• Eliminating Taxes in Bankruptcy (article by Howard Levy, former trial attorney for the IRS)
• If you owe back federal taxes – obtain a literal transcript CLICK HERE FOR NEW IRS FORM 4506T-EZ from the IRS for the last 4 years.
• Determine Tax Discharge Dates Quickly and Accurately at TaxDischargeDeterminator.com – can use to tell if a tax is nondischargeable, general, nonpriority, unsecured debt vs. dischargeable. Private provider – this firm does not does not take a position as to the accuracy of the information therein.
• It is my understanding that Arizona does not have a sale’s tax, it has a transaction privilege tax which taxes the seller, not the buyer.  Again, I an not a tax expert.

IRS General Procedures Manual

Overview of Bankruptcy
Chapter 11

General rule to discharge taxes:

Chapter 7 – consider talking to a tax expert about waiting to file the bankruptcy until after 3 years since due, 2 years since filed and 240 days since assessed. Exception: chapter 13 – supposedly 2 year rule not applicable. WARNING – Again I am not a tax attorney. Get competent advice from someone who is.

IRS’s Publication 4681 is a very helpful tool to explore the different ways taxpayers can exclude mortgage indebtedness and other types of 1099 forgiveness.

In order to be certain that a tax is discharged according to a local IRS attorney wait 4-5 weeks after the discharge is entered then order a transcript or call the agent assigned to the file. It is likely that the appropriate taxes will be discharged. Otherwise, file an adversary in the bankruptcy to discharge the debt. This gives us an order that the IRS has to follow. IRS no longer uses the efficient and logical administrative procedure regarding dischargability of income taxes in chapter 7 bankruptcy cases that they used for so many years where we could write to them and they would tell us if they agreed that the tax was dischargeable. In the adversary, IRS will usually stipulate to the order if the times are correct. This gives the debtor ironclad proof of the dischargeability.

Regarding the extension, look at the transcript. An entry for “Code 460, Extension of time to file” certainly shows an extension. Also, look for the Code 150: “Tax Return Filed”. This will show a date. A date before August 15 usually indicates an April 15 filing; IRS just logs it in late. If the case is still open, you could still file the adversary. Or, go the the IRS local office now and try and get them to agree that the tax is discharged

As of 1997 the information below was the law on how to discharge taxes after a bankruptcy has been filed. It may have dramatically changed since this writing. This should be included in every client letter of a person who owes back taxes to the Federal Government.

As a result of Bankruptcy Code Sections 523 and 507 the following taxes are dischargeable:
1. Tax penalties for non-filing, late payment, late deposit, fraud penalties and late estimated payments if the taxes to which they relate are dischargeable.
2. Income taxes which are:
a. Over three years old;
b. Have been filed at least two years prior to the petition; and/or
c. Have been assessed as an audit deficiency for at least 240 days.
3. Estate and gift taxes which are over three years old.
** A taxpayer must not have filed a fraudulent return or otherwise tried to willfully evade payment of the tax.

Once a discharge has been entered by the Bankruptcy Court, submit a written request to Special Procedures Branch that the IRS abate the tax. The Service will abate the liability by preparing a Form 3870. The author has found that the IRS is very inefficient in preparing post-bankruptcy abatements. Many clients have had levies made on their wages or bank accounts after a bankruptcy. You must aggressively pursue abatement. If all else fails, the client may request that the Bankruptcy Court hold the IRS in contempt of court. Until the IRS begins protecting the rights of bankrupts, the IRS may take illegal levy action notwithstanding the bankruptcy. If you have taken reasonable steps to notify the IRS of the bankruptcy and discharge, you will have a potential cause of action for reckless violation of the Code [IRC § 7433].

However, the Bankruptcy Court has the authority upon review of a debtor’s Chapter 7 bankruptcy to deny discharge and dismiss the matter if it believes the debtor can partially or fully repay some debts. In other words, the Court might try to force a conversion to a Chapter 13 bankruptcy upon a person who originally petitioned for a Chapter 7 bankruptcy. Such a decision is based upon an income and expense statement which all debtors have been required to file since the 1984 amendments to the Bankruptcy Code.

Morgan King – Ed. Note: This case is a textbook example of the attorney getting the rules for discharge all mixed up.

• 240 day rule: tax must be assessed more than 240 days.
• 2 year rule: the taxpayer must file his/her return more than 2 years before the bankruptcy. 11 U.S.C. § 523(a)(1)(B).
• 3 year rule: The due date for filing the return that must be over 3 years prior to the filing of the bankruptcy. The due date is either April 15th of the year following the tax year, or at the time of all extensions.

IRS publication:

Litigating Position Regarding the Dischargeability in Bankruptcy of Tax Liabilities Reported on Late-Filed Returns and Returns Filed After Assessment.

In re Thaxton (Bankr. S.D. W. Va., 2017)  Held, Debtor’s postpetition interest on IRS taxes not discharged Court seems to recognize that postpetition interest on nondischargeable taxes would be discharged, but only if the plan so provided, and the IRS had been given adequate notice of that plan provision.

The debtor filed a chapter 13 case with a plan that provided for full payment of unsecured priority trust-fund taxes. The principal of the liability was paid in full in the debtor’s chapter 13.  Following the final discharge, the IRS sent the debtor a notice of their intention to levy for the post-petition interest that had accrued, but not paid, in the Plan.

The court held that, unlike a secured claim, the plan could not provide for payment of postpetition interest on a non-dischargeable tax. The Bankruptcy  Code § 1322(a)(10) provides that the plan may provide for payment of postpetition interest on unsecured nondischargeable taxes (e.g., trust-fund taxes) but only if the plan is a 100% plan.

“Section 502(b)(2), however, does not mean that interest ceases to accrue or that a debtor is exonerated therefrom. Rather, post-petition interest accrues outside the Chapter 13 plan and the debtor remains personally liable therefor post discharge.”

The Thaxton court appears to acknowledge that, in some cases, postpetition interest on nondischargeable taxes would be discharged, but only if the plan so provided, and the IRS had been given adequate notice of that plan provision. In this case, this did not happen.  “They made no mention of their intent to pay only the principal of the claim. They also did not tender a clear, open and explicit statement that interest accrued post-petition would be discharged.”

See also, In re Hanna, 872 F.2d 829, 831 (8th Cir. 1989); Johnson v. Internal Revenue Serv. 146 F.3d 252, 260 (5th Cir. 1998). Our Court of Appeals is in accord. See In re Kielisch, 258 F.3d 315, 321-22 (4th Cir. 2001).

