Posts Tagged ‘Chapter 13’

Debt Limits for Chapter 13 Bankruptcy Recently Increased

Tuesday, August 3rd, 2010

Debt Limits for Chapter 13 Bankruptcy Recently Increased

More and more we are seeing clients who make too much money to qualify for a Chapter 7 bankruptcy as a result of the “means test“.  (You can read more about the means test in our other blog postings).  For some of these individuals Chapter 13 appears to be their only option.  However, when we take a closer look at how much debt they have, some of them don’t qualify for a Chapter 13 case either.  Strange as it may seem, Congress has actually put a cap on the amount of debt you can have and still be eligible for a Chapter 13 bankruptcy.

Many of those same clients who didn’t qualify for a Chapter 7 bankruptcy had too much debt, either secured or unsecured to qualify for Chapter 13, leaving a more expensive, complicated Chapter 11 case as their best option.  However, some relief was recently offered when on April 1, 2010, the debt limits were increased.  Now, debtors can have up to $360,475 of unsecured debt and $1,081,400 of secured debt and still file Chapter 13.

You should still talk to an experienced bankruptcy attorney about your debts and whether they are counted toward these limits.  Not all obligations are included in the calculation and you may find that you thought you didn’t qualify for a Chapter 13 case, when in fact you do.  These issues are best addressed in a personal consultation with an attorney.  If you have questions about bankruptcy, please call us today or visit our website at www.bankruptcylawyeraz.com.

Who pays capital gain taxes relating to the sale of appreciated property sold to pay creditors in a Chapter 13 bankruptcy?

Wednesday, July 21st, 2010

Who pays capital gain taxes relating to the sale of appreciated property sold to pay creditors in a Chapter 13 bankruptcy?

Often debtors facing financial crisis have the ability to pay all or a large portion of their debts.  Yet, the cash available to pay these debts is tied up in illiquid investments (i.e. raw land, rental properties, etc.).  These debtors often utilized a Chapter 13 bankruptcy as a means of obtaining immediate relief from aggressive creditors while attempting to liquidate assets to satisfy their debts. These debtors need to beware of the potential capital gain tax consequences associated with selling appreciated assets.

At of the time a bankruptcy petition is filed, all of the debtor’s assets become property of a “bankruptcy estate”.  See 11 U.S.C. § 541.  In a Chapter 13 case, the bankruptcy estate includes all of the debtor’s earnings from the date the bankruptcy is filed through the date the case is closed.  11 U.S.C. § 1306(a)(2).  To confirm a Chapter 13 plan of reorganization, the debtor must pay all “projected disposable income” into the Chapter 13 plan.  So, when an appreciated asset is sold to pay creditor and all of the debtor’s income is being paid to creditors; who pays the capital gain taxes?  From most people, the knee-jerk reactionary response would be: it only makes sense that the Chapter 13 Trustee should pay the taxes from the money paid through the Chapter 13 plan.  Unfortunately, in some cases, this may not be the correct answer.

In an unpublished but very detailed memorandum decision entered by Judge Joel B. Rosenthal, Bankruptcy Court Judge for the District of Massachusetts, In re Brown, 2006 WL 3370867 (2006), it was held that the tax liability can be satisfied from the amount paid into the Chapter 13 plan only if the taxing authority filed a post-petition proof of claim pursuant to 11 U.S.C. § 1305(a)(1).  Such a proof of claim enables the debtor to treat the claim as if it had been incurred prior to the date the bankruptcy was filed as opposed to being treated like every other post-petition debt.  The Brown court clarified that

The choice belongs to the creditor, however, as the effect of filing the proof of claim is to treat the postpetition claim as arising prepetition. If the creditor does not file a postpetition claim, a debtor may not file one for him. [citation omitted].  Instead the creditor may chose to await discharge and then pursue its claim against the debtor directly. [citation omitted]. The postpetition tax creditor does not have a choice between filing a proof of claim under § 1305 or receiving an administrative claim under § 503(b)(10(B). The result is no different if it is a debtor attempting to force the taxing authority into accepting treatment under the plan, even if the treatment is payment in full.

Brown, 2006 WL 3370867 at Pg. 2.

While the Brown decision is an unpublished memorandum decision, Bankruptcy Courts from the District of Arizona have seen the well-reasoned decision as authoritative.  See In re Hall, 376 B.R. 741, 745-47 (Bkrtcy.D.Ariz.,2007).  Accordingly, debtors seeking to liquidate appreciated assets to satisfy debt in a Chapter 13 bankruptcy need to be aware that if the IRS does not cooperate and file an appropriate post-petition proof of claim, the debtor may be responsible for the capital gain tax liability associated with the sale but lack the ability to pay the taxes from the sale proceeds or any income earned during the pendency of their Chapter 13 bankruptcy.

For more information, or to register for one of our free bankruptcy seminars, please visit www.mcguiregardner.com or www.freearizonabankruptcyseminar.com.

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