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Lots of my clients lately are asking the same question:  why has my mortgage payment increased so much?

Interest rates are creeping up on variable rate loans, but not dramatically.

For most of those asking, it’s because the interest-only period of their home loan has run.

Borrowers forgot that lots of loans were written 10 years ago that promised low initial payments of interest only.

While it wasn’t a free ride,  it was cheaper than a fully amortized, 30 year loan.

Appealing, and the interest-only feature probably allowed borrowers to believe that they could afford the house they were buying.

But, time’s up on many of these loans.

And math tells us that when 10 years have passed and the remaining life of the loan is 20 years, it will take larger monthly payments to retire the amount borrowed.

Understanding your loan

The easiest way to see if the loan terms explains the payment increase is to pull out the promissory note.

Many of these notes have some description of unusual terms on the first page of the note, right under the heading “NOTE”.

It may say explicitly, “10 year interest only” or “interest fixed” or “variable interest”.  All of those are among the products peddled before the Great Recession.

The note should tell you when the “change date” on the loan is, and if variable, what index is used as a base for the interest rate calculation.

If you can’t find your note, you can ask the servicer for a copy using a Request for Information under RESPA.  Here’s a how-to for making a request.

Alternatively, you can ask your questions about loan terms directly from the servicer, again, using a Request for Information.

There’s no charge to make such a request, but the timeline for getting an answer can be as much as 30 business days.

If you can’t make the increased payment

If the increased payment is unmanageable, consider seeking a loan modification from the existing lender.

An alternative is to see what your options are to refinance the loan with a new lender, a new loan, and another 30 years to pay.

Be proactive.  The further behind you get on the existing loan, the less attractive you are as a borrower on a new loan.

The post Explaining The Increase In Monthly Mortgage Payments On Long Established Loans appeared first on Northern California Bankruptcy Lawyer.

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Pay off debt first or start saving now?

It’s a debate almost as convoluted as which came first, the chicken or the egg?

Experts heatedly take opposite sides.

You get rid of debt faster if you put all available cash into paying off balances.


You have no reserves for the unexpected if you spend everything that comes in.

After much thought, and triggered by new research, I’ve got my answer.

Start saving now.

I am convinced habits are more powerful than arithmetic.

Pay debts first is cheaper

In a world where your savings earn 1 or 2% annual interest, while credit cards cost 15-25%, it’s clear your net worth benefits from paying debt first.

The biggest bang for your buck, dollars and sense wise, comes from paying off debt.

Unless, of course, you have an unexpected expense and find yourself without funds to pay.  Then, short term borrowing is usually on even worse terms than credit cards.

But, hang arithmetic, I say.

Your balance sheet isn’t everything.

Habits drive the bus

Get the savings habit.  Even when you’re in debt.

Put a bit of your income aside every paycheck.

Dictionary.com says a habit is an acquired behavior pattern regularly followed until it has become almost involuntary:

Habits control as much as 40% of our daily activities.

Most of us have a bad habit on the subject of savings:  we label saving as something we can put off til later.


  • When there are fewer demands on our money.
  • When our income has increased.
  • When the kids are grown
  • When the house paid off.

Whatever it it, we’ve created a habit of thinking that savings can wait til later.  That saving will be easy at some future time, whereas it’s hard now.

Only for most of us, no matter what life benchmark we’ve passed, savings never looks easy.  Or immediately rewarding.

So, it’s not easy.  It’s just essential.

Essential for a stable financial life.

Start small building savings habit

You don’t have to jump head first into the gold standard set-aside of 10-20% of your income.

If you’ve got debts from your past, it’s probably not really feasible.

Start small.  Save $30 bucks a month this month.

Save $35 next month. And so on.

Pay down your debts, but cultivate that saving habit.

Don’t allow yourself to think that saving is discretionary.

Yes, saving while you’re paying interest on old debts slows your climb out of debt.

But the savings habit gets stronger.

As your debt shrinks, your rate of savings can increase.

Along with your peace of mind.

That’s where I come down on which comes first: paying off debt or savings.

It’s not one or the other.


Smoke, mirrors, and budgets

Update your money software

The most powerful debt management tool: not what you think

The post Pay Down Debt Or Save? Which Should Come First appeared first on Northern California Bankruptcy Lawyer.

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I can share a secret, just between us.

Bankruptcy “reform” in 2005 tried in a number of ways to discredit and gag lawyers from helping debtors.

One of those additions to the Bankruptcy Code prohibits lawyers from advising those filing bankruptcy from incurring new debt.  The statute makes no distinction about the kind of debt involved or the purpose served by the loan.

