responsible for the income tax consequences of business operations and disposition of the debtor's property.  Thus, payment of all the tax triggered in bankruptcy is the responsibility of the debtor.  The only exception is that Chapter 12 filers can take advantage of a special rule that makes the taxes a non-priority claim.  11 U.S.C. §1232.

Categories of taxes.  The creation of the bankruptcy estate as a new taxpayer, separate from the debtor, highlights the five categories of taxes in a Chapter 7 or Chapter 11 case.

• Category 1 taxes are taxes where the tax return was last timely due more than three years before filing. If an extension was filed, an individual’s return can last be timely filed on October 15^th.  In this case, the tax is dischargeable provided the bankruptcy is filed on or after October 16^th three years after the year the tax return was filed. These taxes are dischargeable unless the debtor failed to file a return or filed a fraudulent return. 
• Category 2 taxes are the taxes due within the last three years. These taxes are not dischargeable but are entitled to an eighth priority claim in the bankruptcy estate, ahead of the unsecured creditors. 
• Category 3 taxes are the taxes for the portion of the year of bankruptcy filing up to the day before the day of bankruptcy filing. If the debtor's year is closed as of the date of filing, the taxes for the first year, while not dischargeable, are also entitled to an eighth priority claim in the bankruptcy estate.  If the debtor's year is not closed, the entire amount of taxes for the year of filing are the debtor's responsibility.
• Category 4 taxes are the taxes triggered on or after the date of filing and are the responsibility of the bankruptcy estate. Taxes due are paid by the bankruptcy estate as an administrative expense.  If the taxes exceed the available funds, the tax obligation remains against the bankruptcy estate but does not return to the debtor.  Most bankruptcy trustees abandon assets if the taxes incurred will make the bankruptcy estate administratively insolvent.
• Category 5 taxes are for the portion of the year beginning with the date of bankruptcy filing (or for the entire year if the debtor's year is not closed) and are the responsibility of the debtor.

The election to close the debtor’s tax year.  In general, the bankrupt debtor’s tax year does not change upon the filing of bankruptcy.  But, debtors having non-exempt assets that will be administered by the bankruptcy trustee may elect to end the debtor’s tax year as of the day before the bankruptcy filing.

Making the election creates two short tax years for the debtor.  The first short year ends the day before bankruptcy filing and the second year begins with the bankruptcy filing date and ends on the bankrupt’s normal year-end date.  If the election is not made, the debtor remains individually liable for income taxes for the year of filing.  But, if the election is made, the debtor’s income tax liability for the first short year is treated as a priority claim against the bankruptcy estate, and can be collected from the estate if there are sufficient assets to pay the bankruptcy estate’s claims through the eighth priority.  If there are not sufficient assets to pay the income tax, the remaining tax liability is not dischargeable, and the tax can be collected from the debtor at a later time.  The income tax the debtor owes for the years ending after the filing is paid by the debtor and not by the bankruptcy estate.  Thus, closing the debtor’s tax year can be particularly advantageous if the debtor has substantial income in the period before the bankruptcy filing.  Conversely, if a net operating loss, unused credits or excess deductions are projected for the first short year, a short year election should not be made in the interest of preserving the loss for application against the debtor’s income from the rest of the taxable year.  Even if the debtor projects a net operating loss, has unused credits or anticipates excess deductions, the debtor may want to close the tax year as of the day before bankruptcy filing if the debtor will not likely be able to use the amounts, the items could be used by the bankruptcy estate as a carryback to earlier years of the debtor (or as a carryforward) and,

But, in any event, if the debtor does not act to end the tax year, none of the debtor’s income tax liability for the year of bankruptcy filing can be collected from the bankruptcy estate.  Likewise, if the short year is not elected, the tax attributes (including the basis of the debtor’s property) pass to the bankruptcy estate as of the beginning of the debtor’s tax year.  Therefore, for example, no depreciation may be claimed by the debtor for the period before bankruptcy filing.  That could be a significant issue for many agricultural debtors.

Consider the following example:

Sam Tiller, a calendar year/cash method taxpayer, on January 26, 2019, bought and placed in service in his farming business, a new combine that cost $400,000.  Sam is planning on writing off the entire cost of the new combine in 2019.  However, assume that during 2019, Sam’s financial condition worsens severely due to a combination of market and weather conditions.  As a result, Sam files Chapter 7 bankruptcy on September 5, 2019.

If Sam does not elect to close the tax year, the tax attributes (including the basis of his property) will pass to the bankruptcy estate as of the beginning of Sam’s tax year (January 1, 2019).  Therefore, Sam would not be able to claim any of the depreciation for the period before he filed bankruptcy (January 1, 2016, through September 4, 2019).

The Timing Issue - Illustrative Cases

As you have probably already figured out, timing of the bankruptcy filing is critical to achieving the best possible tax result.  Unfortunately, it’s often the case that tax considerations in bankruptcy are not sufficiently thought out and planned for to achieve optimal tax results.  Unfortunately, this point is illustrated by a couple of recent cases. 

Filing too soon.  In Ashmore v. Comr., T.C. Memo. 2017-233, the petitioner claimed that his 2009 tax liability, the return for which was due on April 15, 2010, was discharged in bankruptcy.   He filed Chapter 7 on April 8, 2013. That assertion challenged whether the collection action of the IRS was appropriate.  As indicated above, the Tax Court noted that taxes are not dischargeable in a Chapter 7 bankruptcy if  the return can last be timely filed within three years before the date the bankruptcy was filed.  Because the petitioner filed bankruptcy a week too soon, the Tax Court held that his 2009 taxes were not dischargeable and could be collected.  As a result, the IRS settlement officer did not abuse discretion in sustaining the IRS levy.  In addition, the Tax Court, held that the IRS did not abuse the bankruptcy automatic stay provision that otherwise operates to bar creditor actions to collect on debts that arose before the bankruptcy petition was filed. 

