5.9.2  The Bankruptcy Code and Collection

5.9.2.1  (05-20-2008)
Introduction to the Bankruptcy Code – 11 USC

  1. "Fresh Start" Concept. Federal bankruptcy law embraces the entire field of debtor-creditor relationships to provide a uniform and equitable method to distribute the debtor's assets to the debtor's creditors. At the same time it gives the debtor an opportunity to start over with a clean (or at least improved) financial slate. This section deals with the Bankruptcy Code and its impact on tax collection.

    Note:

    See IRM 5.9.2.9.1, Bankruptcy Discharges and Collection, at the end of this section for a summary of the effects bankruptcy discharges have on the overall collection process.

  2. The Bankruptcy Code. Initially individual states, not the federal government, enacted insolvency laws. Bankruptcy law is now codified in Title 11 of the United States Code (11 USC) and known as the Bankruptcy Code which establishes the law under which bankruptcy proceedings are commenced, administered, and closed.

  3. Chapters of the Bankruptcy Code. The Bankruptcy Code is divided into chapters:

    • Chapters 1, 3, and 5 contain general provisions applicable to all types of bankruptcies

    • Chapter 7 deals with liquidating bankruptcies

    • Chapter 9 concerns debts of a municipality

    • Chapter 11 provides information on reorganizations of individuals and corporations

    • Chapter 12 concerns family farmer and family fisherman reorganizations

    • Chapter 13 deals with reorganizations of individuals with regular income

    • Chapter 15 addresses cross-border bankruptcies

  4. Adjustments of Dollar Amounts in Bankruptcy Code. At three-year intervals, automatic adjustments of dollar amounts in effect under certain sections of the Bankruptcy Code are made to reflect changes in the Consumer Price Index (11 USC § 104(b)(2)). The latest scheduled automatic adjustments were on April 1, 2010, and future adjustments will continue at each three-year period ending on April 1 thereafter. The various sections of the Bankruptcy Code affected include:

    • 101(18) & (19A) (debt limits under definition of family farmer and family fisherman)

    • 101(51D) (definition of small business debtor)

    • 109(e) (allowable debt limits for filing under Chapter 13)

    • 507(a) (priority claims)

    • 522 (exemptions allowed to the debtor)

    • 707(b) (means testing provisions)

    • 1322(d) (current monthly income levels for determining duration of Chapter 13 plans)

    • 1325(b) (definition of disposable income)

    These amounts are published in the Federal Register one month before the effective dates of the changes. These adjustments do not apply to cases filed before the date of such adjustments (11 USC § 104).

5.9.2.2  (03-01-2006)
Bankruptcy Code Chapter Organization

  1. Organization. Chapters 1, 3, and 5 of the Bankruptcy Code apply to all proceedings unless modified by a specific provision under a proceeding type. The Bankruptcy Code sections listed under each chapter are not all inclusive but have been added as a general reference.

  2. Chapter 1, General Provisions.

    • Section 101, Definitions

    • Section 105, Power of Court

    • Section 106, Waiver of Sovereign Immunity

    • Section 109, Who May be a Debtor

  3. Chapter 3, Case Administration.

    • Section 302, Joint Cases

    • Section 361, Adequate Protection

    • Section 362, Automatic Stay

  4. Chapter 5, Creditors, Debtor, and the Estate.

    • Section 522, Exemptions

    • Section 523, Exceptions to Discharge

    • Section 524, Effect of Discharge

    • Section 541, Property of the Estate

    • Section 542, Turnover of Property of the Estate

    • Section 553, Setoff

5.9.2.3  (03-01-2006)
Chapters in Bankruptcy

  1. Bankruptcy Options. Bankruptcy is separated into two general categories:

    1. Liquidation — Chapter 7 and liquidating Chapter 11 — liquidation of assets to pay off debts; or

    2. Reorganization — Chapters 11, 12, 13 — reorganizing to pay creditors over a period of time through a plan.

  2. Chapters of Bankruptcy. The chapters under which persons can file for bankruptcy protection are:

    1. Chapter 7 - Liquidation. A proceeding filed by an individual, business, or other entity, including corporations and partnerships, to pay creditors through liquidation and distribution of the debtor's assets.

    2. Chapter 9 - Adjustment of a Municipal Debt. A bankruptcy filed by a municipality, generally authorized to be a debtor by state law, which is insolvent or unable to meet its debts as they mature, and desires to effect a plan to adjust those debts.

    3. Chapter 11 - Reorganization. A proceeding filed by an individual (except stockbrokers or commodity brokers), business, or other entity (primarily a corporation) where creditors are paid under a plan, often long term.

    4. Chapter 12 - Family Farmers and Fishermen. A reorganization proceeding for family farming or fishing operations, with characteristics of bankruptcy issues in both Chapters 11 and 13. (The farmer or fisherman is allowed to remain in business while formulating a plan to pay creditors.)