In re Olshan (01/28/04 – No. 02-56792) (U.S. 9th Circuit Court of Appeals) Bankruptcy court erred in rejecting the IRS’ claims for unreported non-business income and overstated business deductions after finding that the IRS’ method of computing debtor’s unreported business income was flawed. Undisputed evidence in the record will enable the bankruptcy court to determine debtor’s liability for taxes, penalties, and interest.

US Internal Revenue Serv. v. Snyder, No. 02-15618 (9th Cir. September 15, 2003) An IRS claim for delinquent taxes secured outside of bankruptcy by a lien on a debtor’s interest in an ERISA-qualified pension plan is not secured under 11 U.S.C. section 506(a), because a debtor’s interest in an ERISA-qualified plan is excluded from the bankruptcy estate pursuant to 11 U.S.C. section 541(c)(2).

ERRONEOUS TAX REFUND IS DISCHARGEABLE

In re Frontone ___ B.R. ___ (C.D.Ill. 2003) Held, an overpayment to the taxpayer of a tax refund is a debt owed to the IRS, but is not treated the same as the underlying tax, and therefore is dischargeable in Chapter 7.

In May 2001 the IRS sent debtors a notice saying they had overpaid their tax and refunded them $5,140. Subsequently, the IRS assessed additional taxes owed, and demanded the refund be paid back. In September 2002 the debtors filed Chapter 7 and filed an objection to the IRS claim. The court held that § 507(c) gives an erroneous tax refund the same “priority” as the underlying tax, but not the same nondischargeable status.

“The legislative intent behind the change made in 1984 to the language of Section 507(c) is easy to ascertain. Congress obviously concluded – correctly – that it is inequitable to treat taxpayers who fail or decline to pay their income taxes the same as taxpayers who pay their income taxes but who incur obligations to a governmental unit as a result of that governmental unit’s erroneously refunding taxes paid.”

Dunmore v. U.S., (9th Cir. 2004) Only bankruptcy estate had standing to pursue tax refund that debtor failed to schedule. Dunmore, as a debtor seeking bankruptcy relief, had a duty to carefully schedule his assets, including his refund claims, on his bankruptcy petition. Cusano v. Klein, 264 F.3d 936, 945-46 (9th Cir. 2001). Dunmore, however, breached this duty when he chose not to schedule his claims against the IRS on his Chapter 7 petition. By operation of statute, assets that Dunmore failed to schedule remained the bankruptcy estate’s property, even after the court discharged his debt. 11 U.S.C. § 554(c), (d). Thus, the unscheduled tax refund claims remained the estate’s property post-bankruptcy. Accordingly, we conclude that the bankruptcy estate was the real party plaintiff in interest at the time Dunmore filed his action.

Where are my tax refunds?  Online tool, taxpayers can start checking on the status of their return within 24 hours after the IRS receives an e-filed return or four weeks after the taxpayer mailed a paper return. The tool has a tracker that displays progress through three phases: (1) Return Received; (2) Refund Approved; and (3) Refund Sent.

ADOR vs Action Marine, Az Ct Apps 1 CA-TX 06-0006 – in an Arizona Supreme Court decision that holds that the “responsible persons” for a business entity may be PERSONALLY liable for the transaction privilege taxes (you probably call these sales taxes) collected by an entity if the entity doesn’t pay them over to the ADOR, even if the entity files for bankruptcy relief. Historically, most people would have thought that the “responsible person” for the taxes was just the entity itself and not the individuals involved in the entity and that the individuals could not be held liable. Indeed, that was the very holding in bankruptcy decision “Inselman” that is cited by the Arizona Supreme Court.

In re Inselman, 334 B.R. 267 (Bankruptcy Court, District of Arizona 2005)- The Court here concludes that Arizona statutes do not impose “responsible person” liability for the transaction privilege tax liability incurred by a company that is a separate legal entity.  The Court therefore concludes that A.R.S. § 42-5028 imposes liability only upon the merchant/taxpayer who engages in the transactions that give rise to the tax, and not upon the officers, employees or agents of such a separate business entity. Consequently the Debtor’s objection to the AZDOR proof of claim pertaining to TPT taxes incurred by the Company is sustained, and that claim is disallowed.

In Re: Michael Calabrese, JR., No. 11-3793 United States Third Circuit, 07/20/2012
In a former restaurant owner’s bankruptcy proceedings, the Bankruptcy Court’s holding that the sales taxes at issue are trust fund taxes under 11 U.S.C. section 507(a)(8)(C) rather than excise taxes under section 507(a)(8)(E) is affirmed, as sales taxes collected by a retailer never become the property of the retailer because it retains those funds in trust for the state, and therefore, petitioner’s sales-tax obligation is subject to section 507(a)(8)(C) and is not dischargeable.

Miller v. US, No. 02-17073 (9th Cir. April 13, 2004) The interplay of Bankruptcy Code sections 1141(d)(2), 523(a)(1)(A), and 507(a)(8) renders an IRS claim for unpaid withholding taxes nondischargeable by a confirmed Chapter 11 bankruptcy plan, whether or not that claim was secured.

Goldberg v. Ellett (07/16/01 – No. 00-15128) (9th Cir. Ct App) Bankruptcy court may enjoin a state tax official from collecting state taxes purportedly discharged in a bankruptcy proceeding in which state declined to participate.

Deroche v. Arizona Indus. Comm’n (11/29/01 – No. 99-16058) (9th Cir. Ct App) When determining the dischargeability in bankruptcy of an excise tax owed on a “transaction,” in which an employer reimbursed the state’s Special Fund for failure to carry insurance, the date of the “transaction” is the date on which the worker was injured; thus, since transaction occurred over three years prior to filing bankruptcy, the excise tax debt was dischargeable.

In re Sandia Tobacco Manufacturers (Bankr. D. New Mexico Oct. 10 2018) (from KING TAX HOTWIRE <morgan@morganking.com></morgan@morganking.com>

This case addresses several issues in connection with “excise taxes.” The Bankruptcy Code provides that excise taxes are dischargeable if the taxable  event (the sale or other event) happened more than 3 years before the BK is filed (11 U.S.C. § 507(a)(8)(E).

One would think the discharge issues for excise taxes would be fairly simple. But this case demonstrates there may be a myriad of questions:

Issues addressed:

• Is it a “tax”?
• Is it imposed for a public purpose? By a legislative body?
• How do you determine the date of the taxable events?
• Are they over the 3-year look-back for discharge?

