Contrary to popular belief, you can discharge some back federal, state, and local income taxes in bankruptcy in Pennsylvania. Moreover, the penalties and interest attached to these taxes are dischargeable, although there are some differences between the bankruptcy chapters (Chapter 7, Chapter 13, etc.). Determining which back taxes are dischargeable can be a complex process. Nonetheless, it is possible to discharge significant income tax debt in bankruptcy if your tax debt fits within specific rules.
The Bankruptcy Code sets out specific periods determining if you can discharge your taxes, commonly called the 3-year, 2-year, and 240-day rules (the "3-2-240 rules"). Under these rules, you can discharge income taxes that came due three years before filing for bankruptcy as long as it has been at least two years since you filed the tax forms and 240 days since the taxes were assessed. There are some exceptions, and these rules do not apply to other types of taxes, such as property taxes. To discharge back income taxes, be aware that you must meet the requirements of all three rules.
1. The 3-Year Rule.
This rule states that to discharge your back income taxes, they must be due at least three years before filing for bankruptcy. Bankruptcy Code §507(a)(8)(A)(i). Typically, your federal and most state income taxes are due on or around April 15 each year. In most cases, it is merely a matter of adding three years to this due date to determine the earliest date you can file for bankruptcy and discharge your taxes.
However, if you get an extension of time to file, the three-year period runs from the date that the taxes are due under the extension.
2. The 2-Year Rule.
Under the 2-year rule, you must file your income tax returns at least two years before filing your bankruptcy petition. This requirement allows you to discharge your taxes even if you file your tax forms late, as long as you file the forms at least two years before filing for bankruptcy. §523(a)(1)(b)(ii).
Quick Note: Despite the precise wording of the two-year rule, there are limitations and potential limitations on a debtor's ability to discharge taxes arising from late-filed forms. See "Important Note on Late-Filed Returns" below for details.
3. The 240-Day Rule.
Taxes must have been assessed by the taxing agency at least 240 days before you file for bankruptcy under this rule or not assessed at all. In most cases, the 240-day leg of the test does not affect a debtor’s ability to discharge income tax debt because the taxes are typically assessed well before filing (usually at or around the time the tax returns were filed).
The assessment becomes an issue when the IRS assesses taxes late or assesses additional taxes, penalties, or interest well after the taxpayer files their taxes.
Amended or corrected returns and audits. If you file a corrected return or a change results from an IRS audit, the assessment date may be substantially later. §507 (a)(8)(A)(ii). Therefore, if you are in dispute with the IRS regarding how much you owe and plan to file for bankruptcy, you should tell your bankruptcy lawyer about the dispute.
Tolling. Some actions can add additional time to some or all of the 3-2-240 time requirements, including (a) making an offer in compromise, (b) having filed for bankruptcy previously, or (3) obtaining a taxpayer assistance order. §507(a)(8)(A)(i). The time periods under the 3-2-240 rules are tolled (suspended) while any of these events are pending. However, entering into a payment arrangement with the IRS or another taxing agency does not toll the periods under the 3-2-240 rules.
Quick Note: If you are in a payment arrangement with the IRS, you should stop payments upon filing for bankruptcy unless instructed by your attorney otherwise. The IRS cannot take any collection action against you while the bankruptcy's automatic stay protects you. If the payment is deducted automatically, take the necessary steps to stop it.
There are circumstances when taxes are not dischargeable, even though the debtor meets all of the requirements of 3-2-240 rules. The most important exceptions include tax evasion, fraud, the filing of substitute forms by the IRS, and possibly, forms filed late without an extension.
Tax Evasion and Fraud. The taxes involved are not dischargeable if a taxpayer willfully evades taxes or commits tax fraud. §523(a)(1)(C). However, this rule applies only in the case of deliberate tax evasion, not an honest mistake.
Substitute Tax Returns. Substitute returns, which the IRS may file when a taxpayer has not filed a return, can affect your ability to discharge taxes in bankruptcy. Whether the taxes assessed on substitute forms are dischargeable depends primarily on whether the IRS filed the forms with or without the taxpayer's permission.
Consensual Substitute Forms. A substitute form filed by the IRS with the taxpayer's consent and signature is a properly filed tax form, and any taxes arising from it are dischargeable under the 3-2-240 rules.
