Short answer . . . it depends. (skip to the end for a summary on when to file)
I never counsel anyone to represent themselves pro se in a bankruptcy. The reason is this: it is very easy to lose more money representing yourself than it would be to hire a bankruptcy attorney.
The trustee assigned to your case has one goal which is to collect and liquidate as much non-exempt property as possible to return as much funds as possible to the creditors. The trustee also has an incentive to go after assets because he keeps a small portion of what he collects.
In almost every case the trustee can easily find some property that is not exempt. Typically those who file bankruptcy have less than $100 in their bank account. Why? Because money in a bank account is not exempt and the trustee could take all of this money if he chooses to. That being said, most of the time the trustee does not go after this money because it is not worth his time to file a motion to sell or liquidate property that will earn him a few dollars. Trustees call these types of assets “administratively burdensome” and do not pursue this property.
So what does all of this have to do with taxes? The trustee likes to collect more money without having to spend much time. Because of this all trustees goes after the low hanging fruit: tax refunds.
Bankruptcy attorneys know that the tax refund is not exempt and so they do not fight these types of motions. Bankruptcy attorneys will fight the trustee on how exemptions are applied. But for tax returns, there is no fighting. It is relatively easy for the trustee to collect a tax refund.
For many people who file bankruptcy, their tax refund is the single biggest windfall they will receive that year. The trustee knows this and will almost always go after your tax refund.
So how do you keep the trustee from collecting your tax refund? That depends on which month of the year you file. If you are one of the first people to file your tax return and get your tax refund in February then you can spend all of your tax refund and then file for bankruptcy. As long as you spent this money on non-exempt property (typically food, gas, necessities) then there is nothing the trustee can collect. If, however, you filed bankruptcy before you received and spent your tax refund then the trustee will require that you turn over the entire amount.
After about the month of May, most people have received their tax refund and the trustees stop pursuing the tax refund for that year. Depending on the trustee, around the end of June to the first part of August the trustee will start directing that you handover a pro rata share of your next year’s tax refund. Let me give you an example of how this works.
Let’s say you file a bankruptcy on July 1, 2015 and your 2015 tax refund will be $2,000. The trustee will ask that you handover your 2015 tax refund that you will get in early 2016. The trustee will then take a share that is equal to six months of the twelve total months of the year 2015, which will be 50% of the $2,000 which is $1,000. The reason is that all of the tax refund you are building up to the date of filing for bankruptcy is part of the bankruptcy estate. All tax refunds accruing after the date of filing is not part of the bankruptcy estate.
So let’s use another example. If you file on August 1, 2015 and your tax refund will be $2,000. This time the trustee will keep seven months of the total twelve months of 2015, which is $1,166.66.
If you file on September 1, 2015 and your tax refund will be $2,000 then the trustee will keep eight months of the total twelve months of 2015 (which is two thirds). That means the trustee will keep $1,333.33.
The later in the year you file, the greater the amount the trustee will be able to keep of your tax refund. Because of this, many of the people who file later in the year do not have a very sizeable tax refund if they have one at all. This also means that there are more bankruptcies filed in the months of February, March, and April. Debtors can receive their refund, spend it, and then file for bankruptcy without losing any of their tax refund.
Here are my basic guidelines for each month of the year.
January to April. Make sure you receive and spend your tax refund before you file for bankruptcy. The trustee cannot collect a refund if you have spent your refund (on exempt property).
May to June. Again, make sure you receive and spend your tax refund before you file for bankruptcy. Most trustees don’t start asking for the following years tax refunds until the end of June.
July to December. The trustee will take a proportional share of your tax refund. If your tax refund is large and you absolutely must file a bankruptcy then it is best to file sooner rather than later. If you aren’t getting much of a tax refund, or none at all, then it won’t matter when you file. If you are getting a large tax refund then it might, depending on your particular situation, make sense to wait until the next year to file for bankruptcy.
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