The case involves a variation on the theme of state-imposed excise taxes, in that the taxes were imposed by a not-typically “taxing” entity – the U.S. Department of Agriculture, pursuant to the Equitable Tobacco Reform Act of 2004 (FETRA).

In a nutshell, the Department paid eligible tobacco farmers “transition payments” for 10 years, to account for a drop in prices. Then, Congress authorized the Ag. Dept. to assess tobacco manufacturers payments back to the Agency (for reasons that are obscure to the author).

Ultimately  the question became, are the payments that were assessed excise taxes, regulatory fees, customs duties, or other fees or penalties?  If excise taxes, they were subject to 11 U.S.C. § 507(a)(8)(E) and possible discharge in bankruptcy.

If subject to § 507(a)(8)(E), did the transactions occur more than three years before the bankruptcy filing?

Were they “taxes”?

The court found the assessments to be taxes based on the elements of a tax; 1) Involuntary, 2) Imposed by a legislative body, 3) imposed for a public purpose (i.e., not as a fee for a particular service), 4) Under the police or taxing power of the state. This is referred to as the Chateauugay/Lorber test.*

Noting that Congress authorized the assessments, not for a specific service, but ” … was to stabilize the tobacco industry,” the opinion explores these questions and holds the assessments to be taxes.

Were they “excise” taxes?

Next, the court, referencing § 507(a)(8)(E)(ii), held that they were “excise” taxes, more or less by eliminating other kinds of taxes as not applicable to the taxes at issue:

“As the FETRA assessments against the Debtor did not provide revenue from imports but instead provided revenue based on Debtor’s business manufacturing tobacco products in the United States, the Court concludes that the FETRA assessments, as applied to the Debtor, are properly characterized as excise taxes.”

When did the taxable event occur?

Next, when did the assessment events occur? If over 3 years before the bankruptcy filing, they are dischargeable. The court discusses the facts surrounding these taxes and an argument about when, exactly, the relevant event happened.

The bickering was over, should the triggering event occur on a quarterly, or an annual basis? ” … the Court concludes that the ‘transaction upon which the FETRA excise tax is imposed is the removal of product from inventory … and therefore the relevant transaction date is the date the product is removed from inventory, not the date the USDA sends an invoice for the assessment, nor the date the invoice is due.”

Conclusion:

Based on the extensive analysis (the opinion runs 19 pages) the court found some of the taxes dischargeable, and some nondischargeable (i.e., priority) based on whether the taxable events were more, or less, than 3 years before the bankruptcy was filed.

US v. Galletti, No. 01-55953/4 (9th Cir. August 08, 2002) The IRS cannot collect a partnership’s tax deficiency directly from the partners, without first making individualized assessments or obtaining judgments against the partners, holding them liable for the partnership’s tax debts; bankruptcy claims were time-barred.

An offer in compromise “OIC” tolls the 240 day period of §507(a)(8)(A)(ii) for the time the OIC overlaps the 240 day assessment period plus 30 days §507(a)(8)(A)(ii)(l).  See if your client signed a IRS form 656 for voluntary tolling as well.

An offer in compromise only tolls the 240 day rule. The 240 day rule relates to bankruptcy filings within 240 days of an assessment. So an offer made more than 240 days after an assessment does not toll anything.  (Note – I don’t believe an  installment payment is the same as  an OIC.  This is up to you to confirm.)

Look at all rules and liens, to see if it is general unsecured, priority, secured.  But the 240 day rule would be satisfied and would not be impacted by an OIC if the assessment is more than 240 days before the OIC.

The literal reading of the Code does NOT conclusively list all tolling situations, at least according to the IRS. The Supreme Court held in Young v US that equitable tolling can apply, and thus that (before it was provided in the Code) a prior BK can toll the periods in 507. Under BAPCPA, a prior BK tolls the 3 year and 240 day periods (plus 90 days), but the Service maintains  that a prior BK tolls the 2 year rule as well.

It does not  appear that anyone has yet determined that an installment agreement tolls dischargeability. But the state tax authorities could make that argument. However “requesting” an installment does toll the CSED from when requested until the decision is made. But the actual agreement itself does not toll.

The Collection Statute Expiration Date (CSED) is the last day the IRS has to collect a tax liability, which is 10 years from the date of assessment, in most cases. This collection period begins on the day after the assessment of the tax liability.

Note: Make sure to pull the transcripts.

The 3-year period that ordinarily commences on the most recent date the tax return for the year in question is due, pursuant to 11 U.S.C. § 507(a)(8)(A)(i). The basic rule is, if the tax collection entity (state or federal) is prohibited from tax collection due to the existence of the automatic stay in a bankruptcy case that arose during, or overlapped, the running of the 3-year time, the time is tolled (or “suspended”) for the time in which the previous case’s automatic stay overlaps the 3-year period, plus an additional 90 days.

That rule is relatively simple to apply. You begin with the due date, extend it out 3 years, then add the time a prior bankruptcy case stay overlapped, then add on an additional 90 days.

In re: Brenda Marie Jones, No. 10-60000 In a bankruptcy dispute involving the discharge of taxes owed by debtor in a new chapter 7 case to the California Franchise Board, judgment of the bankruptcy court is affirmed where debtor’s prior Chapter 13 bankruptcy case had no effect on the look back period such that the period was not suspended and the tax debt discharged.

ARS 42-1151. Tax Lien
A. If any tax, interest, penalty or other amount owed by the taxpayer to the department that the department is required to collect is not paid by a taxpayer when due, such unpaid amounts constitute a lien upon all property and rights to property, whether real or personal, belonging to the taxpayer or acquired by the taxpayer from the date the amounts are assessed or the date the return prescribing the liability is filed until the liability for the assessed amounts is satisfied.

TAX LIEN FLOW CHART.  It is my understanding that an IRS lien is generally valid valid for 10 years after assessment, not after recording of the tax lien.   Most likely the lien is good for 10 years, then the lien expires unless the IRS sues in court and obtains a judicial judgment lien which is renewable.

Also, even if the IRS has a lien on property such a vehicles or a house, it seems to rare for the IRS move to enforce the lien by selling the property vehicle or house.  But, that assumes the taxpayer does not have assets which could be seized to pay the lien.  Always work with an experienced tax attorney to settle tax debts.

The debtor’s personal liability for taxes is discharged in Chapter 7, then the recorded IRS lien survives the Chapter 7 as a lien against only the property owned by the debtor at the time the bankruptcy was filed and not against property acquired by the debtor after the time the bankruptcy was filed (but check this out with an experienced tax/bankruptcy attorney).