Nonconsensual Substitute Forms. If the IRS files a substitute tax return on your behalf without your agreement, the taxes may not be dischargeable, even if they otherwise meet the 3-2-240 rules. The IRS has taken the position that taxes assessed on a nonconsensual substitute form are not dischargeable, and several court rulings have agreed. Moreover, some courts have held that none of the taxes on tax forms filed after the IRS has filed a nonconsensual substitute form are dischargeable in bankruptcy. In other words, the taxpayer cannot make the tax debts dischargeable by submitting a tax form after the IRS filed the substitute form.
Quick Note: Do not accept a substitute form as accurate. Even if the IRS has filed a substitute form, you should still file your own return for the same tax year. Very often, substitute forms vastly overestimate taxes. I have often seen substitute forms that were incorrect by tens of thousands of dollars. Therefore, if the IRS files a substitute form, you should have it reviewed by a CPA and file your own form if necessary. You will likely save money.
Filing a tax return late is a costly mistake, whether or not you file for bankruptcy. In bankruptcy, it can be catastrophic. Unfortunately, some courts have held that a tax return filed even a day late is not a tax return under the statute allowing the discharge of tax debts in bankruptcy. In other words, if your forms were filed late without an extension in any given tax year, you cannot discharge the taxes for that year.
The courts' interpretations of the statute are tortured and run counter to the Bankruptcy Code's purpose. Hopefully, the U.S. Supreme Court will clarify this issue. However, until then, I advise clients that debts arising from late-filed forms may not be dischargeable. In the meantime, if you have unfiled tax returns, you should get them filed as soon as possible.
Quick Note: It is an open question whether debtors who filed late 2019 and 2020 returns under the Covid Relief Program are eligible to have those taxes discharged.
It is interesting to note that the IRS has taken a less stringent position, stating that taxes are dischargeable under a late filed tax return as long as the IRS has not filed a substitute for return ("SFR") and the debtor meets the requirements of the 3-2-240 rule.
Quick Note: If you know you will be filing late, get an extension. Even if you cannot pay the amount due, at least file the forms. As discussed below, you can lose your ability to discharge taxes in bankruptcy and incur unnecessary penalties if you file late without an extension.
The Importance of Filing Tax Returns on time. There is no upside to not filing or filing your tax forms late. In my Philadelphia bankruptcy practice, I sometimes see clients whose taxes would have been dischargeable if only they had filed their tax forms or filed them on time.
Many people do not file on time because they know they will owe taxes and cannot pay them. The penalties for not filing your tax forms are much worse than the penalties for paying your taxes late. Failure to file can result in loss of remedies, including the ability to discharge taxes in bankruptcy. Moreover, not filing leads to audits and can, in extreme cases, result in criminal prosecution.
If you will be filing your tax returns late, get an extension. If you have been putting off filing your taxes, now might be a good time to sit down with your tax professional and get it done.
Unfortunately, finding the due date, filing date, and assessment date is not as simple as looking at your last form. To determine if your taxes are dischargeable, you should obtain an "account transcript" (sometimes called a "literal transcript") from the IRS for each year for which you owe taxes. The account transcript will show the due date, filing date, and assessment date, which are crucial in determining whether the taxes fit within the 3-2-240 rules.
How to Order Tax Transcripts: To order a tax return transcript, see http://www.irs.gov/Individuals/Order-a-Transcript. You can order the transcript online, by phone at 1-800-908-9946, or by using IRS Form 4506T. The request will take up to two weeks to process. Note that an "account transcript" differs from a "tax return transcript." A "tax return transcript" will not have all the necessary information.
Before dealing with interest and penalties, it is vital to understand the differences in how the bankruptcy code classifies tax debt.
General Unsecured Debt. An unsecured income tax debt is not a priority debt and is not secured by a lien. Other common types of unsecured debts include unsecured credit cards, bank loans, medical debts, personal loans, etc. Although most general unsecured income tax debt is dischargeable under the 3-2-240 rules, the taxing agency will sometimes allege that debt is nondischargeable for another reason, such as a late-filed return. (See Limitations on Discharge below.)
Priority Tax Debt. Income tax debt classified as priority debt is unsecured tax debt that does not fall under the 3-2-240 rules. Other priority debts include certain government charges, child support, maintenance, etc. Priority debts are non-dischargeable in bankruptcy. However, penalties and some interest on priority tax debt may be dischargeable in Chapter 13. (See the Penalties and Interest section below.
Secured Tax Debt. The debt should be listed as secured if the income taxes are secured by a lien issued by the IRS or another taxing agency. However, the lien is limited to the value of the creditor's property. The remaining unsecured portion of the debt becomes either general unsecured debt or priority debt, depending on whether it falls under the 3-2-240 rules.
