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When Should I File For Bankruptcy?

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One of the most crucial questions that must be answered when considering bankruptcy is: When should you file? The answer is, as with many things in the law: it depends.

The reason this questions is so critical is because when you file a bankruptcy, everything you own, with few exceptions, passes into what is called a bankruptcy estate. The property that is included in your bankruptcy is governed by section 541 of the bankruptcy code. This code provision was drafted, and has since been interpreted by the courts, to take the most EXPANSIVE view possible as to what constitutes property of your bankruptcy estate.

Typically, your bankruptcy is made up of every interest, whether legal (on paper) or equitable (in fairness). That means: “the car isn’t in my name. . . .” doesn’t work. You have to include everything, including interest you may not intend to even assert in property, land, commissions earned but not received, and even contracts signed between two people. The bankruptcy estate can, in some instances, surprisingly include property that you obtain after filing for bankruptcy.

The chapter under which you are filing and your prospects for future earnings, projects, businesses, and even tax refunds must be considered when filing a bankruptcy.

A good bankruptcy attorney should be able to answer the timing question after gathering some facts about your situation. Here at Rogers & Russell, we can usually answer this question during the initial FREE consultation. If you meet with a bankruptcy attorney that can’t answer this question, definitively run the other way.

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Will the IRS Settle My Tax Debt?

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The IRS does have a program whereby you can settle (or “Compromise” as the IRS calls it) your tax debt.

We all dread paying our taxes, right? To offset the burden we face each April, we rely on our employers, or ourselves if self-employed, to withhold or make estimated payments throughout the year in hopes that we don’t owe once that tax return is filed. Even better, for those of who over withhold or qualify for certain credits, a refund from the government is to be expected. However, life doesn’t always provide an easy way to pay our taxes. We may need to pay less throughout the year so that we can cover our immediate needs, and when April rolls around the money just isn’t there to pay over. Or our business is fighting to stay afloat during hard times, making it seem impossible to pay taxes when expected. Believe it or not, the IRS does have a heart, and there are options available to just about everyone who needs a way out.

One of these options, and the one most people are looking for, is the IRS’s Offer in Compromise. You’ve probably heard the commercials or seen the ads online informing the public of the IRS’s “Fresh Start Program” wherein the IRS will settle for pennies on the dollar. What those ads are referring to is the Offer in Compromise. The Offer in Compromise is a settlement offer made by the taxpayer to the IRS offering to pay a lesser amount than owed. If the IRS accepts the taxpayer’s offer, the balance of the taxpayer’s debt is wiped out, and the taxpayer gets a fresh start.

An Offer in Compromise doesn’t work for everybody though, and you should be skeptical of anyone who tries to tell you otherwise. A thorough analysis of your monthly income and expenses as well as your assets is necessary to determine what can be compromised. Each household is different, and each geographical location comes with its own set of standards. It’s important to carefully provide the IRS with all the data it needs to make an informed decision. Informal offers containing estimates and inaccuracies will not be accepted.

I’ve been able to work with the IRS on Offers in Compromise going on 7 years now. I started by working in a tax clinic during law school and ended up at a law firm where I almost exclusively dealt with the IRS on a daily basis. I’ve been able to settle millions of dollars in tax debt for clients. This is no exaggeration; the IRS, when it is provided a good offer and all the information is valid, will often show its compassionate side and forgive tax debt that cannot realistically be paid. I can usually spot a candidate that I think will be successful during a free consultation. In fact, I usually won’t even submit an offer for a client unless I am pretty sure that it will be accepted. Why pay for something that will most likely fail?

The Offer in Compromise is a great tool for dealing for overcoming crushing tax debt. But it won’t work for everyone. However, there are a number of other options for those who won’t qualify for an offer.

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How can I protect my assets from future creditors?

