Sam Brotman, JD, LLM, MBA December 16, 2013 3 min read

Discharging Taxes in Bankruptcy - Part Four

General unsecured claims and penalty claims refer to those taxes that do not receive priority tax claim status. These types of claims are not entitled to secured, administrative tax claim (Armknecht). They do not qualify for priority tax claim status because of the nature of the claims; they are, in fact, old claims.

Nonpecuniary tax penalties represent a class of unsecured claims that are subordinated to general unsecured claims. “A nonpecuniary tax penalty is one that is intended to punish rather than to compensate” (Armknecht).

In a general sense, taxes may be discharged in bankruptcy through liquidation (Chapter 7 case) or reorganization. Taxes are typically discharged under 11 U.S.C. 727; and may be discharged pursuant to Chapter 11 and Chapter 13.

Of course, there are exceptions to dischargeability[1]. Determining whether taxes are dischargeable is predicated on whether the type of tax falls under the category of priority tax claim or general unsecured claim. In addition, taxpayers that fail to file a tax return cannot seek a discharge of their tax liability. “If the taxpayer files the return late, the taxes are non-dischargeable if the return was filed less than two years prior to the filing of the bankruptcy petition” (Armknecht). If a debtor files a fraudulent return or attempts to evade taxes, the taxes, in this case, cannot be discharged. Willful attempts to evade paying taxes include activities related to concealing assets, failing to file returns, and failing to pay taxes over an extended period of time. Lastly, federal tax liens and secured taxes are not dischargeable.

Payroll and State Taxes May Not be Discharged

Payroll and state taxes are typically not discharged in bankruptcy. Wages, or disposable earnings, are typically garnished[2] by an order of the bankruptcy court. In terms of state taxes, Title III of the Consumer Credit Protection Act (CCPA) “permits a greater amount of an employee’s wages to be garnished for child support, bankruptcy, or federal or state tax payments” (DOL.gov, “Wages and Hours Worked: Wage Garnishment,” 8/16/2013).

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[1] Exceptions to dischargeability are referenced in 11 U.S.C. 523(a) and 11 U.S.C. 523(a)(1).

[2] For an in-depth discussion on wage garnishment, see this chapter’s section titled “Wages/Assets are Never Safe” for more insight.

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Sam Brotman, JD, LLM, MBA

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