IRS – Bankruptcy Chapter 13

By Steven A. Leahy

There are six things you can do if you owe the IRS money. First, you can simply write the IRS a check for the full amount. For many, that is simply not a realistic option. Often, if the tax obligation is not too significant, borrowing money from another source (friends, family, bank loan, credit cards, etc.) may be a less costly alternative than an installment agreement with the IRS. Second, you can enter into an Installment Agreement; pay the IRS over time. Third, you can obtain an Offer-in-Compromise: A lump sum settlement for less than the tax owed. Fourth, you can be declared Currently Not Collectible; pay the IRS nothing (for a period of time). Fifth, you can file for protection under the bankruptcy code. And the last option – you can do nothing, and let the IRS do what they will to you, your family and your assets.

This article addresses the fifth option – Bankruptcy. The Bankruptcy Code is found in United States Code: Title 11. Think of the Bankruptcy Code as a book, and like other books, it is divided into chapters. That’s why you hear so much about Chapter 7, Chapter 9, Chapter 11, Chapter 12, Chapter 13, or Chapter 15. Each chapter has a different remedy for a different situation. Chapter 7 is titled “Liquidation,” Chapter 9 “Adjustment of Debts of a Municipality,” Chapter 11 “Reorganization,” Chapter 12 “Adjustment of Debts of a Family Farmer or Fisherman with Regular Annual Income,” Chapter 13 “Adjustment of Debts of an Individual with Regular Income,” and Chapter 15 “Ancillary and Other Cross-Border Cases.” Generally, individual taxpayers rely on Chapter 7, Chapter 11 or Chapter 13.

This article will focus on the second kind of bankruptcy available for individual taxpayers, IRS Bankruptcy Chapter 13 “Adjustment of Debts of an Individual with Regular Income.” People who file bankruptcy are referred to as “Debtors.”

Chapter 7 is not available to some Debtors. If a Debtors’ monthly gross income is greater than the average income of the average family of the same size, it is presumed abusive to allow a Chapter 7 discharge to Debtors. Many over the mean debtors can overcome the presumption of abuse. But others cannot, making Chapter 7 discharge of their debts unavailable. Chapter 13 and Chapter 11 are available to over the mean Debtors.

Under Chapter 13 the debtor proposes a plan to repay creditors over a period of time – up to 60 months. Generally, Chapter 13 is used by people who are behind in some payments and are trying to protect their assets – a home, a car, etc. Chapter 13 allows debtors to repay arrears over a period of time.

For example, a family may find themselves several months behind on their mortgage payments, due to a temporary job lay-off. Once the lay-off is over, the debtor can return to paying their regular monthly mortgage payments. But, because they are behind in payments, the mortgage company will not accept regular monthly payments unless the family can bring their mortgage account current. Chapter 13 will allow that family to pay the arrears over 60 months and require the mortgage company to accept the regular monthly payments while they are in Chapter 13. In this way the family can avoid foreclosure of their home.

But Chapter 13 can also be used to stop IRS collection actions against a taxpayer – even if the underlying tax is not dischargeable. If the IRS has placed a wage garnishment against a taxpayer – and missing a pay check will have dire consequences (e.g. eviction) – the best option may include filing Chapter 13 to stop the wage garnishment. Under Chapter 13 the taxpayer can set up a payment plan for the portion of the IRS debt that is not dischargeable and discharging some, or all, of the dischargeable tax debt.

Tax issues in bankruptcy are complicated. This is just a general overview. If you owe the IRS and are unable to pay the full tax obligation immediately, bankruptcy may be your best option. Never hire a firm to help you with your IRS problem unless the firm is experienced in helping taxpayers use the bankruptcy code to protect them from the IRS. Before you do anything, you should give me a call. We can discuss your all your options. Opem Tax Resolutions & The Law Office of Steven A. Leahy, PC (312) 664-6649. Call NOW to set up your FREE Consultation.

IRS Offer In Compromise

By Steven A. Leahy

There are six things you can do if you owe the IRS money. First, you can simply write the IRS a check for the full amount. For many, that is simply not a realistic option. Often, if the tax obligation is not too significant, borrowing money from another source (friends, family, bank loan, credit cards, etc.) may be a less costly alternative than an installment agreement with the IRS. Second, you can enter into an Installment Agreement; pay the IRS over time. Third, you can obtain an Offer-in-Compromise: A lump sum settlement for less than the tax owed. Fourth, you can be declared Currently Not Collectible; pay the IRS nothing (for a period of time). Fifth, you can file for protection under the bankruptcy code; Chapter 7, Chapter 13 or Chapter 11. And the last option – you can do nothing, and let the IRS do what they will to you, your family and your assets.

This article addresses the third option – IRS Offer in Compromise (OIC). An OIC permits a taxpayer to settle their tax debt for less than the full amount owed. The good news is, in May 2012 the IRS revamped the process with its “Fresh Start” initiative, making it easier for taxpayers to take advantage of an OIC.

The first requirement for an IRS Offer In Compromise, as in all IRS payment programs, is compliance. The taxpayer must have filed all tax returns, made all required estimated tax payments for the current year and made all required federal tax deposits for the current quarter if the taxpayer is a business owner with employees. The taxpayer must remain in compliance during consideration and, should the OIC be accepted, after approval.

There are three grounds the IRS may use to accept an OIC: Doubt to liability (a genuine dispute as to the existence or amount of the correct tax debt under the law), Doubt to collection (taxpayer’s assets and income are less than the full amount of the tax liability), and effective tax administration (payment of the IRS liability would create an economic hardship or would be unfair and inequitable because of exceptional circumstances). Most OICs are granted as to doubt to collection. An OIC can be paid in two different ways – Lump Sum (paid in 5 or fewer installments) or a Periodic Payment offer (paid in 6 to 24 installments).

A successful OIC must offer an amount equal to, or greater than, what the IRS determines is a reasonable collection potential. The reasonable collection potential is the amount the IRS determines the taxpayer has the ability to pay. The IRS will evaluate the taxpayer’s ability to pay, income, expenses, and equity in assets to make that determination. How that information is presented may be the deciding factor.

Before the Fresh Start Initiative, the IRS calculated the reasonable collection potential by looking at the taxpayer’s disposable income – actual income less “allowable expenses” (not the taxpayer’s actual expenses) multiplied by 60 (number of months for 5 years), plus “net realizable equity” of the taxpayer’s assets. For example, a taxpayer with a monthly income of $5000.00 and allowable expenses of $3000.00, with zero assets, may get an OIC approved for $120,000.00 (60 x $2000.00) – no matter what they owed the IRS. Not really an attractive option.

Under the Fresh Start Initiative, the IRS has allowed more flexibility in “allowable expenses” and the multiple has been reduced from 60 to 12 (if the OIC will be paid in a Lump Sum) or 24 (if the OIC will be paid in a Periodic Period). Let’s assume the new flexibility reduces our example’s disposable income to $1000.00 – the new OIC that may be accepted would be $12,000.00 if paid in a Lump Sum or $24,000.00 if paid in a Periodic Plan. Quite a contrast from the pre-initiative number of $120,000.00!

So, if you owe the IRS and are unable to pay the full tax obligation immediately, you may be eligible to pay the IRS less, much less, than you owe. Before you do anything, you should give me a call. We can discuss your all your options. Opem Tax Resolutions & The Law Office of Steven A. Leahy, PC (312) 664-6649. Call NOW to set up your FREE Consultation.