Lawyers are not to advise incurring new debt.

But I’m not your lawyer, so I can tell you what you need to know about cars.  Or really about car loans, since I know nothing about cars beyond that.

Cars and the means test

Car loans are the most frequently found secured debt.  And secured debts on cars are deductible on the means test introduced by bankruptcy “reform”.

The IRS standards, on which the means test is based, allowed a debtor deduct a certain amount per month to acquire a car.  Courts were split on whether you had to have a car payment to get the ownership allowance.

Then the Supreme Court in Ransom said  the debtor with a paid for car gets no ownership deduction.  But if you have some remaining payments on a car loan, you get to claim the full car ownership deduction  of $517 here in California on the means test.

More deductions on the means test, more likely you qualify for Chapter 7, or for a very cheap Chapter 13.

The means test also has a provision for the expenses of operating a car:  gas, insurance, registration and maintenance.

Until this year, the debtor with a car with no loan but lots of miles could claim an extra $200/month for the expense of maintaining an older car.

That older car operation allowance was not found in the bankruptcy statute but in the  IRS Manual.  Since many of the standard expense allowances were based on IRS standards, courts often used the manual’s allowance for the extra maintenance of an old car to increase the debtor’s vehicle operation allowance.

IRS manual not part of bankruptcy law

The $200/month clunker adder the the operation deduction was disallowed by the 9th Circuit BAP in April 2014.  The three judge panel held that bankruptcy law does not incorporate all of the provisions of the IRS Manual, just because it uses some part of the IRS standards.

That, I suppose, is the good news.  Some bankruptcy courts have been willing to swallow great hunks of the manual just because Congress used the collection standards in crafting the means test, usually to the debtor’s disadvantage.

The bad news for those needing bankruptcy relief is that you are expected to keep an old car running for no more than it takes to keep a new car running.  Which causes you to ask what planet do Congressmen live on, but that’s another story.

The $200 clunker allowance is now seen, at least in the 9th Circuit, as money that you should be paying  your creditors.


Get new wheels

Meet with a bankruptcy lawyer and that lawyer may not be bold enought to say what I can:    Get a replacement car BEFORE you file bankruptcy.

Go incur some debt to get reliable transportation.

If your income is above the median for families in your state, you need to pass the means test to file Chapter 7. The monthly payment on a new car is deductible on the means test.

If your car is older, it may not last the five year duration of a Chapter 13.  If you had to replace your current car during the Chapter 13, the terms are not usually advantageous.  But my clients have had good success in financing a replacement car before they file bankruptcy.

If  a car is new, or newer than what you currently drive, there’s a better chance you can actually operate it on the IRS allowance for vehicle operation.  Reliable transportation will get you to work and get you along the road to financial recovery.

The consequence of failing the means test is that you must file Chapter 13 for bankruptcy relief.  Chapter 13 may or may not be a good fit for you.  But we all like to have choices.

Just be scrupulous that you tell the truth on the loan application.  Don’t sign it without reading it carefully.

The debt incurred to buy a newer car will survive the Chapter 7 discharge, since to keep the car, you’d have to reaffirm the car loan.  This isn’t a scheme for a free car.

It’s a dose of reality in a bankruptcy world sometimes divorced from reality.

And I can shout this from the roof tops, because I’m not your lawyer, I’m just a bankruptcy blogger and the bankruptcy gag order doesn’t apply here.


Means test meaningless in Bay Area

What you must tell your bankruptcy lawyer

Keep your car through bankruptcy

Image courtesy of Flickr and Coolio-Claire.

The post What Your Bankruptcy Lawyer Can’t Tell You appeared first on Northern California Bankruptcy Lawyer.

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ALERT:   Being over the median income is not an automatic bar to filing bankruptcy

I’m so used to railing against deliberate campaigns of misinformation about bankruptcy that I forget that there’s a lot of innocent ignorance out there.

Start with “qualifying” for bankruptcy.

A very earnest and ethical financial counselor was telling me about a client of hers trying to find the right moment in time to file bankruptcy.

She was targeting the point in time after the job loss, but before the new business got established.  After the severance pay ran out and before the child left for college.

Yet the story involved a home with a mortgage and tax debts.

I couldn’t get my head around why, on those facts, the means test was a bar to filing a Chapter 7.

Til something she said tipped me off.  She thought the means test barred families with incomes over the median from Chapter 7.

Wrong, wrong,  WRONG.

Only half must take the means test

Median income only determines whether you have to take the means test to qualify for Chapter 7.

  • Families with income below the median income in their state automatically are allowed to file.
  • Families with income above the median have to take the test. Pass the test, and you are free to file Chapter 7.