The Tax Court’s conclusion in Ashmore is not surprising.  The three-year rule has long been a part of the bankruptcy code.  Indeed, in In re Reine, 301 B.R. 556 (Bankr. W.D. Mo. 2003), the debtor filed the Chapter 7 bankruptcy petition more than three years after filing the tax return, but within three years of due date of return.  The court held that the debtor’s tax debt was not dischargeable.

The peril of multiple filings.  In Nachimson v. United States, No. 18-14479-SAH, 2019 Bankr. LEXIS 2696 (Bankr. W.D. Okla. Aug. 23, 2019), the debtor filed Chapter 7 on October 25, 2018 after not filing his tax returns for 2013 through 2016. Immediately after filing bankruptcy, the debtor filed an action claiming that his past due taxes were discharged under 11 U.S.C. §523(a)(1).  After extension, the debtor’s 2013 return was due on October 15, 2014.  His 2014 return was due April 15, 2015.  The 2016 return was due on April 15, 2016.  The 2016 return was due April 15, 2017.  The debtor had previously filed bankruptcy in late 2014 (Chapter 13), but the case was dismissed on January 14, 2015 after lasting 80 days.  He then filed a Chapter 11 case on November 5, 2015, but it was dismissed on April 13, 2016 after 160 days.  After that dismissal, he filed another Chapter 11 case on October 20, 2016, but it was dismissed on December 30, 2016 after 71 days.  He filed the present Chapter 7 case, as noted, on October 25, 2018.  Thus, as of October 25, 2018, he had been in bankruptcy proceedings from October 15, 2014 through October 25, 2018 -311 days. 

11 U.S.C. §523(a)(1)(A) provides, in general, that a discharge of debt in bankruptcy does not discharge an individual debtor from any income tax debt for the periods specified in 11 U.S.C. §507(a)(8). One of the periods contained in 11 U.S.C. §507(a)(8)(A)(i), is the three-year period before the bankruptcy petition is filed.  Importantly, 11 U.S.C. §507(a)(8)(A)(ii)(II) specifies that an otherwise applicable time period specified in 11 U.S.C. §507(a)(8) is suspended for any time during which a governmental unit is barred under applicable non-bankruptcy law from collecting a tax as a result of the debtor’s request for a hearing and an appeal of any collection action taken or proposed against the debtor, plus 90 days; plus any time during which the stay of proceedings was in effect in a prior bankruptcy case or during which collection was precluded by the existence of one or more confirmed bankruptcy plans.

So, what does all this mean?  It means that when a debtor files multiple, successive bankruptcy cases, the ordinary operation of the automatic stay 11 U.S.C. § 507(a)(8) and the three-year look-back rule is altered by 11 U.S.C. § 362(c)(3)(A) which specifies that if a debtor had a case pending within the preceding one-year period that was dismissed, then the automatic stay with respect to any action taken with respect to a debt or property securing that debt terminates with respect to the debtor on the 30th day after the filing of the later case.

Here, the debtor sought to have his 2013 and 2014 tax liabilities discharged in the present bankruptcy case under 11 U.S.C. §523(a)(1)(A) on the basis that the filing dates for those returns were outside the three-year look-back period.  He wanted a rather straightforward application of the three-year rule.  However, the IRS took the position that the three-year “look-back” period was extended due to the debtor's bankruptcy filings. The court agreed with the IRS, noting that the three-year look-back period began on October 25, 2015. But the court determined that the real issue was whether the look-back period extended back 401 (311 plus 90) days, or only for the first 30 days following each bankruptcy filing as provided by 11 U.S.C. § 362(c)(3)(A).

The court noted that the Congress, in 2005, amended 11 U.S.C. §507(a)(8) to codify the U.S. Supreme Court decision of Young v. United States, 535 U.S. 43 (2002) where the Supreme Court concluded that the tolling provision of 11 U.S.C. § 507(a)(8) was not impacted by the automatic nature of 11 U.S.C. § 362(c)(3)(A). Instead, for purposes of the tolling provision, the stay of proceedings was in effect in each of debtor's three previous cases until each was dismissed. In addition, the Congress amended the statute to tack-on another 90 days to the extension.  See, In re Kolve, 459 B.R. 376 (Bankr. W.D. Wisc. 2011).  The look-back period automatically tolls upon the filing of a previous case.  See, e.g., In re Clothier, 588 B.R. 28 (Bankr. W.D. Tenn. 2018).  Thus, instead of suspending the look-back period, it extends it and allows the priority and nondischargeability of tax claims to reach further into the past.  Thus, the court in the present case determined that the look-back period extended back three years plus 401 days. Since the debtor filed the bankruptcy petition in the present case on October 25, 2018, the three-year plus 401-day look-back period (80 + 160 + 71 +90) reached back to September 19, 2014. Because the debtor's 2013 and 2014 tax liabilities were due after that date (including the extension for the 2013 liability), neither was dischargeable in the current bankruptcy case. 

Conclusion

Bankruptcy planning should necessarily account for taxes.  The cases point out that timing of the filing of the bankruptcy petition is critical, and that successive filings can create tremendous complications.  Competent legal and tax counsel is a must, in addition to competent bankruptcy counsel.