Quick Note: If you have secured tax debts, it is crucial to be accurate when listing your real and personal property in bankruptcy schedule A/B. Because tax liens are limited to the property's value in bankruptcy, placing excessive value on your property could prevent you from discharging taxes that would be otherwise dischargeable. If necessary, work with your attorney to obtain valuations or comps for more valuable personal property and consider having a realtor provide an accurate property valuation.
Interest and penalties are generally treated the same in Chapters 7 and 13. However, there are some differences concerning priority debts, which we will discuss.
Discharging penalties on back taxes. Tax penalties over three years old are dischargeable in both Chapter 7 and Chapter 13 bankruptcy unless the IRS or other taxing agency has secured the debt by filing a tax lien. (See the tax lien section below for limitations on tax liens.)
Discharging interest on back taxes. In both Chapter 7 and Chapter 13, if the taxes are dischargeable, the interest is also dischargeable.
Penalties and interest on priority tax debts in Chapter 7. In Chapter 7, penalties and interest on priority tax debts are not dischargeable.
Penalties and interest on priority tax debts in Chapter 13. All pre-petition penalties and post-petition interest are discharged in Chapter 13 if the debtor completes the Chapter 13 plan. Therefore, if you have significant penalties on priority tax debt, filing under Chapter 13 may be a better option, particularly if you cannot wait for the taxes to qualify under the 3-2-240 rules.
Penalties and interest on secured tax debts. Interest and penalties on secured tax debt are not dischargeable up to the value of the security interest in the debtor's property. (See secured tax debts above.)
Post-petition interest on secured debts. Taxing agencies may be entitled to post-petition interest on secured tax debts, which the debtor must pay as part of the plan in a Chapter 13 case.
Post-petition interest on priority tax debt. Taxing agencies may be entitled to post-petition interest on priority tax debt. Unfortunately, unless the taxing agency has a lien, you cannot add the anticipated interest to your Chapter 13 plan. Thus, in some cases, the debtor may get a bill for post-filing interest after receiving a Chapter 13 discharge, even though the underlying taxes were discharged.
Quick Note: If you receive a tax bill from the IRS or other taxing agency after your bankruptcy, contact your bankruptcy attorney. Taxing agencies often make mistakes. Any attempt to collect taxes that you no longer owe may be a violation of the discharge.
Income taxes you incur personally due to operating a business are dischargeable in bankruptcy under the 3-2-240 rules. However, different rules apply to other business-related taxes:
Payroll Trust Fund Taxes. Trust fund taxes are not dischargeable in bankruptcy. They include payroll taxes that an employer withholds from an employee's pay on behalf of the government. If you fail to withhold required taxes or withhold the taxes from an employee's check but fail to pay the withheld funds to the taxing authority, the taxes are not dischargeable.
Employer's Portion of the Payroll Tax. The employer's part of the payroll tax (the tax paid directly by the employer for Social Security and Medicare) is dischargeable in bankruptcy under rules similar to the 3-2-240 rules. The debtor must file for bankruptcy at least three years from the date the IRS 941 form was due and two years from the date the debtor filed the tax forms.
Sales Tax. Like other trust fund taxes, sales taxes are not dischargeable in bankruptcy in Pennsylvania.
Discharging income taxes in bankruptcy does not automatically remove a tax lien. You can file for bankruptcy with a tax lien, and the underlying debt will be discharged (assuming you meet the requirements of the 3-2-240 rules). However, any lien against the property you acquired before filing for bankruptcy would still stand. Fortunately, there are options for dealing with tax liens after bankruptcy.
Voluntary Release of a Post-Discharge Tax Lien. In Chapter 7 cases, the IRS will often release liens after a bankruptcy discharge when the taxes are dischargeable and there is little property to which the lien can attach. However, the debtor may need to request the release of the lien.
Settlement of a Tax Lien. The IRS usually will not release a lien after discharge when the debtor has substantial nonexempt property holdings. However, it is sometimes possible to negotiate a settlement of the lien for less than the full amount in such cases.
Payment of a Tax Lien in Chapter 13. In Chapter 13 cases, the debtor must pay the tax lien through the Chapter 13 plan as a secured debt. (The IRS will generally reduce the lien to the value of the debtor's property when it files its proof of claim.) Once the lien is paid in bankruptcy and the debtor receives a discharge, the IRS or other taxing agency will remove the lien. Again, you may have to contact the agency if it fails to act within a few months of the discharge.
Expiration of Federal Tax Liens. Most IRS tax liens expire when the 10-year period of collectability ends. IRC §6322. Therefore, sometimes it is possible to wait out a tax lien, although it would be unwise to do so without consulting an attorney. (See also Statutes of Limitations section below.)