In almost 10 years of dealing with the means test, I’d guess less than a dozen of my clients have been kept from filing Chapter 7 by the means test.   Median income by state.

The means test is ugly, obscure, time consuming, and still subject to a lot of uncertainty.  But if it was designed to keep people out of bankruptcy, it hasn’t worked very well.

What’s on the means test

In broad strokes, the means test looks at your average monthly household income and deducts from it

  • some kinds of expenses at the rates provided by the IRS collection standards
  • some kinds of expenses in amounts that you actually expect to spend
  • the secured debt payments and non dischargeable taxes you will owe in the next 5 years

While some parts of the formula are rigid and disconnected from the reality of day-to-day living, it presents many ways to qualify a family to file bankruptcy.

The cruelest part of the means test is it seems to favor people with big mortgages,  car loans, unpaid child support and back taxes.  Those debts are all deductible on the means test.

It’s the folks with upper middle class incomes who pay their taxes, rent, and drive paid-for cars that are disadvantaged by the means test.

So where ever the misconception that the means test just looks at gross family income got started,  I want it stopped, you hear<g>.

If you’re above median

Being over the median income is not an automatic bar to filing bankruptcy.

It just means you need sophisticated bankruptcy counsel and some additional work to crunch the numbers so that you have a choice about your choice of bankruptcy chapter.

Remember that the supposed purpose of the means test was to funnel consumers into Chapter 13.  And most of the Chapter 13 cases we file pay little or nothing to unsecured creditors.  The money paid into the plan goes to creditors my clients want to pay, like delinquent mortgages, car loans, and recent taxes.

Not a bad deal.


Why I love Chapter 13

Means test is meaningless in Bay Area

Getting excused from the means test

Doing the means test yourself

Image courtesy of photobunny. 

The post High Income Earners Pass Bankruptcy’s Means Test appeared first on Northern California Bankruptcy Lawyer.

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Actor Fred Thompson used to appear on my Sunday morning news program every week touting the benefits of a “government insured”,  safe, reverse mortgage.

Get the money you deserve to live the good life, he urged.

I’m watching the aftermath of that sales pitch play out for one of my clients, and it’s not “the good life” I’m watching.

In fact, the foreclosure sale on the home is scheduled for next week.

Intentions thwarted

The borrower, a single woman of many decades,  took out the reverse mortgage and drew down on the loan.

She has passed away, leaving the house to my client.

The house may have as much as $300,000 in equity over and above the reverse mortgage.

But because the borrower has passed away, the lender won’t take payments from anyone else.  The loan is due and full, says the lien holder, and that’s that.

The climate for a refinance of the property in the hands of my client isn’t auspicious, so the house, and all that equity, may go, not to the relative of choice, but to the “friendly”, reverse mortgage lender.

Bankruptcy possible

A bankruptcy filing may solve this particular problem.  We’ll see.

Bankruptcy is an option only because the heir to the house is an individual.  Individuals can file bankruptcy.  Trusts and estates cannot.

If the elderly borrower had left the house to her estate, the automatic stay that comes with a bankruptcy filing, would not be available to the probate estate.  The probate estate isn’t eligible for bankruptcy relief.

House as piggybank

The risks of reverse mortgages are becoming more apparent, summarized in this Consumer Financial Protection Bureau report to Congress.

A surviving spouse who is not on the loan may have no right to stay in the home on the borrower’s death.   The loan is complex and may encourage premature tapping of home equity.

In the bigger picture, the pressure to tap home equity to support retirement is the predicable result of regarding your home as your piggybank or your retirement nest egg.

The only way to take advantage of that nest egg is to either sell the house or to borrow against it.  By retirement age, most homeowners aren’t great candidates for a conventional loan contemplating monthly payments.

And as we’ve seen in the Great Recession, you can’t count on a robust real estate market when you need that equity for retirement.

So, the gap in the retirement safety net is created, and in steps Fred Thompson and the company he shills for.

As the sergeant on Hill Street Blues said every shift:  Hey, let’s be careful out there.

 Image courtesy of Flickr and Images of Money

The post Hidden Dangers In Tapping The Reverse Mortgage Piggybank appeared first on Northern California Bankruptcy Lawyer.

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You can look a long time in the Bankruptcy Code without finding Chapter 20.

Chapter 7 is there;  so are Chapters 11 and 13.  But no 20.

But you find it in bankruptcy courtrooms and in the arsenal of good bankruptcy lawyers.

So, what’s up?

Chapter 20 is really bankruptcy slang.  It’s a Chapter 7 case followed by a Chapter 13.  Together the two chapters, 7 plus 13,  make a “Chapter 20” case.

