Public Law No. 116-260, Consolidated Appropriations Act of 2021, div. FF, tit. 10, § 1001(a) adds a new Bankruptcy Code § 541(b)(11) to the list of exclusions from property of the bankruptcy estate. It provides that “recovery rebates made under section 6428 of the Internal Revenue Code of 1986” are not property of the estate. The stimulus payments under the Consolidated Appropriations Act were authorized under new section 6428A of the Internal Revenue Code.
The ARPA stimulus payments are provided using this language: “Subchapter B of chapter 65 of the Internal Revenue Code of 1986 is amended by inserting after section 6428A the following new section … In the case of an eligible individual, there shall be allowed as a credit against the tax imposed by subtitle A for the first taxable year beginning in 2021 an amount equal to the 2021 rebate amount determined for such taxable year.” See ARPA § 9601(a). The ARPA stimulus payments are therefore authorized under IRC § 6428B. This means that consumers who receive an ARPA stimulus payment may file bankruptcy without having to use a wildcard or other exemption to protect the funds from possible recovery by the bankruptcy trustee.
It is possible that a court may construe section 6428B as a separate statute and therefore not a recovery rebate “under section 6428.” However, this interpretation would render meaningless the enactment of Code § 541(b)(11) because even the stimulus payments under the December 27, 2020 Consolidated Appropriations Act would not be protected—they were authorized under section 6428A, and the earlier stimulus payments under the CARES Act would have already been spent by debtors at the time Code § 541(b)(11) became effective. Such a reading of the statutory provisions would be contrary to Congress’s intent to protect stimulus payments.
Normally we expect math and science to have specific answers, but not so much with medicine and law. The answer may appear clear at one time, but then changes as new facts are known or if those with new view points get involved (like the appellate courts).
In the practice of law the answer to most questions starts with “it depends”. After that statement the lawyer goes on to ask for facts that depict that person’s unique situation. That person answers the questions, many times guessing at what the lawyer meant by certain terms or giving the answer they think the lawyer wants to hear. The lawyer then answers the question (based on what may be false “facts”), but adds “different courts may have a different answer and we cannot guess what the final answer will be”.
Moral here – NEVER GUESS AT THE ANSWER FOR ANY QUESTION ASKED BY A DOCTOR OR LAWYER.
Oh good!! So how are you supposed to make an informed decision? That is where the Rubik’s cube (pictured here) comes into play. You solve one side (all the same color), but in solving the other sides the first side is messed up. After many, many tries it is possible to solve all six sides, but meanwhile your life goes on. You have made choices based on one interpretation of the law, only to find out that the interpretation was “wrong” according to a higher court and now all your decisions are wrong. We tolerate (for the most part) this experimentation from our doctors, but assume that lawyers have the ability to predict the future. They do not. But a good lawyer explains this dilemma, so you understand that there is no guarantee in life (other than death and taxes). Be careful when trusting any doctor or lawyer who answers a complicated question with a firm, unqualified answer.
Diane is a well respected Arizona bankruptcy and foreclosure attorney. As a retired law professor, she believes in offering everyone, not just her clients, advice about bankruptcy and Arizona foreclosure laws. Diane is also a mentor to hundreds of Arizona attorneys.
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