IRS TAX LIEN: The tax lien trumps the exemptions.  The IRS will not release a lien with multiple years unless all years are discharged or paid.  If there is property still subject to the Lien, ask that the IRS to release as on the basis that the property is small.  Otherwise, a payment arrangement can be set up.

INTEREST: – under 26 USC 511, Chapter 13 debtors are required to pay the IRS the quarterly rate it sets, but only simple interest (as opposed to the normal IRS rate of compound interest) for the quarter in which the plan is confirmed.   The interest rates are set under the authority of 26 USC 6621.

N. Slope Borough v. Barstow (10/21/02 – No. 01-35892/35901)(9th Cir) Under Bankruptcy Code section 724(b), priority unsecured creditors have a right to obtain only that portion of the proceeds equaling the amount of the tax liens. Any remaining proceeds go first to junior lien claimants, then to the holders of the tax liens insofar as their claims were not already satisfied and, finally, to the estate.

Barstow v. US Internal Revenue Serv. (10/21/02 – No. 01-35819) (9th Cir) The term “tax lien” in Bankruptcy Code section 724(b) means a statutory tax lien, and the term does not embrace a judicial lien securing an underlying tax obligation.

Stein v. Cadle Co. (05/10/01 – No. 99-56751) Under the Federal Priority Statute, 31 USC 3713 gives the federal government priority over other judgment creditors notwithstanding the Federal Tax Lien Act.

Does the 2 year Fraudulent Conveyance/Transfer Apply to payments made to the IRS?  Zazzali v. U.S. (In re DBSI Inc.), 16-35597 and 16-35598 (9th Cir. Aug. 31, 2017) Issue: can the government (IRS), arguing sovereign immunity, prevent the fraudulent avoidance of the tax payments?  Conclusion: No.

Operated as a Ponzi scheme, the debtor was a so-called subchapter S corporation that paid the IRS about $17 million on account of taxes owing by its shareholders. Under a confirmed chapter 11 plan, the trustee for a creditors’ trust sued the IRS to recover the payments.  We must decide whether a bankruptcy trustee can, through an adversary proceeding, avoid a debtor’s federal tax payment, or whether the Internal Revenue Service’s (“IRS” or “government”) sovereign immunity prevents such relief. To resolve this question, we must consider the interplay between two Bankruptcy Code statutes: 11 U.S.C. §§ 106(a)(1) (“Section 106(a)(1)”) and 544(b)(1) (“Section 544(b)(1)”). In Section 106(a)(1), Congress unambiguously abrogated sovereign immunity “with respect to” Section 544(b)(1). Under Section 544(b)(1), a trustee may avoid fraudulent transfers when the trustee can demonstrate that an actual unsecured creditor could avoid the same transfer under “applicable law” outside of bankruptcy. This is known as the “actual creditor” or “triggering creditor” requirement as it requires the existence of an actual creditor in whose shoes a trustee can stand.

The bankruptcy Trustee invoked Idaho’s Uniform Fraudulent Transfer Act (“UFTA”), Idaho Code Ann. §§ 55–901 ¹ et seq., as the “applicable law” to bring a Section 544(b)(1) adversary action to avoid $17 million in tax payments that the debtor, DBSI, Inc., fraudulently transferred to the IRS. An unsecured creditor who seeks to avoid such tax payments under Idaho law outside of bankruptcy would be precluded from doing so because of the government’s sovereign immunity. The question, then, is whether, in the bankruptcy context, Congress’s abrogation of sovereign immunity with respect to Section 544(b)(1) extends to the underlying state cause of action, or whether a trustee must also establish that Congress has waived sovereign immunity with respect to Idaho’s UFTA.

Both the bankruptcy court and the district court ruled that Section 106(a)(1)’s abrogation of sovereign immunity “with respect to” Section 544(b)(1) extends to the derivative “applicable law”—here, Idaho’s UFTA. In other words, an additional waiver of sovereign immunity was not necessary. As a result, the government could not rely on sovereign immunity to prevent the avoidance of the tax payments at issue. We agree, and affirm. ^{read more}

The following is from Morgan King:

DEBTOR FAILED TO EXHAUST ADMINISTRATIVE REMEDIES

In re Thal & Slattery (Bankr. S.D. Fla., 2018)

From the opinion:
“These cases present the latest entry in an ongoing debate – if a former debtor seeks damages or attorney fees and costs from the Internal Revenue Service (the ”
IRS”) for violations of the discharge injunction, is the former debtor first required to exhaust administrative remedies before seeking recourse from the bankruptcy court? Having carefully considered the applicable statutes and case law, I have determined that the majority view is correct –

” . . . in order for a former debtor to seek recovery of damages, fees, or costs from the IRS in connection with a discharge injunction violation, the former debtor must first comply with the requirements of 26 U.S.C. §§7430 and 74332.”
In this case the IRS attempted to collect discharged taxes following the final chapter 13 discharge. The debtor filed a motion seeking contempt, refund of the money seized, punitive damages, and attorneys’ fees and costs.

The court held that the debtor must first exhaust IRS administrative remedies before seeking attorney’s fees and costs, punitive damages, and general damages.

The court cited 26 U.S.C. § 7433(b), § 7433(d)(1), § 7433(e),

IRS HELD FOR VIOLATION OF FINAL DISCHARGE

Internal Revenue Service v. Murphy, No. 17-1601 (1st Cir. 2018)

An employee of the Internal Revenue Service (IRS) “willfully violates” an order from the bankruptcy court discharging the debts of a debtor-taxpayer, as that term is used in 26 U.S.C. 7433(e), when the employee knows of the discharge order and takes an intentional action that violates the order. William Murphy filed a Chapter 7 petition in the bankruptcy court seeking primarily to discharge his tax obligations.

The bankruptcy court granted Murphy a discharge. Murphy later successfully filed an adversarial proceeding seeking a declaration that his relevant tax obligations had been discharged. Murphy then filed a complaint against the IRS alleging that one of its employees willfully violated the bankruptcy court’s discharge order by issuing levies against the insurance companies with which he did business in an attempt to collect on his discharged tax obligations. The bankruptcy court granted summary judgment for Murphy.

The parties eventually entered into a settlement agreement whereby the IRS accepted the summary judgment ruling. After final judgment was entered against the IRS, the IRS appealed. The First Circuit affirmed, holding that the IRS’s reasonable and good faith belief that the discharge injunction did not apply to its collection efforts was not relevant to determining whether it “willfully violate[d]” the discharge order.