Why would you need two bankruptcy cases?  Let’s explore.

Chapter 20 beats the debt limits

All of the powerful provisions and flexibility of Chapter 13 are only available to individuals whose debts are under the Chapter 13 debt caps.

Go over the limit for either the unsecured or secured debt cap and you aren’t eligible.

Enter Chapter 7.  There are no debt limits in Chapter 7.  You can owe as much or as little as may be and still be entitled to file Chapter 7.

The Chapter 7 discharge can be expected to wipe out your personal liability for most unsecured debts and allowing you to fit into Chapter 13.

The power of Chapter 13

The things Chapter 13 can do that Chapter 7 can’t so is long and enticing.

  • Getting time to get current on mortgages
  • Paying off taxes that didn’t go away in Chapter 7
  • Stripping liens down to the value of the collateral
  • Providing a forum for a lawsuit against your lender
  • Reducing the interest rate on usurious car loans

Any one of those things might be necessary to get a genuine fresh start.

No discharge in Chapter 20

Since bankruptcy “reform” in 2005, someone who files a Chapter 13 right after their Chapter 7 doesn’t get a discharge in the Chapter 13 case.

Four years must pass between the filing of a Chapter 7 and the filing of a Chapter 13 for a discharge to be available in the Chapter 13.

So what you get in the no-discharge 13 is the opportunity to strip liens; satisfy secured claims; and get current where you want to.  Debts where your personal liability wasn’t discharged in the Chapter 7 that don’t get paid in full in the following 13 will live past the end of the second case.

A powerful consensus is building in the courts that debtors can strip off underwater mortgages on their homes even in bankruptcies where they don’t get a discharge.  But in Chapter 20, you’ve already gotten a discharge of your personal liability on the debt, so it’s not a big deal.

The power of 13 is dealing with the liens that survive the Chapter 7.

Automatic stay applies

The restrictions on the automatic stay where you’ve had several bankruptcy cases pending during the year don’t apply to the no-discharge Chapter 13.

Why?  Because the first case, your Chapter 7 case, was not dismissed.  Rather, it concluded, as it should, with a discharge.

Understanding the difference between dismissal and discharge

Bankruptcy in a rising market

Chapter 20 becomes appealing when the debtor’s prospects are improving.  When real estate is rising or a positive change in your earning power is in the offing, having that increased prosperity exposed in the first instance to a Chapter 13 trustee is scary.

The law is clear that a Chapter 13 debtor’s earnings during the Chapter 13 may trigger a motion to increase plan payments after confirmation.  It’s less clear what the impact of increased property values, property sales, or inheritances are on the rights of creditors in Chapter 13.

So, if better times are likely ahead, a Chapter 20 works to par down the list of creditors who have unsatisfied claims in the Chapter 13.  The Chapter 7 discharge has wiped out most of those creditors and the remaining creditors are ones you want/need to pay anyway.

Bravo for Chapter 20.


Reasons to love Chapter 13

Lien stripping in Chapter 20

The automatic stay when you refile a dismissed case

Image courtesy Pixabay.

The post When Chapter 20 Bankruptcy Adds Up appeared first on Northern California Bankruptcy Lawyer.

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Even in a world where people attempt almost any skilled task with the help of Google, YouTube, or Legal Zoom,  people continue to ask: is this contract legal?

They aren’t asking (usually) whether the subject matter of the contract is permitted by law.

They really want to know: will what I’ve written be enforceable.

What makes it a contract

There are no magic words or phrases that make a contract enforceable by a court.

Enforceability is not acquired by adding “whereas” or “notwithstanding“.

A contract need only establish that one party made a promise to the other for consideration. Consideration is legalese for money.  Or something else of value.

If I promise to join you for dinner next Friday, we have not created an enforceable contract, because there was no valuable consideration exchanged.  My promise was gratuitious.  You didn’t offer me anything but your good company over a meal.

If , on the other hand, I promise to speak at the event you’re planning, for which you’ll pay my  fee, then we have an enforceable contract.  I will appear and speak, and you will pay.

If either of us fails to do what we’ve promised, a court will attempt to give the injured party the benefit of the bargain.

So here are four tips on drafting a contract that does the job.

1.  Write the complete expression of the deal

The biggest failing of DIY contracts is incompleteness.  They don’t describe fully the performance that is promised.  They miss one of the essential terms:

  • who
  • what
  • where
  • when

If you hope that a judge will enforce a contract, it has to be written such that an absolute stranger to the deal, the judge, can read the contract and know what was agreed.