    5. Chapter 13 - Individuals. A voluntary reorganization of debts for individual debtors (including wage earners and sole proprietors) under the direction of a trustee who disburses payments to creditors. (Repayment is through a plan, which the court can approve for up to 60 months. For bankruptcies commencing prior to October 17, 2005, the debtor receives a super discharge after successful completion of the plan. Certain tax debts are excepted from discharge for bankruptcies commencing on or after October 17, 2005.)

    6. Chapter 15 - Cross -Border. Opened when a foreign court or a foreign representative seeks assistance in the United States in connection with a foreign proceeding; assistance is requested in a foreign country in connection with a case under 11 USC; a foreign proceeding and a domestic bankruptcy for the same debtor are pending concurrently; or creditors or other persons in a foreign country have an interest in requesting the commencement of, or participating in, a case or proceeding under 11 USC.

5.9.2.4  (09-10-2010)
First Meeting of Creditors

  1. Section 341 Meeting. The debtor must attend the first meeting of creditors (often called the 341 meeting) if held, to be questioned under oath by creditors and the trustee concerning financial affairs, debts, and property issues. The Service can obtain pertinent information at the 341 meeting on specific tax matters. (See paragraph (4) below.)

  2. Order Not to Hold 341 Meeting. For cases filed on or after October 17, 2005, the court may, after notice and hearing, order the trustee not to hold a 341 meeting if:

    1. a party in interest requests no meeting be held;

    2. the debtor has filed a plan; and

    3. the debtor has solicited acceptances to the plan from the creditors prior to the commencement of the case.

    Caution:

    If IRS's acceptance of the plan was not solicited, if unresolved issues exist, or if the caseworker wants to question the debtor at a 341 hearing, Insolvency should refer the case to Counsel to object to the motion to forgo the first meeting of creditors.

  3. Insolvency Attendance. Field Insolvency will attend any 341 hearings, including hearings for cases assigned to the CIO, if warranted. However, some courts will not permit Insolvency specialists or advisors to question the debtor at the 341 hearing. BAPCPA has not changed this limitation. If an Insolvency employee feels (s)he will not be allowed to question the debtor, the case should be referred to Counsel to ask for legal representation at the hearing.

  4. CIO Cases. If a CIO caseworker determines attendance at a hearing for a Chapter 7 case under the CIO’s control is needed to question the taxpayer concerning tax matters or existence of assets, a CIO manager will contact the Field manager handling that court’s cases and request a Field specialist or advisor attend the hearing on behalf of the IRS.

    1. The case must be transferred from the CIO inventory to the Field Insolvency inventory until the hearing has been completed.

    2. The CIO manager will provide the Field manager the questions to ask the debtor.

    3. The specialist or advisor attending the hearing will update the AIS history with questions asked and answers received.

    4. The case must be transferred back to the CIO inventory (unless issues arise during the § 341 meeting that require a referral to Counsel in which event the account will remain under Field control until the resolution of the referral).

    5. The CIO caseworker will base his next actions on the debtor’s responses.

  5. Possible 341 Hearing Issues. After reviewing available information, an IRS representative may determine attendance at a 341 hearing is warranted. (S)he can pursue information such as:

    • potential Trust Fund Recovery Penalty liability (including names, duties, and responsibilities of officers)

    • employment tax obligations

    • self employment tax issues

    • assets not disclosed or undervalued on the schedules

    • fraud referral potential

    • deadlines for unfiled tax returns

    • unreported income

    • improperly scheduled items; such as, scheduling the Service's secured liability as unsecured or listing excluded property as exempt on Schedule C - Property Claimed as Exempt

  6. Questioning Debtors. Caseworkers questioning debtors during the 341 meeting or when providing testimony, must communicate clearly, efficiently, and professionally so they may obtain information necessary to develop their cases while protecting the confidentiality of tax return information. Questions to the debtors should be open-ended to prompt full disclosure on the issues raised.

  7. Publication 1. If a representative of the Service attends a 341 meeting to question a debtor, and the debtor has no current outstanding liabilities (for example, the IRS is there to secure unfiled tax returns), the Service employee should present the debtor with a copy of Publication 1, Your Rights as a Taxpayer, at the time of the hearing if one has not been mailed to the debtor before the 341 meeting. If the debtor has outstanding liabilities, it can be assumed (s)he has already received a copy of Publication 1.

5.9.2.5  (05-20-2008)
Applicable Sections of the Bankruptcy Code

  1. Introduction. Particular sections of the Bankruptcy Code impact the Service's position during the pendency of a bankruptcy. Knowledge of the provisions of the Bankruptcy Code increases the Service's awareness of debtors' rights so those rights are not violated while debtors are under court protection. Should violations occur the Service may be liable for damages.

  2. Sovereign Immunity. 11 USC § 106 waives the sovereign immunity of the IRS and other governmental units. The doctrine of sovereign immunity asserts the United States cannot be sued unless it specifically waives its exemption from suit, such as by passing a statute permitting a damages suit against the United States.

  3. Section 362, Automatic Stay. This provision of the Bankruptcy Code imposes an automatic stay (prohibition) on certain actions of creditors, including the United States, as of the petition date.

