A common question people ask is whether they can wipe out income tax debt by filing bankruptcy. The answer, naturally, is that it depends. To better understand what may be dischargeable in bankruptcy, it is essential to examine what is not dischargeable in bankruptcy.
This chapter of the Bankruptcy Code provides for "liquidation" - the sale of a debtor's nonexempt property and the distribution of the proceeds to creditors.
This chapter of the Bankruptcy Code provides for adjustment of debts of an individual with regular income. Chapter 13 allows a debtor to keep property and pay debts over time, usually three to five years.
This chapter of the Bankruptcy Code generally provides for reorganization, usually involving a corporation or partnership. A chapter 11 debtor usually proposes a plan of reorganization to keep its business alive and pay creditors over time. People in business or individuals can also seek relief in chapter 11.
The chapter of the Bankruptcy Code providing for adjustment of debts of a "family farmer," or a "family fisherman" as those terms are defined in the Bankruptcy Code.
A Debtor is a person or legal entity (such as a corporation or an LLC) that has filed a Petition for bankruptcy relief or is the subject of an involuntary bankruptcy Petition.
The Estate is a legal entity that is created when an individual or business files for bankruptcy under any chapter. It includes all of the Debtor’s legal and equitable interest in property at the time of filing, and in the case of Reorganization, it usually includes post-filing Assets. The concept of a bankruptcy estate is crucial as it determines what resources are available to pay Creditors.
A Discharge is a court order that releases a Debtor from the obligation to pay certain debts. This allows the Debtor to get a fresh financial start, free from the legal responsibility for those discharged debts. Once a Discharge order has been given, Creditors are prohibited from taking any action to collect on discharged debts.
A Trustee is a person appointed by the court to oversee the bankruptcy process. The Trustee’s role varies depending on the type of bankruptcy and they may be responsible for either reviewing and liquidating Assets or overseeing the Reorganization process.
A Creditor is an entity that is owed money by a Debtor arising before the filing of the bankruptcy Petition.
Assets are any property or possessions a Debtor owns or has the right to own, such as homes, bank accounts, land, cash, jewelry, artwork, investments, etc. Assets can also be intangible, such as the right to receive a tax refund, or a claim for damages against someone, whether or not a lawsuit has been filed.
A Lien is a legal right or interest that a Creditor has in a Debtor’s property, typically used as Collateral to secure a debt. If the Debtor fails to fulfill the obligation, the Creditor can take steps to sell or seize the property to satisfy the outstanding debt. Liens can be voluntary (agreed upon by the Debtor) or involuntary (placed by a court or government).
A Secured Creditor is a lender or Creditor who holds a legal Claim on specific Collateral pledged by the Debtor or an Involuntary Lien on certain property. In the event of bankruptcy, Secured Claims have priority over unsecured creditors when it comes to the Distribution of the Debtor’s Assets.
Collateral is property or Assets that a Debtor pledges to a Creditor as security for a loan or obligation.
A Secured Claim refers to a debt that is backed by Collateral, such as a mortgage on a home or a car loan or one where the Creditor has obtained a Lien. If the Debtor fails to repay the debt, the Creditor has the legal right to seize the property to satisfy the debt. Secured Claims are given priority over unsecured claims in bankruptcy, meaning they are paid before many other types of Claims.
A Complaint in bankruptcy is a formal written document filed with the bankruptcy court asking the court to rule on a specific issue related to the bankruptcy proceeding. Filing a Complaint initiates an Adversary Proceeding.
The Debtor in Possession is a Chapter 11 Debtor undergoing Reorganization who continues to run the business themselves, instead of having a Trustee appointed. When a Debtor becomes a Debtor in Possession, they have legal duties to operate the business for the benefit of the Estate and Creditors rather than shareholders.
Transfer refers to the act of moving Assets or property from the Debtor to another party. Transfers can include selling, gifting, or otherwise conveying ownership of property. Certain Transfers made before the bankruptcy filing may be scrutinized by the court and potentially reversed to ensure a fair Distribution of Assets among Creditors.
A Proof of Claim is a formal document filed by a Creditor in a bankruptcy case to assert the amount and nature of the debt owed by Debtor. It serves as evidence of the Creditor’s Claim against the Debtor’s Estate. The Proof of Claim typically includes details such as the amount of the debt, the type of Claim, and any supporting documentation. Proofs of Claims are used to verify and prioritize Claims.
A Distribution is the payment made to Creditors from the Debtor’s Estate. It is typically a percentage of the Creditor’s Claim, based on the available Assets after Liquidation or as part of a Reorganization plan. The amount a Creditor receives as a Distribution depends on their priority status and the amount of Assets available.
Liquidation is the process of selling off a Debtor’s Assets to pay Creditors in a bankruptcy case. In Liquidation, the Trustee sells the Debtor’s non-exempt property and distributes the proceeds to Creditors in accordance with the priority of their Claims.
Non-Exempt Assets are property or possessions that are not protected by Exemption laws and can be seized or sold by the Trustee to repay Creditors. These typically include non-essential items such as second homes, extra vehicles, investments, and valuables like jewelry or art.
Reorganization is the process under Chapter 11 by which a financially distressed Debtor restructures their debts and business operations to regain solvency.
A Petition is a formal legal document filed with the court by a Debtor (or Creditors, in the case of an Involuntary Petition) to initiate a bankruptcy case. It includes a summary of the Debtor’s financial situation, such as Assets, liabilities, income, and expenses. The Petition serves as the official request for the court to begin the bankruptcy process and provide relief from Creditors.
The Automatic Stay is an injunction that takes effect the moment a Debtor files for bankruptcy and stops Creditors from taking any steps to collect their debts. Its reach is broad and includes pausing all lawsuits, foreclosures, repossessions, wage garnishments, or any other effort to collect from the Debtor.