1. Collection Allowed After The Discharge Of Other Debts

Unfortunately, in a Chapter 7 bankruptcy, the tax agencies may resume collection activity from you on non-discharged taxes as soon as you receive your discharge of other debts, which is normally 4-6 months after you file chapter 7 bankruptcy. The tax agencies may collect from you even though the Chapter 7 trustee has or will have enough money in your bankruptcy case to pay some or all of the non-discharged taxes. The tax agencies do not need to wait to get paid by the trustee and often refuse to wait.

2. No Priority Subrogation If The Taxpayer Pays Taxes That the Trustee Would Have Paid

If the tax agencies collect from you on non-discharged taxes after you file bankruptcy and before the chapter 7 trustee makes payments to creditors, you do not take over (subrogation/assignment) the tax agencies’ priority claims in the bankruptcy. 11 USC 507(d). In other words, you do not step into the shoes of the tax agency. You do not get a priority distribution by the bankruptcy trustee for priority taxes you paid. At best you might have a non-priority claim for reimbursement, which is unlikely to be paid much, if anything. However, one court has ruled that the debtor does not get any subrogation at all because 11 USC 509(c) provides for subrogation for a person who “is liable with the debtor” on a claim and pays the claim. A debtor cannot be liable with himself. In re Allen, Bkrtcy. D. Mass. December 11, 2006, No. 04-1266-JNF. That is why it is usually to your benefit to try to liquidate your non-exempt property (and in some cases your exempt property) before filing bankruptcy and pay as much of the non-dischargeable taxes yourself before filing bankruptcy. Always consult with a bankruptcy attorney first.

3. Interest and Penalties

To make matters worse, interest continue to accrue on non-discharged taxes after a Chapter 7 bankruptcy is filed. Normally penalties are not discharged if the taxes are not discharged. However, penalties are discharged even though the taxes are not discharged if the event which gave rise to the penalty, such as failure to file a return and failure to pay taxes, occurred more than three years before the bankruptcy was filed. 11 USC §523(a)(7)(B). If the Chapter 7 trustee has money to distribute, the Chapter 7 trustee will only pay the principal and interest owed on priority unsecured taxes the day the bankruptcy was filed. So even if the trustee pays on priority unsecured taxes, he will not pay any penalties, regardless of whether the penalties accrued before or after you file bankruptcy, and he will not pay any interest that accrues after you file bankruptcy. (There may be a rare exception if the trustee has sufficient money to pay all creditors in full with interest.) You remain liable for any unpaid amounts, whether interest, penalties or principal. In addition, the Chapter 7 trustee first pays the trustee’s fees and administrative expenses, which leaves less to pay the taxes. Again, it is usually to your benefit to try to liquidate your non-exempt property (and in some cases your exempt property because many exemptions are not effective against tax agencies) before filing chapter 7 and pay as much of the non-dischargeable taxes yourself before filing bankruptcy. It is usually not in your best interest to assume the trustee will pay your non-discharged taxes.

Kolve v. Internal Revenue Service Dept, Sept. 22 2011 (Bkrtcy.W.D.Wisconsin) The Court held that the Debtors’ prior chapter 13 did not toll IRS collection of the taxes – hence the 3-year rule was satisfied and the taxes were discharged. The debtors in this case filed a prior chapter 13 prior to the date several previous tax liabilities actually came due. That case was later dismissed prior to plan completion.

The plan contained the boilerplate provision found at 11 U.S.C. § 1327(b) vesting all property into the hands of the debtors. Subsequently, more than 3 years following the filing due date of the previous tax liabilities, the debtors filed a new chapter 13. The IRS argued that the prior chapter 13 had tolled the running of the 3-year period, thus rendering the liabilities non-dischargeable in the new case.

The case raised several questions.
1. If a tax is not due at the time the bankruptcy is filed and the automatic stay arises, can it be said that the filing of the bankruptcy tolled the 3-year period, given that the stay did not prohibit collection (since there were no taxes due for which collection could be “prohibited”)?
2. Did the prior chapter 13 toll the 3-year period at all, since the confirmation of the plan re-vested the assets (or a substantial portion of them) into the hands of the debtors (thus rendering them not protected against post-petition tax collection).

In other words, where the IRS was prohibited from collecting only a portion of the debtors’ assets (the post-petition income dedicated to the plan), did the case toll the running of the 3-year period? The court said, no.

The court made several rulings, including, that it is not the bankruptcy per se that can be said to prohibit collection, but rather the automatic stay; that it cannot be said that the IRS was prohibited from collecting a tax that had not yet come due; and that since the Plan did not prohibit all tax collection, it cannot be said that the time period was tolled for discharge purposes.

Excerpted from the opinion:
” … after confirmation the debtor receives control of at least some of the assets which had formerly been property of the estate. What does this mean for the equitable tolling (or suspension) of the look back period in this case? After the debtors’ extension requests expired, the 2005 and 2006 income taxes were due October 15, 2006, and October 15, 2007, respectively.

“The debtors’ chapter 13 plan was confirmed in February of 2006. The plan does not appear to have contained any provision which would prohibit the collection of these tax claims. The confirmation returned control over all pre-confirmation property of the estate to the debtors, and at least some post-confirmation property as well.

“This re-vesting meant that the automatic stay — which had previously acted to prevent post-petition creditors from pursuing property of the estate — was no longer “in effect” as to those assets. The stay never prohibited the IRS from pursuing a collection action against the debtors, and at the time these tax claims came due, the “stay of proceedings” was in effect (at most) as to only a portion of the debtors’ post-confirmation assets.

“Which circles back to the crucial question. Was the IRS actually prohibited from collecting these tax claims at any point after the October 2006 due date of the 2005 taxes or the October 2007 due date of the 2006 taxes?

“This Court agrees with [prior case] Jones that the answer to this question is no. The tolling provision of § 507(a)(8) only applies to situations in which the taxing authority was actually affected by the automatic stay in the prior case.

“The phrase “stay of proceedings” in the statute relates to “an otherwise applicable time period” as to collection of tax claims. The congressional purpose in enacting the statute was to codify the decision in Young, which was premised upon the idea that tolling was justified because the IRS had been “disabled from protecting its claim” during the pendency of the prior case. … As the IRS did not in fact suffer under any such disability, and could instead have acted to collect the post-confirmation taxes at any time after they came due from those assets which had re-vested in the debtor upon confirmation under § 1327, there is no basis for tolling, whether pursuant to the statute or in equity.”