    1. Some of the acts prohibited under the stay include acts to collect debts incurred before the filing of the bankruptcy petition and acts to take possession of, or exercise control over, property of the estate and the debtor.

    2. Exceptions to the automatic stay are found in 11 USC § 362(b). The Bankruptcy Reform Act of 1994 (BRA 94) expanded the list of exceptions to include: assessment of tax, issuance of notices of deficiencies, audits to determine tax liability, solicitation of tax returns, and the issuance of a notice and demand for payment of an assessment. BAPCPA added exceptions for the setoff of prepetition income tax refunds against prepetition income tax liabilities and the interception of income tax refunds for setoff against past due domestic support obligations.

    3. Further, BAPCPA restricts the duration of the stay with respect to the debtor and the debtor's property that is not property of the bankruptcy estate in Chapter 7, 11, or 13 cases filed by individuals to 30 days if a debtor has had a pending individual Chapter 7, 11, or 13 bankruptcy within the preceding year which was dismissed for reasons other than failure to meet the means test. (See IRM 5.9.5.7,Serial Filers.) If a debtor has had two or more individual Chapter 7, 11 or 13 bankruptcies pending in the previous one-year period which were dismissed, the stay may not arise at all depending upon the circumstances surrounding the dismissals. Where uncertainty exists regarding the stay, Insolvency should refer the case to Associate Area Counsel to seek a court order confirming the status of the stay.

      Note:

      A party in interest may request a stay be instituted or extended in the above situations.

  4. Section 522, Exemptions. Provided in this section of the code are property exemptions a debtor may select. The federal exemptions apply unless the state in which the debtor is domiciled has enacted specific legislation authorizing or mandating the use of state exempted property limitations.

    1. Under 11 USC § 362, collection may not be pursued against property exempt under § 522 while the automatic stay is in effect.

    2. Upon discharge exempt property is subject to collection of dischargeable taxes and non-dischargeable taxes for which a Notice of Federal Tax Lien (NFTL) was filed prior to the petition date.

      Note:

      Exempted property is not subject to liquidation by the court.

  5. Section 523, Exceptions to Discharge. Exceptions to discharge for individual debtors are listed in 11 USC § 523(a)(1). Not discharged are those tax liabilities given priority status by 11 USC § 507, except administrative expenses. In addition, non-dischargeable taxes include taxes for which a return was not filed, taxes due on a late return filed after two years before the date of the bankruptcy petition, a fraudulent return, and taxes the debtor willfully attempted to evade or defeat.

    Note:

    In a Chapter 13 bankruptcy filed prior to October 17, 2005, an individual may qualify for a super discharge of all prepetition tax debts without regard to § 523 exceptions. BAPCPA establishes exceptions to Chapter 13 discharge for bankruptcies filed on or after October 17, 2005.

  6. Section 524, Effect of Discharge. The collection of discharged tax liabilities as a personal liability of the debtor is prohibited by this code section. The Service can be sued for damages, including attorney fees, for violating the discharge injunction under 11 USC § 524. However, punitive damages cannot be awarded.

  7. Section 541, Property of the Estate. The filing of a bankruptcy petition creates an estate comprised of all property of the debtor as of the commencement of the case. The estate comes under the court's jurisdiction as of the date a bankruptcy petition is filed.

  8. Section 542, Turnover of Property to the Estate. The conditions under which property must be turned over to the estate for the trustee's use, sale, or lease are defined. This "turnover" may include a refund due an individual debtor unless the refund may be offset to IRS liabilities.

  9. Section 547, Preferences. The trustee is authorized to avoid certain transfers of the debtor's property made on or within 90 days before the date of the bankruptcy filing or between 90 days and one year before the petition date if the transfer is to an insider. An "insider" may include a relative of the debtor or an officer or director of a corporate debtor, among others (11 USC § 101(31)). This section on preferences encompasses property seized by the government, as the term transfer also relates to involuntary payments. However, it does not include payments of tax liabilities made in the ordinary course of business.

  10. Section 553, Setoff. A creditor's right to set off a mutual debt owed by the creditor to the debtor that arose before the bankruptcy proceeding began is preserved. This authority allows the IRS to credit a refund that arose before the petition date against a prepetition tax liability of the debtor provided the automatic stay has been lifted for cases filed prior to October 17, 2005. The IRS may freeze a refund to protect its right of setoff without permission of the court. BAPCPA has eliminated the requirement to ask the court for a lift of stay to apply prepetition income tax refunds to prepetition income tax liabilities on cases filed on or after October 17, 2005.

5.9.2.6  (09-10-2010)
Bankruptcy Rules

  1. Bankruptcy Rules. The Bankruptcy Rules and Forms govern procedures in cases under Title 11 of the United States Code. The rules shall be cited as the Federal Rules of Bankruptcy Procedure and the forms as the Official Bankruptcy Forms (e.g., Form B10, Proof of Claim). The Bankruptcy Rules were adopted to secure the just, speedy, and inexpensive determination of every case and proceeding as stated in Bankruptcy Rule 1001. These rules provide a structure to the bankruptcy process by standardizing the formats, timeframes, and methods to follow in the implementation of the Bankruptcy Code.