If the taxing agency (whether the IRS, the state, or local government) tries to collect on tax debts discharged in bankruptcy or refuses to remove a tax lien that should be lifted, speak to your attorney. It may be necessary to file an action for violation of the discharge. Taxing authorities and other government entities are not exempt from laws protecting discharged debtors.
Statutes of Limitations on Collection of Income Taxes. Statutes of limitations on assessing and collecting federal, state, and local income taxes can significantly reduce taxpayer liability for back taxes. (For more on statutes of limitations in general, see my post on the Pennsylvania Statute of Limitations on debt.) Statutes of limitations bar the taxing authority from collecting old taxes or assessing new ones after a certain amount of time.
Federal Statute of Limitations On Collection of Taxes. The Statute of Limitations on the collection of federal income taxes is ten years from the date the IRS assessed the taxes. After this period, the IRS cannot collect the remaining tax debt in most cases. IRC §6502. (To find the assessment dates, get an "account transcript" as described above.) As noted above, tax liens usually expire with the ten-year statute of limitations on collection.
There is no statute of limitations if the IRS has filed suit against the taxpayer and reduced the lien to judgment. Fortunately, the IRS rarely seeks a judgment. Filing an offer in compromise, filing an appeal, signing an IRS Form 900 waiver (a voluntary extension), and some other actions can toll the Statute of Limitations and allow the IRS more time to collect.
Filing an offer in compromise, filing an appeal, signing an IRS Form 900 waiver (a voluntary extension), and some other actions can toll the Statute of Limitations and allow the IRS more time to collect.
Federal Statute of Limitations on Assessment of Taxes. There is a three-year limitation on the IRS's assessment of new taxes and penalties, which runs from the date the return was filed. IRC § 6665(a). This limitation extends to six years when the taxpayer has failed to declare a significant amount of income. IRC § 6501(e).
Pennsylvania Statute of Limitations on Tax Collection. Pennsylvania recently enacted a 10-year Statute of Limitations on the collection of state taxes. The Statute covers most state taxes, with a few exceptions. However, this ten-year limitation applies to taxes due after 2021. The state will have until 2030 to collect taxes due before 2021, regardless of the original due date.
Pennsylvania Statute of Limitations on Assessment of Taxes. Pennsylvania has a three-year limitation on assessing new taxes that runs from the original assessment date. 061 PA Code 119.14. This period could be extended to six years if the taxpayer underreported income by at least 25 percent. 061 PA Code 119.15. However, the limitation does not apply in cases involving fraud, tax evasion, or failure to file forms. 061 PA Code § 119.16. In other words, the state can assess new taxes for only three years (or six if there is significant under-reported income) but has no limit on assessing new taxes in cases of fraud, tax evasion, or failure to file.
Quick Note: Bankruptcy filings will suspend statutes of limitations on taxes for the duration of bankruptcy plus six months. Although this is not always a problem, your attorney will need to consider it, particularly if you are close to the end of the statutory collection period.
Offers in Compromise. An offer in compromise is an agreement between the debtor and the IRS to settle a tax debt for less than the full amount due. This type of settlement can result in a waiver of interest, fees, and even a portion of the underlying taxes. The IRS accepts very few offers in compromise. Nonetheless, in some cases, an offer in compromise may be the best solution. The offer-in-compromise process is complex and can be quite time-consuming. Taxpayers seeking an offer in compromise should speak to a CPA or a tax attorney.
Payment Arrangements. The IRS usually accepts a payment arrangement ("installment agreement") for back taxes unless the debtor has repeatedly failed to pay under previous agreements. Most such arrangements require a minimum monthly payment of two percent of the balance. An installment agreement will not waive penalties or prevent interest from accruing. If the debtor can only make minimum payments, such arrangements can take a long time.
Most state and local taxing agencies, including the Pennsylvania Department of Revenue and the Philadelphia Revenue Department, offer payment arrangements. However, if significant taxes are at stake, it is wise to speak to a CPA or a tax attorney before entering into any such agreement.
The rules governing the discharge of tax debts in bankruptcy proceedings can be quite complex. But that should not discourage you from considering the possibility. An experienced bankruptcy attorney can help determine if you can discharge your income tax liability and whether other options may be available. Just be sure that your bankruptcy attorney understands how to deal with taxes.
Philadelphia Bankruptcy Attorney is published by Harborstone Law LLP. Harborstone Law represents clients in debt matters in the greater Philadelphia area and throughout Pennsylvania
