I applaud attorneys who make sound information about bankruptcy available to the public. My only requirement is that their information be true.
The truth is income taxes are dischargeable in bankruptcy if 3 reasonably simple conditions are met; debts to the government are generally dischargeable in bankruptcy.
Please reread that line, and get that bit of law in your head.
Because you wouldn’t know the truth of the statement above from reading the blog of this lawyer (who puts himself forward as an expert on bankruptcy law) whose opening line is utterly and absolutely wrong on the law.
Is Vincent Howard of Orange County really giving this information out to his clients? I surely hope not.
We routinely tell our clients, he assures us, “that tax debts are not dischargeable in bankruptcy. The public policy goal of this rule is clear: bankruptcy must not allow debtors to escape debts to the government…”
The Simple Truth About Discharging Taxes In Bankruptcy
The Bankruptcy Code starts from the proposition that all unsecured debts are dischargeable, and calls out the exceptions in Section 523.
A bit oversimplified, the rule is this: income taxes can be wiped out in bankruptcy if the return was due without penalty more than three years before the bankruptcy case is filed; if the return was filed late, it has been on file for two years; and the taxes in question were assessed more than 240 days before the bankruptcy was filed.
So, the correct statement of the law is that some income taxes cannot be discharged; other, older income taxes can be discharged.
Discharge Of Debts To The Government
Despite what the Howard Law Firm says, debts to the government are generally dischargeable. Debts for overpayment by the Social Security Administration can be discharged; SBA loans, guaranteed by the government are dischargeable. Again, nondischargeability is the exception, not the rule.
Just Because The Website Says So, Doesn’t Make It True
Perhaps the democratization of publishing that came with the internet and blogging software was a mixed blessing. For every genuine contribution to the public’s understanding of bankruptcy law, there’s some lawyer writing about bankruptcy to get his name before his community, without regard to the accuracy of the information he puts out. And if he genuinely believes the law is as his blog states, then he stands to harm his clients.
As lawyers, we have a duty to the public to get this stuff right. The public is injured when someone who has the credentials that suggest he is a reliable source spreads inaccuracies.
Bankruptcy law is complicated, sometimes uncertain, and these days, evolving as the courts interpret the mess that is “bankruptcy reform”. But the law about the dischargeability of taxes hasn’t changed markedly in more than three decades.
If you are a consumer or small businessperson trying to get your arms around what bankruptcy offers, read on here. Test propositions about the law across several sites. Buy an hour of an experienced bankruptcy lawyer’s time and double check what your internet research has turned up.
The world of bankruptcy information on the internet is a jungle.
Gary Ray Fraley Esq. says
Cathy, I agree with you, this advice about tax dischargeability is bad. However, what is worse is this guy is offering loan modification services. In fact he calls himself as the Orange County Loan Modification Attorney. Guess what? He accepts MasterCard and Visa for his services. Wow. Isn’t that nice!! Maybe he should stop and read the law before he gets disbarred.
Cathy Moran says
You’re absolutely right. In the loan modification scenario, he might get a good result for the client. Hard to imagine a good result in a bankruptcy case when he has the law wrong.
Bankruptcy Attorney David Nelson says
I really appreciate a clear concise statement of the law on the web. Guys like Vincent Howard make us all look bad.
I just wanted to add my comment for two reasons, first if you are contemplating getting rid of old income taxes in bankruptcy, you must have in fact filed the tax return yourself.
If the IRS or other taxing authority filed it for you, that’s not you filing it and it won’t be discharged. If you didn’t file a year and that year got audited and you signed the audit, that’s not you filing that year. In those two situations, your tax liability will not be discharged.
You’d better get Tax Transcripts for the years that you owe and find out if you filed or if something else happened.
Second, if it turns out that you didn’t file a particular year that you want to discharge, then you would have to file the tax returns yourself and wait 2 years to file your case.
Send it with a return receipt or signature confirmation so that you can prove when they had it and in 2 years get another tax transcript and see what day they record it as having arrived in their hands.
Cathy Moran says
Good advice. I wrote another piece on taxes in the ABC’s of Bankruptcy: I is for IRS.
Barry Greenberg says
Per their website, “The Firm represents near-bankrupt consumers in settling debts with unsecured creditors. In order to operate efficiently and in a cost effective manner so as to service the maximum number of consumers at a discounted rate for the consumer, The Firm uses the outside services of Morgan Drexen, Inc. to provide administrative, IT, marketing, paralegal, and paraprofessional support services to The Firm in its representation. The employees of Morgan Drexen, Inc. are not attorneys nor do they practice law. Morgan Drexen, Inc. employees assist the attorneys of The Firm in its debt settlement practice by doing the following:
managing all initial client intake,
ascertaining potential clients’ hardships (the threshold requirement for debt settlement services),
verifying suitability for debt settlement services (available cash-flow from an income-stream, for example),
determining each client’s sustainable budget, obtaining paperwork to process enrolled debts,
conferring with third party creditors on your behalf, docketing court filings and events, organizing, indexing, retrieving, and automatically alerting attorneys of The Firm to court events.”
What does the firm do?
Cathy Moran says
Maybe their time is fully taken up misrepresenting the law?
Barry Greenberg says
PS: Mr. Howard’s firm is at the same address as Morgan Drexen.
JoAnna Jensen says
More and more attorneys as well as realtors are doing loan modifications but do not know the guidelines nor do they keep up with possible consumer violations that may have been done in the foreclosure initiation.
It is important that the attorney perform a loan modification and make sure:
1) no violations were done in the initiation of the loan.
2) no violations were done in the notice of default.
3) The balance claimed owing and due is correct.
Simply doing a loan mod and adding illegal fees or not noticing violations is not in the homeowners benefit…
Cathy Moran says
And then there’s the state law that says you can’t charge for modification work until the modification is granted. Homeowners should not overlook HUD certified housing counselors.
To Vincent Howard: Confirm your information first and make sure it’s correct before publishing or posting to avoid embarrassing situations later.