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Imagine this: You’ve been working for 30+ years. Your house is almost paid off and retirement is on the horizon. All of a sudden you blink and… BAM! All of your assets are gone. Sounds like something out of a nightmare, right? Asset protection isn’t just for doctors, corporate executives, or others who work in high liability professions. Anyone with assets is at risk of losing them. Your assets may be in danger if you file for bankruptcy, get a divorce, or are the defendant in a civil lawsuit. Although these events are often unpredictable and unforeseeable, a little bit of planning can go a long way. Here are three different ways that you can protect your assets from future creditors:

  1. Utah Asset Protection Trust

Utah’s Asset Protection Trusts are some of the most effective in the country. A Utah Asset Protection Trust is an irrevocable trust where you are both a co-trustee (which means that you can manage the trust and make decisions) and a beneficiary (which means that you can still use the assets). As long as the trust requirements are satisfied, your assets will be protected from any future creditors.

A Utah Asset Protection Trust might be right for you if:

A Utah Asset Protection Trust might be right for you If you’re a Utah resident who works in a high liability profession (think: doctors, dentists, lawyers, engineers, etc.), if you’re a Utah resident with high net worth, or you’re a Utah resident who just want to make sure that your assets are totally secured. (Seriously, the Utah Asset Protection Trust is great for just about anyone.)

What an Asset Protection Trust can’t do:

An Asset Protection Trust can only protect your assets from future creditors, it can’t protect you against the creditors that are already knocking at your door. If you’re wondering how you can find relief from current creditors and keep your assets, you can speak with one of our bankruptcy attorneys at 801-899-6064.

  1. Personal liability insurance

What if your normally friendly poodle bites the babysitter? What if your elderly neighbor slips while going up your front steps? You can’t prevent these types of accidents, but you can mitigate the risk. Personal liability insurance protects you if you injure someone else or damage someone else’s property. This type of insurance is also known as “third party insurance” because it’s there to cover you if someone filed a lawsuit against you.

Personal liability insurance might be right for you if:

Personal liability insurance would work for a W2 employee who wants to protect against daily injuries.

What personal liability insurance can’t do:

Personal liability insurance can’t protect you in the event of a bankruptcy or a divorce. Personal liability insurance also won’t protect you if work in a high liability profession and you are sued during the course of your job.

  1. Divide the assets between the husband and the wife

Let’s say that you’re a doctor but your spouse is a stay-at-home parent. You’re more likely to be sued because of your profession, but your spouse isn’t. For this type of asset protection planning, you divide up the assets between the “safe” spouse and the “risky” spouse. Under this type of plan, you might keep your junky 2004 Mercury Mystique titled in your name (remember, you’re the risky doctor) and you title your house and your much nicer 2016 Honda Odyssey in your spouse’s name.

Dividing up the assets might be right for you if:

You’re married. Between you and your partner, you have a “safe spouse” who probably won’t be sued and a “risky spouse” who might be sued because of their profession. You’re terribly in love and can’t foresee a divorce in the near future. You’re also willing to take a little bit of a risk (remember, your elderly neighbor could still slip on your front porch and sue your stay at home spouse). You don’t foresee a circumstance where you both would have to file for bankruptcy.

What dividing up the assets can’t do:

Dividing up the assets can’t protect you in event of a divorce and it can’t protect you in circumstances where your “safe spouse” could be liable (think: elderly neighbor slips on your front porch or Poodle bites the babysitter). While dividing up assets might be beneficial if one spouse has to file for bankruptcy, it can’t protect you both need to file.

To learn more about asset protection or how you can keep your assets while going through bankruptcy, give us a call at (801)-899-6064. This blog post does not constitute legal advice, please consult with your attorney before beginning an asset protection plan.

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Will I lose My House or Car in a Bankruptcy?

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When you file for a bankruptcy, the ownership of almost everything you own passes from you to a bankruptcy estate that is managed by a court appointed trustee. Yes, everything includes your clothes, your TV, and even your toothbrush. So does filing for bankruptcy look like the scene from The Grinch Who Stole Christmas where the Grinch dresses up like Santa and takes everything— even the cat? The short answer? No.

The reason you don’t lose what you own is because each state  and the federal government have passed laws that exempt certain property from the bankruptcy estate.