  2. Pertinent Bankruptcy Rules. Insolvency employees should familiarize themselves with the Bankruptcy Rules that pertain to the issues affecting the Service. Examples of the relevant rules include:

    • Rule 1007. When a debtor files a petition (order for relief), certain schedules or statements must also be filed

    • Rule 2002(a)(7). Creditors must receive notice of the bar date

    • Rule 2002(j). Notice of a Chapter 11 case must be mailed to the IRS where the case is pending, whether or not the IRS is a creditor; notice of Chapter 7, 12, and 13 cases must be given to the IRS when it is listed as a creditor in the debtor's schedules

    • Rule 2004. On motion of any party in interest, the court may order the examination of any entity

    • Rule 7001. Adversary Proceedings are subject to the formal procedural rules of Part VII of the Bankruptcy Rules; the rules in Part VII govern the procedural aspects of litigation involving the matters referred to in this rule

      Example:

      A proceeding to object to or revoke a discharge, and to determine the dischargeability of a debt, is known as an Adversary Proceeding.


    • Rule 7004. A copy of summons and complaint must be mailed to the Attorney General, the United States Attorney for the district where the action is brought, and "the officer or agency" involved.

    • Rule 9014. Contested matters are less formal than adversary proceedings; most proceedings under the Bankruptcy Code fall under the scope of this rule

      Example:

      Contested matters can include objections to proofs of claim, objections to confirmation, relief from the automatic stay, or request for use of cash collateral.

5.9.2.7  (09-10-2010)
Local Rules and Standing Orders

  1. Local Court Practices. Each bankruptcy court may make and amend its own local rules governing its practices and procedures. Insolvency caseworkers must know how to access any local rules or standing orders that provide specific guidelines for each bankruptcy court having jurisdiction over their inventories. Employees must understand local court practices impacting the judicial actions in their assigned areas. Actions forbidden in one judicial district may be allowed in another. Similarly, actions requiring a court hearing and ruling in one jurisdiction may be resolved administratively in another district.

    Note:

    The CIO can research local rules regarding the disposition of credits by court on the Bankruptcy Law Advisory Rules Engine (BLARE) on SERP under the tab marked "Local/Sites/Other." In addition, Insolvency employees can research the local rules of any bankruptcy court at http://www.uscourts.gov/rules/bk-localrules.html

    .

  2. Counsel Assistance. Insolvency must confer with Counsel when interpretations are required covering local court practices. Judges in different districts may render divergent court decisions, and even trustees in the same district can each handle matters differently.

5.9.2.8  (03-01-2006)
Trustee

  1. Bankruptcy Trustees. Bankruptcy trustees have the fiduciary responsibility to administer the bankruptcy estate. The trustee ensures creditors are paid according to the provisions of the Bankruptcy Code as reflected in the debtor's plan. Trustees are appointed to serve in specific Chapter 7 cases as panel or case trustees. For Chapters 12 and 13, standing trustees are appointed to serve in all cases in the district. While a trustee may be appointed in a Chapter 11 case, the debtor in possession usually administers the bankruptcy estate (11 USC § 1104).

  2. The United States Trustee. The role of the United States Trustee (employed by the Justice Department) is as a supervisory entity charged with monitoring:

    • the performance of all Chapter 7 trustees

    • the performance of each Chapter 12 and 13 standing trustee

    • certain matters in Chapter 11 cases

    Note:

    Exhibit 5.9.1-1, Glossary - Bankruptcy Terms , and other specific sections of this IRM pertain to the role of trustees in the different chapters of bankruptcy.

5.9.2.9  (09-10-2010)
The Effect of Bankruptcy on Collection

  1. Bankruptcy and the Collection of Taxes. The filing of a bankruptcy petition immediately affects the collection of taxes. The actions the IRS may take depend on various factors, including, but not limited to the:

    1. debtor's being an individual, corporation, or partnership;

    2. chapter of bankruptcy filed;

    3. date the bankruptcy commenced;

    4. presence of complex or unusual issues, such as trust fund, adequate protection, or pyramiding of taxes;

    5. the tax liability's being for prepetition or postpetition periods;

    6. the progress of the case as it moves through the bankruptcy processing stream; and

    7. debtor's prior history of filing bankruptcy, for cases filed on or after October 17, 2005.

  2. Impact on Collection. The following table demonstrates the impact bankruptcy has on collection actions. Because of the variation of permissible actions among the courts, guidance on all possible actions cannot be provided in this IRM.

    Note:

    Service employees should contact Insolvency, which, in turn, may consult with Counsel when assistance is required on complex bankruptcy-related issues.