Loving v. United States (In re Loving) (Bankr.S.D.Ala., 2011) (8/29/11) Debtor files case before 3-year rule satisfied. On April 8, 2011 a consumer bankruptcy attorney filed a bankruptcy case to discharge income taxes for tax year 2007. Unfortunately, the 3-year rule would not be satisfied until 7 days later (April 15 2011). The IRS objected to discharge, citing the 3-year rule that the due date for filing the return must be over 3 years prior to filing the bankruptcy. 11 U.S.C. § 507(a)(8)(A)(i).

The Court observed: “In [her] response, Plaintiff asserted that she filed her tax return on February 19, 2008, a date that is more than three years prior to her bankruptcy filing. Also, she alleged that her 2007 taxes were assessed more than three years prior to her bankruptcy filing.”

In granting the IRS motion for summary judgment in the case, the court noted that the rule regarding when a tax is assessed had no bearing on the key issue here; to be dischargeable the tax must have been assessed more than 240 days prior to bankruptcy, which occurred in this case. 11 U.S.C. § 507(a)(8)(A)(ii). The court also observed that the date the bankruptcy was filed was within 3 years from the most recent due date for filing the return.

In re Thaxton (Bankr. S.D. W. Va., 2017) May 30 2017 Held, Debtor’s postpetition interest on IRS taxes not discharged.  The debtor filed a chapter 13 case with a plan that provided for full payment of unsecured priority trust-fund taxes. The principal of the liability was paid in full in the debtor’s chapter 13.

Following the final discharge, the IRS sent the debtor a notice of their intention to levy for the post-petition interest that had accrued, but not paid, in the Plan.

The court held that, unlike a secured claim, the plan could not provide for payment of postpetition interest on a non-dischargeable tax. The Bankruptcy Code § 1322(a)(10) provides that the plan may provide for payment of postpetition interest on unsecured nondischargeable taxes (e.g., trust-fund taxes) but only if the plan is a 100% plan.

“Section 502(b)(2), however, does not mean that interest ceases to accrue or that a debtor is exonerated therefrom. Rather, post-petition interest accrues outside the Chapter 13 plan and the debtor remains personally liable therefor post discharge.”

The circumstances here indicate the obligation owed by the Thaxtons is in the nature of post-petition, or “unmatured” interest inasmuch as it accrued on their obligation to the Service during the pendency of the plan. Title 11 U.S.C. § 502 provides pertinently as follows:

(a) A claim or interest, proof of which is filed under [§] 501 of this title, is deemed allowed . . . (b) Except as provided in subsections (e)(2), (f), (g), (h) and (i) of this section, if such objection to a claim is made, the court, after notice and hearing, shall determine the amount of such claim in lawful currency of the United States as of the date of the filing of the petition, and shall allow such claim in such amount, except to the extent that — . . . . (2) Such claim is for unmatured interest[.]

The Thaxton court appears to acknowledge that, in some cases, postpetition interest on nondischargeable taxes would be discharged, but only if the plan so provided, and the IRS had been given adequate notice of
that plan. (Source: Morgan King)

Category 2, Unsecured Not Priority, Not Discharged and Not Paid In Full Through The Plan

Taxes are not discharged and are not paid as priority taxes through the plan if BOTH of these apply:
1. The tax return, with any extensions, was due more than three years before filing bankruptcy,
and
2. The taxes were not assessed before the bankruptcy was filed but were assessable under applicable law after the bankruptcy was filed, and ONE OR MORE of the following apply to this paragraph 2:
(1) The return was not filed, or
(2) The return was filed less than 2 years before the bankruptcy was filed, or
(3) The taxpayor attempted to evade taxes, or
(4) The taxpayor filed a fraudulent return.
Such taxes probably will be paid only a few cents on the dollar in the Chapter 13 plan, the same as credit cards, but will not be discharged. This means you will continue to owe any unpaid amount after the completion of the Chapter 13 plan.

From Dan Furlong’s materials from the Bankruptcy 201 program

Section 521(e)(2)(A)(i) requires a debtor to turn over a tax return to the trustee “for the most recent tax year ending immediately before the commencement of the case.”

A tax agency may seize a refund for a tax year that ended before you filed bankruptcy and apply it to a tax owing for a tax year that ended before you filed bankruptcy. This is an exception to the automatic stay. 11 USC §362 (b) (26). Example: You file bankruptcy on January 15, 2008 before you file your tax return for tax year 2007. You owe taxes for tax year 2001 which will be discharged in your bankruptcy because they meet discharge requirements. If you are entitled to a refund for the 2007 tax year, then the tax agency may, without requesting permission from the Bankruptcy Court, seize the refund as a setoff and apply it to the 2001 taxes.

In re Martin, 543 B.R. 479 (BAP9th Cir. 2015)  BAP rejected the government’s argument that taxes can never be discharged if the debtor files a return after assessment by the IRS.

Smith v. I.R.S. (In re Smith), 828 F.3d 1094 (9th Cir. July 13, 2016) Bankruptcy The panel affirmed the district court’s order reversing the bankruptcy court and entering summary judgment in favor of the IRS in a debtor’s adversary proceeding seeking a determination that his federal income tax liabilities were dischargeable in bankruptcy.

NOTES: A Substitute for Return is not a return for purposes of the two year rule.   The most that the Debtor can discharge is the difference between the amount on the filed amended return and the amount owed for the Substitute Return.  Plus the amended return is would need to meet the two year rule.

Hall v. United States, No. 10-875 Supreme Court affirmed the Ninth Circuit, decided On May 14, 2012, holding that a federal income tax liability resulting from the post-petition sale of an individual debtor’s farm during the pendency of a Chapter 12 bankruptcy is not “incurred by the estate” within the meaning of 11 U.S.C. § 503(b)(B)(i) and therefore is not dischargeable in the bankruptcy. This case turned on whether the tax was “incurred by the estate.”

An offer in compromise “OIC” tolls the 240 day period of §507(a)(8)(A)(ii) for the time the OIC overlaps the 240 day assessment period plus 30 days §507(a)(8)(A)(ii)(l).  See if your client signed a IRS form 656 for voluntary tolling as well.

An offer in compromise only tolls the 240 day rule. The 240 day rule relates to bankruptcy filings within 240 days of an assessment. So an offer made more than 240 days after an assessment does not toll anything.  (Note – I don’t believe an  installment payment is the same as  an OIC.  This is up to you to confirm.)

United States v. Brabant-Scribner (8th Circuit 2018)  Offer of compromise is not a reasonable alternative to seizure under 26 C.F.R. sec. 301.6334-1(d)(1), which requires an alternative for collection, not an alternative to collection.