Adversary Proceedings are a legal mechanism for dispute resolution within a larger bankruptcy proceeding. The process is similar to that of federal civil lawsuits outside the bankruptcy context and is initiated by filing a Complaint in the bankruptcy court. The purpose of Adversary Proceedings is to ensure that complex legal issues related to the bankruptcy case are resolved fairly and thoroughly.
Non-Consumer Debts are debts that arise from business-related activities or investments, such as loans for operating a business, commercial credit, or debts related to business operations. Non-Consumer Debts are treated differently than Consumer Debts, particularly in terms of eligibility for Chapter 7 and repayment plans.
The Means Test is used to determine an individual borrower's eligibility to seek relief under Chapter 7. Because Chapter 7 relief allows borrowers to wipe out virtually all of their unsecured debts, only borrowers who legitimately lack the means to repay their debts are eligible to file under Chapter 7.
A Discharge is a court order that releases a Debtor from the obligation to pay certain debts. This allows the Debtor to get a fresh financial start, free from the legal responsibility for those discharged debts. Once a Discharge order has been given, Creditors are prohibited from taking any action to collect on discharged debts.
A Claim is a Creditor’s legal right to seek repayment from the Debtor’s Estate. It represents the amount of money a Creditor believes they are owed by the Debtor.
An Unexpired Lease is a type of Executory Contract which is a lease agreement that is still in effect and has not yet expired at the time of the bankruptcy filing.
A Proof of Claim is a formal document filed by a Creditor in a bankruptcy case to assert the amount and nature of the debt owed by Debtor. It serves as evidence of the Creditor’s Claim against the Debtor’s Estate. The Proof of Claim typically includes details such as the amount of the debt, the type of Claim, and any supporting documentation. Proofs of Claims are used to verify and prioritize Claims.
The Homestead Exemption is a legal provision in most exemption statutes that protects the equity in a Debtor’s primary residence from being seized and sold to pay off Creditors in bankruptcy. The amount of protection varies by state.
The Claims Register is an official record maintained by the bankruptcy court or Trustee that lists all the Claims filed by Creditors against the Debtor’s Estate.
Exemptions in bankruptcy refer to the Debtor’s ability to protect certain property or possessions, or a portion thereof, that are protected from seizure or Liquidation by the bankruptcy Trustee, allowing individuals to retain essential items needed to support themselves after filing and/or a portion of equity in certain Assets. These Exemptions vary by state but commonly include protections for a primary residence (Homestead Exemption), personal property like clothing and household goods, motor vehicles, retirement accounts, tools of the trade, public benefits, and certain types of personal injury awards.
A Security Interest is a legal Claim placed on property that the property owner willingly accepts and agrees to in order to secure a debt or obtain financing. It is created through a voluntary agreement or contract between the property owner and a Creditor, most commonly a written or oral contract.
An Involuntary Petition for bankruptcy is a legal action initiated by Creditors to force a Debtor into bankruptcy. This occurs when the Debtor has failed to pay their debts and a group of Creditors with qualifying Claims petition the court to have the Debtor’s Assets liquidated or restructured. If the Petition is successful, the Debtor is subject to the bankruptcy process despite not voluntarily filing for it.
Pre-Petition Debt refers to any debt that was incurred by the Debtor before filing for bankruptcy. These debts are included in the bankruptcy case and may be Discharged or reorganized depending on the type of bankruptcy filed.
The term Dischargeable refers to those debts that are capable of being Discharged through bankruptcy. This is in contrast to nondishargeable debts which a Debtor will remain personally liable for after the conclusion of the bankruptcy proceeding.
An Executory Contract is a contract in which both parties have ongoing obligations that are yet to be fully performed. Common examples are Unexpired Leases, service agreements, and supply contracts. In certain contexts, Debtors can use parts of the bankruptcy code to either Assume or Proof of Claim these kinds of contracts.
A General Unsecured Claim is a debt that is not backed by collateral and is not given priority over any other Claims. These Claims are paid from any remaining Assets after priority debts have been satisfied, and they commonly receive only a portion of what they are owed. Common examples of General Unsecured Claims are credit card debt, medical bills, trade debt, utility bills, and personal loans.
Assume means a Debtor’s decision to continue to honor or perform a contract or lease that was entered into before the filing of bankruptcy.
Consumer Debt is debt incurred by an individual primarily for daily living, personal or family needs. This includes things like credit card debts for household purchases, car loans for personal vehicles, and mortgages for primary residences. This type of debt contrasts with debts incurred for business or investment purposes (Non-Consumer Debts).
Secured Debts are loans or credit arrangements that are backed by Collateral or asset. It may arise from either a contractual security agreement, or an Involuntary Lien. The mechanism enforcing the lender’s rights to that Collateral is called a Security Interest. If the borrower fails to make payments as agreed, the Lien gives a lender the right to take possession of the Collateral as a means to recover the debt. Common examples of Secured Debts include mortgage loans (where the home serves as Collateral and is subject to foreclosure upon default) and auto loans (where the vehicle serves as Collateral and is subject to repossession upon default).
The Petition Date is the date on which the Petition is filed, and the bankruptcy case commences.
A Statement of Financial Affairs is a document filed in bankruptcy proceedings that provides a detailed overview of a Debtor's financial history and transactions. It includes information about income, Assets, liabilities, recent financial activity, and any Transfers or payments made prior to filing for bankruptcy, helping the court and Creditors understand the Debtor’s financial situation.
An Involuntary Lien is a legal claim placed on property without the property owner's consent—typically as a result of a legal action or judgment. Involuntary Liens are imposed by law to satisfy debts or obligations owed by the property owner, often in cases of non-payment or legal disputes.