    Event CH Pre-BAPCPA Post-BAPCPA 11 USC Section
    Bankruptcy petition filed with no previous bankruptcies dismissed within the past one year period All Cases The automatic stay is imposed upon the filing of the petition. All actions against the property of the estate must be suspended, and all actions to collect prepetition liabilities must be suspended as of the date the bankruptcy petition is filed.
    The Collection Statute Expiration Date (CSED) is suspended for the time period during which the automatic stay prohibits the Service from collecting, plus six months.
    No change, except offsets of prepetition income tax refunds against prepetition income tax liabilities are not stayed. § 362, Automatic Stay; §541, Property of the Estate; § 1306, Property of the Estate (CH 13s only); § 1115, Property of the Estate
    Note: Property of the estate has been expanded by BAPCPA for individual CH 11s.
    Petition filed by an individual in a CH 7, 11, or 13 bankruptcy less than 12 months after having been dismissed from one individual CH 7, 11, or 13 bankruptcy CH. 7, 11, 13 Individual Not applicable The stay will terminate with respect to the debtor and the debtor's property that is not property of the bankruptcy estate on the 30th day after the filing of the later case unless a party in interest demonstrates the filing in the latest case is in good faith or if the previous case was a CH 7 dismissed under 11 USC § 707(b) (which includes the means test and other factors) and the later case is not a CH 7 case. The stay only terminates as to actions by any creditor to collect a debt against the debtor personally or against the debtor's property securing such debt, unless that property is property of the estate. The stay does not terminate as to property of the estate. The termination applies to any creditor whether or not such creditor had taken any prepetition collection action. § 362(c)(3), Automatic Stay
    Petition filed by an individual in a CH 7, 11, or 13 bankruptcy less than 12 months after having been dismissed from more than one individual CH 7, 11, or 13 bankruptcy CH. 7, 11, 13 Individual Not applicable The stay will not go into effect at all unless a party in interest demonstrates, by clear and convincing evidence, the filing in the latest case is in good faith or if the previous case was a CH 7 dismissed because of the means test. § 362(c)(4), Automatic Stay
    Case dismissed All Cases Collection may be pursued for any tax and against any property after the order of dismissal is final. A debtor generally is allowed ten days to file an appeal of a dismissal order.
    The CSED is suspended for the time period during which the automatic stay prohibits the Service from collecting, plus six months.
    The CSED may also be suspended after confirmation of a Chapter 11 plan until dismissal.
    Caution: Counsel should be consulted on CH 11 cases with confirmed plans.
    No change § 362(c), Automatic Stay; § 707, Dismissal (CH 7); § 1112, Conversion or Dismissal (CH 11); § 1208, Conversion or Dismissal (CH 12); § 1307, Conversion or Dismissal (CH 13)
    Case awaiting confirmation for bankruptcy petition filed more than one year since any preceding dismissal CH 11, 12, and 13 Automatic stay remains in effect. In CH 11 or 12 cases, substantial liability may accrue between the petition date and the filing of the plan and its confirmation. In CH 13 cases the delay is usually limited. Insolvency should monitor these bankruptcy cases to take steps to reduce pyramiding of delinquent postpetition tax liabilities.
    No change § 503, Allowance of Admin. Expenses (CH 11); § 1305 postpetition claim (CH 13); § 1112(b)(4)(I)
    Individual case awaiting confirmation with one dismissal of a previous individual CH 7, 11, or 13 bankruptcy within the last 12 months before the petition date. CH 11 Individual, CH 13 Automatic stay remains in effect until case closure. Automatic stay remains in effect for 30 days after the petition date unless extended by the court due to evidence it was filed in good faith or if the previous case was a CH 7 dismissed because of the means test. § 362(c)(3) and (4), Automatic Stay
    Individual case awaiting confirmation with more than one dismissal of a previous individual CH 7, 11, or 13 bankruptcy within the last 12 months before the petition date. CH 11 Individual, CH 13 Automatic stay remains in effect until case closure. Automatic stay will not go into effect at all unless a party in interest demonstrates, by clear and convincing evidence, the filing in the latest case is in good faith, or if the previous case was a CH 7 dismissed because of the means test. § 362(c)(3) and (4), Automatic Stay
    At confirmation CH 11 Business The automatic stay is lifted unless the plan provides otherwise. Prepetition taxes are paid through the plan. Postpetition taxes, that are administrative expense taxes, should be paid in full by the plan effective date. However, if the plan provides otherwise and the Service did not appeal, the Service may be bound by the plan. Post-confirmation taxes are fully collectible through the normal collection process. Field Collection may need to contact Insolvency to ensure the taxes in question are post-confirmation taxes. No change. § 1141, Effect of Confirmation
    At confirmation for bankruptcy petition filed more than one year since any preceding dismissal CH 11 Individual The automatic stay is lifted unless the plan provides otherwise.Prepetition taxes are paid through the plan. Postpetition taxes, that are administrative expense taxes, should be paid in full by the plan effective date. However, in some jurisdictions, these taxes may be paid in deferred installments under the terms of the plan. Post-confirmation taxes are fully collectible through the normal collection process. Unless otherwise ordered, the discharge is not granted until completion of all plan payments, thus the automatic stay is in effect the duration of the bankruptcy. Prepetition taxes are paid through the plan. Postpetition taxes are grounds for dismissal or conversion. Defaulted plans: Since the automatic stay is in effect the Service may need to seek dismissal for collection of taxes. § 1141, Effect of Confirmation, § 1112(b)(4)(I)