The Eighth Circuit affirmed the district court’s grant of the government’s petition for permission to levy taxpayer’s home and to apply the proceeds toward her debt. The court rejected taxpayer’s claim that the government must respond to her offer to compromise the debt before the court may levy on her principal residence.

The relevant language is ‘a reasonable alternative for collection of the taxpayer’s debt.'” The word ‘for’ is key. An alternative for collection refers to a different source from which to collect the debt…. The IRS might have other assets the IRS can levy on instead of her home.

See United States Codes

• 6331(k) No levy while certain offers pending or installment agreement pending or in effect

“(k) No levy while certain offers pending or installment agreement pending or in effect

(1) Offer-in-compromise pending. No levy may be made under subsection (a) on the property or rights to property of any person with respect to any unpaid tax-

(A) during the period that an offer-in-compromise by such person under section 7122 of such unpaid tax is pending with the Secretary; and

(B) if such offer is rejected by the Secretary, during the 30 days thereafter (and, if an appeal of such rejection is filed within such 30 days, during the period that such appeal is pending).

article by Dan Furlong, Arizona bankruptcy attorney.

The general rule is that the chapter 7 trustee cannot pay taxes that become due for the tax year in which the bankruptcy was filed. For example, if you file chapter 7 bankruptcy on July 1 of a year (one half through the tax year) and the following April it is determined that you owe income taxes for that year, the trustee will not pay any of those taxes, not even one half, unless you split the tax year as explained in the next paragraph. There is language in the bankruptcy code, 11 USC §507(a)(8)(A)(iii), that seems to say the trustee can pay such taxes. However, most courts, including In re Allen, Bkrtcy. D. Mass. December 11, 2006, No. 04-1266-JNF have ruled that the trustee cannot pay such taxes unless the debtor elected to split the tax year.

The IRS code, 26 USC §1398(d)(2)(A), allows a Chapter 7 or Chapter 11 debtor to split a tax year into two short tax years. One short tax year ends the day before the bankruptcy is filed. The other short tax year starts the day the bankruptcy is filed. If such an election is made by the debtor, then the tax liability for the first short tax year may be paid by the trustee as a priority claim.

The election by the debtor to split the tax year must be made on or before the due date for filing the return for the tax year in which the bankruptcy was filed. The election is irrevocable.

However, the election does not apply if the bankruptcy is dismissed. The election may not be made if the debtor has no nonexempt assets. Daniel F. Furlong

SUMMARY: Most federal income taxes in Chapter 7 are dischargeable only if the debtor meets all of the following conditions:

• The discharge is for income taxes: Payroll taxes and penalties for fraud are not eligible for discharge.
• The debtor filed a legitimate tax return: The debtor filed a tax return for the relevant tax years at least two years before filing for bankruptcy.
• The tax liability is at least three years old: The tax debt is from a tax return that was originally due at least three years before filing for bankruptcy.
• The debtor is eligible under the 240-day rule: The IRS assessed the tax debt at least 240 days before the debtor filed for bankruptcy.
• The debtor did not commit willful tax evasion: Possible evasive actions include changing your Social Security number, your name, or the spelling of your name; repeated failure to pay taxes; filing a blank or incomplete tax return; and withdrawing cash from a bank account and hiding it.
• The debtor did not commit tax fraud: The return contains no information that was intended to defraud the IRS.

In other words, there are a number of subtle requirements that must be met before you can discharge a tax debt in bankruptcy. The best way to make sure you fulfill the requirements is to speak to a local attorney.

1/12/12 –  IRS says 90, but won’t put it in writing! As we know, in order to discharge a personal income tax liability in bankruptcy, five rules must be satisfied. One of these rules is, the bankruptcy must have been filed at least more than 3 years from the most recent due date for filing the return (typically, from April 15, or October 15). The 3-year period is extended for certain “tolling” events that may, or may not have occurred in the history of the liability.

For example, if, during the running of the 3-year period, the debtor filed either a previous bankruptcy, or a request for a collection due process hearing (“CDP”), the clock stops on the running of the 3-year period, for a period of time as provided in the Bankruptcy Code. But the language of the Bankruptcy Code appears to be at odds with the rule as actually practiced by the IRS, and therein lies a potential disaster for analysis of dischargeability of taxes.

A strict reading of the Bankruptcy Code, and the Tax Code, on the tolling effect of a CDP clearly results in the conclusion that the tolling period is the period from initial request for a CDP, to the date of final determination of the hearing, plus an additional 180 days.

The problem is that bankruptcy practitioners, and the IRS, assume one need only add 90 days. But if in fact one must add 180 days, it’s inevitable that some attorneys are going to file cases after only 90 days have been added, thus resulting in non-dischargeability, because the 3-year period will not have been satisfied.

In re Bunyan (01/20/04 – No. 02-56786) (U.S. 9th Circuit Court of Appeals) Pursuant to 11 U.S.C. section 505(a)(2)(A), the bankruptcy court lacked jurisdiction to consider the validity of income tax assessments filed by the IRS in Chapter 13 proceedings. A 1993 circuit court order granting the Commissioner’s motion to dismiss necessarily adjudicated the issue of when the tax court decisions became final.

CLICK HERE FOR IRS GUIDE TO TRANSACTION CODES 

According to Morgan King’s Law Letter # 35 <morgan@morganking.com> the problem is a simple misunderstanding about what kind of transcripts apply. Attorneys often simply request the taxpayer’s transcripts, without being more precise about what kind of transcript. So, in most cases, the IRS will provide Transcripts of Return, when what is needed instead are the Account Transcripts. They are totally different.</morgan@morganking.com>

Step one is getting the right transcripts

The Transcript of Return is nothing more than a summary of the information contained on the respective tax return. In contrast, the Account Transcript contains the entire history of that particular year’s tax liabilities from the IRS point of view, such as the amount of taxes and interest owed, whether or not the taxpayer filed a 1040 tax return and if so when it was filed, any extension to file, any substitute for return (SFR), subsequent audits and assessments, whether or not the taxpayer filed a past bankruptcy, offer-in-compromise, or appeal of a proposed assessment in the past, penalties, liens, and other important information for each respective tax year. Any part of that information may determine whether the tax liability is eligible for a bankruptcy discharge.

The IRS is not limited to only 3 years back for account transcripts. The author frequently gets account transcripts going back 8, 10, 12 years. Typically, the information on those transcripts makes it clear that the taxes are, or are not, dischargeable.

