There are certain very special debts that bankruptcy never discharges, such as child and spousal support, referred to as “domestic support obligation.” See 11 U.S.C. sections 523(a)(5) and 101(14A).
Income taxes are different. Income taxes CAN be discharged, as long as you meet a few conditions. These conditions mostly tie in to timing, when the tax was due and when (and whether) you filed the tax return in question.
The Two Timing Conditions to Discharge Income Tax
For most people, meeting these conditions is straightforward. You essentially have to file your tax returns and wait long enough to comply with for the following two conditions:
1. You submitted the pertinent tax return to the IRS/state and did so more than 2 years before filing your bankruptcy case. 11 U.S.C. section 523(a)(1)(B)(ii).
2. The legal due date for that tax return was more than 3 years before filing your bankruptcy case. 11 U.S.C. section 507(a)(8).
For example, assume you owe the IRS $5,000 for the 2015 tax year, and you submitted the 2015 tax return a full year late, in April 2017. It’s been more than 2 years since April 2017, so you meet the first condition. The legal due date for that tax return was in October 2016, if you requested an extension, which is more than 3 years ago. So you also meet the second condition. So in most situations, bankruptcy would write off that 2015 income tax debt of $5,000.
A Few Important Twists about the Timing
Keep three practical considerations in mind about these two time periods:
1. The 3-year period only starts to run when the tax return was “last due, including extensions.” 11 U.S.C. section 523(a)(1)(B)(ii). The 3 years only begins at the extended due date. It is absolutely crucial that I get the correct information from you about whether you got an extension that year.
2. The precise tax return due date can be crucial. Remember that taxes are not always due exactly on April 15 or October 15, with extensions. Weekends and holidays can push the due date out several days. That means you may have to wait some extra days to file your bankruptcy case to be able to write off that tax debt.
3. Careful about making a mistake about whether and when you actually submitted your tax return. You must find out directly from the IRS/state to avoid getting a rude surprise after filing your bankruptcy case. Obtaining a tax transcript is a crucial part of the process.
Other Uncommon Conditions
There are two other conditions that might possibly apply, in more complicated situations.
1. More than 240 days must pass from when the IRS/state assessed the income tax to when filing your bankruptcy case. An assessment usually happens shortly after you get your tax returns in to the IRS/state. Usually this condition is easily met. It only tends to apply if assessment gets delayed with a tax audit, litigation in Tax Court, a tax appeal, offer in compromise, and other complications.
2. Regardless of all these timing rules, you can never write off an income tax based on a fraudulent tax return or if you intentionally evade a tax.
In most situations you can write off the tax if you filed your pertinent tax return and both the 2-year and 3-year periods have passed. But the intersection between bankruptcy and income taxes is definitely complicated. Be sure to see a competent Sacramento bankruptcy lawyer if you owe taxes so that you get the full benefit of the law.