    At confirmation for bankruptcy petition filed more than one year since any preceding dismissal CH 13, CH 12 The automatic stay remains in effect after confirmation and during the entire pendency of the plan. Collection of all prepetition taxes, and also postpetition taxes for which claims are filed under 11 USC § 1305 and provided for in the plan , is limited to payments under the plan. Limited administrative collection of postpetition taxes may be possible depending on local law and practice. Counsel should be consulted to formulate the most effective legal means of dealing with postpetition non-compliance in a particular bankruptcy court jurisdiction. No change to prepetition taxes. Note: Unfiled postpetition tax returns are now grounds for dismissal. The taxing authority may request the court enter an order converting or dismissing the case. If the debtor fails to file a postpetition tax return, or fails to properly obtain an extension of the due date, within 90 days of the request, the court shall convert or dismiss the case. § 1227, Effect of Confirmation (CH 12); § 1327, Effect of Confirmation (CH 13); § 521(j)
    At discharge CH 7 In an asset case, the trustee liquidates certain assets to pay prepetition claims. The stay is lifted at discharge against all property – including exempt, excluded, or abandoned property, except for property that remains property of the estate (i.e., the property is being administered by the trustee). Caution: Care must be taken when releasing either non-discharged prepetition taxes or postpetition taxes to systemic collection procedures when the risk of attaching property that is being liquidated by the trustee exists. Local procedures may call for control of these cases through the use of Other Investigations (OIs). No change. § 727, Discharge; § 522, Exemptions; § 523, Exceptions to Discharge
        The principal difference between no asset and asset cases, for collection purposes is, usually no property will be distributed through the no asset bankruptcy, and the IRS will generally not participate in the case.    
        At discharge, property exempted by the debtor or abandoned by the trustee is available to collect prepetition discharged taxes for which a NFTL was filed before the filing of the petition. (This can be done in either 7 Asset or No Asset cases.) Also, the Service can pursue collection of non-dischargeable liabilities from any exempt, excluded, abandoned, non-administered, or after-acquired property of an individual debtor.    
        In both asset and no asset cases, unless the taxes are excepted from discharge under 11 USC § 523, all prepetition debts are discharged.    
    At Discharge CH 11 Individual Discharge is generally granted after the plan has been confirmed and becomes effective. Reminder: Confirmation does not discharge an individual debtor from certain taxes under 11 USC § 523. Generally the discharge is granted when all plan payments are complete.
    Note: A hardship discharge may be granted to an Individual who has not completed the plan if certain conditions are met.
    § 1141(d), Effect of Confirmation; § 523(a), Exceptions to Discharge; § 727(a), Discharge
    At discharge CH 11 Business Discharge is generally granted after the plan has been confirmed and becomes effective. Exception: If the plan provides for liquidation of all or most of the property of the estate, confirmation will not result in a discharge. No change. § 1141(d), Effect of Confirmation; § 523(a), Exceptions to Discharge; § 727(a), Discharge.
    At Discharge CH 12 Discharge granted at completion of payments, or if the debtor cannot complete the plan, a hardship discharge is granted, which is similar to a CH 7 discharge. Certain debts are excepted under 11 USC § 523. No change. § 522, Exemptions; § 523, Exceptions to Discharge; § 1228 (a) and §1228 (b)
    At Discharge CH 13 With a super discharge all prepetition taxes and any postpetition taxes provided for in the plan are discharged. Postpetition taxes not provided for in the plan can be released to normal collection.
    With a hardship: discharge all prepetition debts, except for debts excepted from discharge under 11 USC § 523, are discharged just as if the case were a CH 7.
    Certain tax debts are excepted from discharge. (See IRM 5.9.17.7,Discharge and Exceptions to Discharge.) § 1328(a), Discharge; § 522, Exemption; § 523, Exceptions to Discharge; § 1338(b), Discharge
    Closing All Cases Upon the closing of Chapter 7 or 13 cases, and Chapter 11 cases of individuals, collection may be pursued from all non-discharged liabilities.
    Discharged liabilities may be collected from prepetition exempt or abandoned property if the Service filed a NFTL before the bankruptcy case was filed.
    Discharged liabilities may also be collected from excluded property, for which the IRS has a statutory lien, but only to the extent of the property interest that existed prepetition, even if a NFTL was not filed before the bankruptcy. Exception: In Chapter 11 cases of corporations that have closed, the Service will generally be bound by the terms of a confirmed Chapter 11 plan with regard to all preconfirmation liabilities unless the debtor has defaulted on the plan. If the debtor has defaulted on the plan, liabilities are considered to not be discharged to the extend the plan provided for their payment; the nondischargeable portion of the liabilities can be collected.
    Pursuit of excluded, exempt, or abandoned property may increase for taxes excepted from discharge in Chapter 13 cases. § 523