Exemptions

In a bankruptcy proceeding, if something qualifies under an applicable exemption, then you get to keep that thing. The federal government has created a model list of exemptions and each state has decided whether it wants to adopt the federal rules or create its own exemption rules.

Utah has decided not to follow the federal rules and has chosen to create its own rules regarding what you are allowed to exempt. However, all states have exemptions that let you keep property so you can get a fresh start. Utah, for example, allows you to protect $42,300.00 in equity in your home (as of 2020). If there multiple owners on the property you can protect up to $84,600.00 of equity in your home (as of 2020). Even if you have more equity than you can protect, there are options in bankruptcy where you get to keep all your assets, your home and car included. I discuss this below.

Which Exemptions apply?

The determination of which law governs your exemptions starts with a fairly simple question: where have you lived for the past 2 years? If you have lived in one state, that state’s law determines the exemption law that applies to you. If the answer to the 2-year question is not a single state, there are some complicated timing rules that kick in and it is best to discuss these with a knowledgeable attorney.

 

Does a Trustee or someone come to my home to take a look at my stuff?

The idea of everything passing into a legal entity controled by another person (the trustee) sound daunting and maybe even dangerous. However, if you are open and honest in your paperwork and you have an attorney with a good reputation, trustee’s rarely make house calls. You simply fill out your paperwork and disclose those assets to the court and your creditors. Again, if your are honest in those filings you’ll have nothing to worry about.

 

What about Non-exempt property?

As home prices soar again many people have equity in their homes. This means that sometimes you have more equity than you can protect. If you think this is the case you need to speak to a knowledgeable attorney (like the ones at Rogers & Russell). There are still options to keep the unprotected asset through a bankruptcy.

Long story short, the attorneys here at Rogers & Russell can help you protect what is yours and help you eliminate debt that is weighing you down. Call us today to set up a free consultation.

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IRS Letters, What’s the Deal?

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The IRS loves its letters; it’s the primary source of communication for the dreaded national bill collector. Getting any notice in the mail from the IRS usually ties our stomach into knots even before we’ve opened the envelope. Each notice has a different purpose and carries with it its own level of urgency. The Notice of Deficiency (CP3219A) and its predecessor, the CP2000, are two of the least cherished pieces of paper the IRS might send your way. The reason why: it usually means you’re going to owe some money.

Duplicative, Maybe, but don’t ignore!

The reason for these two letters is one in the same: the IRS has been provided information that does not match up with your filed tax return. Consequently, the IRS will send you these notices proposing change(s) to your return, usually resulting in additional taxes being owed, and giving you a chance to respond to the proposal. It is not an official audit. You can agree or disagree. If you do agree, just sign the form and send it back. However, if you disagree you must take advantage of every available option to reconcile the discrepancy. Start by calling the IRS to try to clarify the issue and offer additional information that might help resolve the problem. If that isn’t enough, follow the instructions in the notice and mail or fax a signed statement to the IRS with evidence explaining the reason you disagree with the proposed changes. This needs to be done before the deadline stated in the notice. The IRS will respond to you with its own letter and give you a chance to compare records. Be careful though, the IRS may not agree with what you have to say, and you will not be given an extension of time to file a Tax Court petition while the matter is pending.

You can fight the IRS, but you have limited time to do so

If you don’t have any luck working directly with the IRS and feel compelled to file a Tax Court petition, just remember that a late petition will not be considered by the Tax Court. And if you’re going to file a petition, make sure you have all your records in order and are confident that the IRS’s position is inaccurate. There are a lot of reasons why your challenge could be successful, like bad information was sent to the IRS, you forgot to report something but you have additional information that renders the proposed change ineffectual, or you were a victim of identity theft that resulted in faulty reporting. Not wanting to pay the IRS is NOT a good reason to file a tax court petition; you’ll waste a lot of time and money fighting and will still end up paying the IRS what it said you owed to begin with – just with more interest that had compiled all that time.

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