ALSO FROM MORGAN KING: A fundamental step in looking at a possible IRS tax-discharge bankruptcy is obtaining the IRS Account Transcript for each year for which taxes are owed. In a good many cases where the taxpayer failed to file his or her return on time (i.e., filed it after the due date in April or October), the transcript will answer three questions that must be satisfied to discharge the taxes; 1) the most recent date the tax return was due to be filed; 2) the date the client actually filed his/her tax return; and 3) the date the tax was assessed.

There are some issues that bear on the due date and the assessment date. But it’s the 2-year rule – the  date the client actually filed the return – that presents a greater set of issues that must be addressed.

In a nutshell, the 2-year rule is, the taxpayer must have filed his or her IRS Form 1040 at least more than 2 years before the bankruptcy is filed (plus more time if there is a “tolling event,” plus 90 days).

1) The “Tax Per Return” on the transcript shows zero

A zero is a clue that the taxpayer did not file a tax return; had there been a $$ dollar amount shown with the “Tax Per Return,” the figures almost certainly came from the taxpayer’s filed 1040 tax return; hence, the taxpayer did in fact file a return. But if there is no dollar amount shown with “Tax per return,” it is more likely that the return, if any, was a substitute for return (“SFR”) filed by the IRS, which is always blank (hence, sometimes called a “dummy return”).

Note, the date shown at “Return Due Date or Return Received Date – Whichever is Later,” is the actual date a return was filed for either the client’s 1040, or an IRS SFR. That date is the actual date the return or SFR was filed, not the date shown with Code 150. The phrase “Return filed and tax assessed” that typically appears with code 150 is misleading; it is not the rate the return was filed, and represents an assessment only if a $$ dollar amount appears with the code 150.

2) The transcript shows a code “460”  

Code 460 is an extension of the due date to October. The three-year period starts with the most recent due date (not the most recent actual filing date).

3) Code 420 but no 421 

A code 420 on the transcript, with no follow-up code 421. The start of an audit is indicated by code 420, and 421 indicates the conclusion of the audit. If there is a 420 and not also a code 421, it suggests that the audit is still going on. The point is that the audit may result in additional tax assessments. If the bankruptcy is filed before the audit is over and before a tax assessment occurs, the additional taxes will not be discharged until the assessment is final, plus 240 days. This could be called a sleeping assessment. Or, better yet, an assessment ambush. Don’t be blind-sided by a sleeping audit assessment.

4) Code 421

This is the end of the audit and may suggest sleeping assessment, this time by any state that has an income tax. States that have personal income taxes typically require that the taxpayer report any additional IRS liabilities from an audit to the respective state tax agency, so that the state can add its “piggyback” assessment. If you see 421, better check the state tax agency for the inevitable piggyback assessment (then wait out the time until that assessment is final, plus 90 days.

5) Code 520

The 520 code marks the filing of one of three things: 1) a prior bankruptcy, 2) an IRS Collection Due Process appeal, or 3) tax litigation. If any of these occur during the pendency of the 3-year, 2-year, and 240-day rules, the respective time period is tolled, or suspended, for the period such event halted tax collection, plus an additional 90 days. 11 U.S.C. ?????   If the tax is an IRS assessment, a prior bankruptcy stops collection (such as levy or vehicle grab) for the time during which the BK automatic stay prevents collection, plus 90 days.

6) Code 320

suggests a penalty in connection with criminal investigation. If the investigation means a true criminal offense has occurred, it may suggest that the tax failed either the fraudulent return or tax evasion rule, rendering the tax nondischargeable. But note, the elements that must be proved in connection with federal law (i.e., the IRS) may not be the same in connection with bankruptcy law. Hence, a code 320 is not dispositive and calls for further investigation by the BK attorney.

7. Code 240

indicates other penalty codes. This indication may be important because the penalties (excluding trust-fund penalty) are dischargeable if the event triggering the penalty happened more than 3 years before bankruptcy filing. Filing within under 3 years renders the penalty nondischarged in the bankruptcy. Penalties are indicated by other transaction codes such as 170, 180, 280, and 310 (for the identification of various transaction codes click on the IRS Guide link below.

8. Code 599

typically refers to the return filed by the debtor, but again is not dispositive. In some cases a code 599 means something other than the taxpayer’s tax return.

9. Code 290 and code 300
   are posted in connection with additional assessments. These codes often appear with no $ dollar amount, and hence may be ignored. But a dollar amount shown with code 290 or 300 is a new assessment that triggers a new 240-day rule as to the new assessment – the other rules, such as the 3-year rule, are not applicable as to that tax.
10. Code 275
    indicates the taxpayer requested a Collection Due Process Appeal (“CDP”). A CDP appeal is one of the tolling events that stops the clock on the running of the 3-year rule and the 240-day rule if made during that time. The period is tolled until the CDP is final plus 90 days.
11. A blank line between entries

Entries on the Account Transcript typically do not have blank space between the lines with the codes. A blank space between two items listed on the transcript with code numbers suggests that an entry has been whited out by the IRS. This, in turn, suggests that what was deleted is a code indicating a criminal proceeding.

NOTE FROM MORGAN KING: Your client may insist that he/she filed the tax return, and yet there is no evidence on the transcript corroborating it. However, just because it does not appear on the respective transcript, that alone is not always dispositive; it has been held that the burden is on the IRS to prove no return was filed; held for the debtor, McGrew v. IRS (Bankr.N.D.IA 2016).

ISSUE: Potential client in need of CH7 has admitted tax liability with IRS. Prior to considering bankruptcy she was having discussions about an offer in compromise. Tax liability about $15,000 with determination made and IRS levy letter of up to 15% of social security benefits received recently.

ANSWER: §6331(h) provides that a levy upon Social Security is a continuing levy.  Courts have held that a pre-petition levy upon Social Security, when accompanied by a prepetition tax lien filing, survives a bankruptcy discharge, because it’s effectively a lien on all future Social Security payments from day one.  See, e.g., Roberts v. United States/IRS (In re Roberts), 219 B.R. 573 (Bankr. D. Ore. 1997) (a preference and lien case).  Note – determine if your client has a lien filed as well as the Social Security levy.

If client receives a discharge, the IRS will probably stop its levy on post-petition social security benefits.  See Lee v. Schweiker, 739 F. 2d 870 (3rd Cir. 1984), and Matter of Neavear, 674 F. 2d 1201 (7th Cir. 1982), where the Social Security Administration was not allowed to setoff a prepetition debt against post-petition benefits, most likely the IRS will not fare any better (but note Schweiker and Neavear were both setoff cases involving Social Security overpayments – no IRS or Internal Revenue Code involvement). Also see 26 USC §6331 et seq. vs. 42 USC §407 et seq.