5.9.2.9.1  (03-01-2007)
Bankruptcy Discharges and Collection

  1. Introduction. The objective of a debtor's filing bankruptcy is to gain relief by being granted a discharge from debt. The discharge bars creditors from collecting discharged debts. IRM 5.9.17 deals in depth with discharge issues for the various bankruptcy chapters. Listed below are summaries of the overall impact of bankruptcy discharges on the Service's collection process.

  2. Discharge - Individual Debtors. The effects of discharge on individual debtors are listed below in chapter order.

    1. Chapter 7. The court grants a discharge, subject to the exceptions in 11 USC § 523 for individual debtors (11 USC § 727(a)). A court may deny a discharge if one of the criteria in 11 USC § 727 is met.

    2. Chapter 11 Filed Prior to October 17, 2005. The confirmation of a plan discharges all pre-confirmation debts except for those listed in 11 USC § 523 for individual debtors, regardless of whether a proof of claim has been filed (11 USC § 1141(d)(1).

      Note:

      A Chapter 11 confirmation does not act as a discharge (1) if the plan provides for the liquidation of all or substantially all of the property of the estate; (2) if the debtor does not engage in business after the plan is confirmed; or (3) if one of the criteria of 11 USC § 727 is met (11 USC § 1141(d)(3)).

    3. Chapter 11 Filed by Individuals on or after October 17, 2005. BAPCPA changed the rules of discharge for individuals filing Chapter 11 bankruptcies. Discharge takes place after all plan payments are completed. Also, to the extent that a Chapter 11 individual debtor is unable to complete the plan payments, the debtor may still be able to obtain a discharge under special circumstances.

    4. Chapter 12. Once the debtor has completed payments under the plan, the court will issue a discharge of all debts provided for in the plan, except for those listed in 11 USC § 523 (11 USC § 1228(a)). In certain circumstances, a judge can issue a hardship discharge before the plan is completed (11 USC § 1228(b)).

    5. Chapter 13 Filed Prior to October 17, 2005. When a debtor has completed plan payments, the court grants a super discharge (11 USC § 1328(a)). All tax debts provided for in the plan and disallowed claims are discharged. After a plan is confirmed, but before it is completed, the court may grant a hardship discharge, subject to the exceptions in 11 USC § 523.

      Note:

      In a hardship discharge, the Chapter 13 debtor must show: (1) the failure to complete the plan is due to circumstances beyond the debtor's control; (2) the value of the property actually distributed is at least what would have been distributed in a Chapter 7 proceeding; and (3) modification of the plan is not practical.

    6. Chapter 13 Filed on or after October 17, 2005. BAPCPA changed the Chapter 13 discharge provisions to except from discharge trust fund taxes, taxes related to unfiled returns and certain late returns, taxes related to fraudulent returns, and willful attempts to evade or defeat taxes. These taxes must be paid in the plan, or they will survive the bankruptcy.

  3. Discharge - Corporate Debtors. The effects of discharge on corporate debtors are listed below in chapter order.

    1. Chapter 7. A discharge is not available for corporate debtors (11 USC § 727(a)(1)).

    2. Chapter 11. For cases filed prior to October 17, 2005, a corporate discharge is a super discharge (11 USC § 1141(d)(1)). For cases filed on or after October 17, 2005, a corporate debtor does not receive a discharge of any taxes for which it filed a fraudulent return or willfully attempted in any manner to evade or defeat the payment of tax. (11 USC § 1141(d)(6)).

    3. Liquidating Chapter 11. A corporation is not entitled to a discharge in a liquidating Chapter 11 proceeding (11 USC § 1141(d)(3)).

    4. Chapter 12 (Family Farmer/Fisherman). Refer to IRM 5.9.9.2, Chapter 12 Eligibility. Note in particular paragraph (3), 50 and 80 Percent Rules - Partnerships/Corporations for Chapter 12 bankruptcies.

  4. Exceptions from Discharge - Individuals. Under 11 USC § 523(a), the following taxes are not discharged in an individual Chapter 7, 11, or 12 bankruptcy:

    1. Priority tax claims (except priority administrative claims). (See IRM 5.9.13.19.3,Unsecured Priority. )

    2. Taxes for which a return was not filed. 11 USC § 523(a)(1)(B) denies a debtor a discharge of taxes when a return was not filed. See IRM 5.9.2.9.1.2 for an explanation on what does and does not constitute a valid tax return.

    3. Taxes for which a late return was filed within two years of the bankruptcy filing.

    4. Taxes for which the debtor filed a fraudulent return or willfully attempted to evade or defeat the tax.

      Note:

      What constitutes a willful attempt to evade or defeat taxes under 11 USC § 523(a)(1)(C) is not always clear.

      Reminder:

      BAPCPA made certain exceptions to discharge applicable in Chapter 13 and corporate Chapter 11 cases filed on or after October 17, 2005.

  5. Willful Evasion. To judge actions as constituting willful evasion, the Service must consider the following strictures:

    1. A preponderance of the evidence is the standard to prove willful evasion.

    2. Failure to file and pay taxes is usually not enough to demonstrate willful evasion. But a debtor's voluntary, conscious, and intentional failure to file returns for an extended period of time, and a failure to pay taxes when the debtor had the ability to do so, may qualify as willful evasion under 11 USC. § 523(a)(1)(C).

    3. Some courts require the Service to prove some affirmative misconduct, such as concealed or fraudulently transferred assets.

      Caution:

      Insolvency must obtain written approval from Counsel before returning cases to the collection stream because taxes were not discharged on the grounds of willful evasion.

5.9.2.9.1.1  (09-10-2010)
Exempt or Excluded Property

  1. Exemptions and Exclusions. Pursuant to 11 USC § 522(b), an individual debtor may choose to exempt certain property from the bankruptcy estate. Except as provided by state law, the debtor can select either the state exemptions or the federal exemptions listed in 11 USC § 522(d). Some of the debtor's property is excluded from the bankruptcy estate under 11 USC § 541. Certain retirement savings accounts or pension plans are excluded from the bankruptcy estate under 11 USC § 541(c)(2) if they contain enforceable anti-alienation provisions. IRM 5.9.17 provides extensive information on exempt, abandoned, and excluded property.

    Note:

    If the debtor has listed excluded property as exempt on bankruptcy Schedule C - Property Claimed as Exempt, this may impair the Service's ability to collect dischargeable taxes from the excluded property where no valid NFTL was filed (see IRM 5.9.17.4.1). If no valid NFTL was filed before the petition date, and post discharge collection is likely to be pursued against the excluded property (see IRM 5.9.17.4.3), the Specialist or Advisor should ask the debtor to amend Schedule C to remove the excluded property. If the debtor refuses to amend the schedule, a referral to Area Counsel should be made to request an objection to the debtor's bankruptcy schedules.

  2. Valid NFTL Survives Discharge. If the Service has properly filed a prepetition NFTL, and the lien is still valid (e.g., refiled correctly, if applicable), the lien survives the bankruptcy discharge (11 USC § 522(c)(2)(B)). Thus, the Service may collect discharged taxes from property that is either exempt from the estate or abandoned by the trustee if a valid NFTL was filed prepetition.

    Caution:

    The Service must follow established collection procedures while ensuring the provisions of the Bankruptcy Code are not violated.

5.9.2.9.1.2  (03-01-2007)
A Valid Tax Return

  1. For Discharge Purposes. 11 USC § 523(a) was amended by BAPCPA to provide that a tax return prepared by the IRS under IRC § 6020(a) or a "written stipulation to a judgment or a final order entered by a non-bankruptcy tribunal" is a "return" for the purpose of discharge, but a return prepared under IRC § 6020(b) is not a return for the purpose of discharge.

  2. Revenue Ruling 74-203. Before September 13, 2005, the Service treated a signed Form 870 or Form 4549, consenting to a substitute for return (SFR) assessment and subsequent collection, as a return prepared under IRC § 6020(a). (See Rev. Rul. 74-203.) Thus, situations in which these documents were signed are not subject to the SFR discharge exception under 11 USC 523(a)(1)(B)(i), although the other exceptions could apply.

  3. Revenue Ruling 2005-59. Neither Form 870 nor Form 4549 signed on or after September 13, 2005, constitutes a return for purposes of IRC § 6020(a) unless accompanied by some other document that is signed under penalties of perjury and purporting to be a return. (See Rev. Rul. 2005-59.) If the documents do not comply with Rev. Rul. 2005-59, then the discharge exception under 11 USC 523(a)(1)(B)(i) applies. Because it is not signed under penalties of perjury, an agreed substitute for return, where only a Form 4549 is signed by the taxpayer, is also not a valid return. An SFR with a TC 599 89 is an agreed assessment, but it is not a return pursuant to 6020(a) because it is not signed under penalties of perjury and does not purport to be a return.

    Note:

    The Service will not contest the dischargeability of a tax debt in bankruptcy on the basis that no return was filed if the taxpayer submitted a signed Form 870 before the revocation of Revenue Rule 74-203 on September 12, 2005. This position applies equally to Form 1902, Report of Individual Income Tax Audit Changes (obsoleted 1988) and Form 4549,Income Tax Examination Changes.

  4. Identifying Unagreed Substitutes for Return. True SFRs can be difficult to identify. A tax module with an annotation "Substitute for Return" is not necessarily non-dischargeable, nor is it necessarily a true SFR. A true unagreed SFR that is non-dischargeable has a TC 150 of $0.00, a TC 290 or a TC 300 with a debit dollar amount, a DLN blocking code of 54X or 64X, and a TC 599 cc88 or no TC 599 present.

  5. Reserved.


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