Too many self-drafted contracts don’t contain enough for a stranger to understand the deal.

Now, contracts with missing terms or ambiguities can be enforced.  The contract is still “legal”.  It’s just that there is a great risk that the missing terms as the judge fills them in don’t match the intent of the parties.

Enforcement of a fragmentary contract is far more expensive than had the contract been complete.

Enforcement of the unwritten terms becomes victim to what each party remembers but didn’t write down.

2. Flush out & write down assumptions

Often, the contracting parties each come to the table with a collection of assumptions about the arrangement.  And each party assumes that the other party shares their assumptions.

Only, until you articulate your assumptions, you can’t test whether you are both, really, on the same track.

The unwritten assumptions form part of the deal.  A good contract lays the assumption out on paper.  If they aren’t shared when you sit down to write the contract,  discussion or negotiation ensues.

The exercise of writing it out becomes as important as the writing itself.

3.  Explore the “what ifs”

Well crafted contracts provide for the rights of the parties if things don’t go just as hoped when the contract was formed.

What if

  • one party gets sick and performance is delayed
  • the materials aren’t available on schedule
  • the product doesn’t perform as anticipated

My rule of thumb is that the more money that is involved, or the more critical the contract is to your business, the more what ifs the contract should address.

If the consideration is $1000, it’s not worth extended negotiating or drafting to deal with remote possibilities.  If it’s a $100,000, it’s worth more to lay out the details.

4.  Provide for attorney’s fees

If you expect to enforce the contract in court if it’s breached, then your contract should provide that the injured party can collect its attorneys fees from the other in addition to any other damages.


Because the American Rule about attorneys fees says that each party pays their own attorney, win or lose.  That is, unless the contract, or a statute, says differently.

Without a provision that grants the prevailing party the attorneys fees necessary to enforce the contract, it may simply be too expensive to go to court.  Or, the cost of representation may consume the damage award.

Write on

With these principles in mind, you can draft a contract that is certain and enforceable.  Strive for clarity and completeness.

And if this seem too daunting, take your draft to an attorney and pay only for review and repair of your document.

Because, at the end of the day, a contract only works if you can enforce it.


How you sign your name to your corporation’s contract

Benefits of incorporating not what you think

Does your business partnership have a prenup?

Image courtesy of Pixabay and Nemo.

The post How To Write A Contract Without A Lawyer & Make It Stick appeared first on Northern California Bankruptcy Lawyer.

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The guy with an old debt asked if bankruptcy or debt settlement would cause greater damage to his “credit”.

The money advice columnist gave the right answer to the wrong question.

She got it backwards. So did the man with the question.

She advised that bankruptcy was more damaging given that the nagging debts were already three years old and would drop off his credit report in four years, whereas bankruptcy would show for seven to ten years from the bankruptcy filing.

Right, assuming that your credit history is the important issue.

But your credit record is a sideshow in life.

Dealing with old debt

I would challenge the question the way the guy phrased the question in the first place.

When you look at the alternatives to debts you can’t pay, I think the first concern should be for your balance sheet.

Which of the alternatives makes you better off NOW, not when you want to incur more debt in the future.

For the man writing in about settling a $13,000 debt for $5,000, I would have a series of questions that didn’t center on his ability to get new credit.

  • How old are you?
  • Do you support others?
  • Do you have any emergency savings?
  • How are you doing on retirement savings?
  • Got health insurance?

If he is young, single, and employed with a bit of money in the bank, perhaps paying $5,000 to make eliminate a $13,000 debt is a good deal.

If he’s middle aged, supporting children or aged parents, and living paycheck to paycheck, I would be inclined to suggest there are better uses for $5000.  At the most basic level, put it in an IRA, and your creditors can’t take it.

If he’s approaching retirement and looking at a future of reduced income and with  little need for future credit, chances are that there are crying needs for that $5000 other than dealing with an old debt.

It’s not about the credit score

As you can see, settling versus a bankruptcy discharge is not just a matter of which impacts your credit record more negatively.

The decision needs to take in your ability to spend money on old debts when faced with current and future demands on your assets.

It’s all backwards to think that protecting your credit record is the central issue..


Credit heals

Better to keep paying or file bankruptcy

Shore up your defenses against debt collectors

Image courtesy of Flickr and Luke Montague


The post The Worst Reason To Settle Debts Rather Than File Bankruptcy appeared first on Northern California Bankruptcy Lawyer.

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Days before the end of the tax year, the massive tax bill changed the rules retroactively.  And for once, the change benefited individual taxpayers.

The tax bill revived, for tax year 2017, the exclusion from income accorded to phantom income upon foreclosure, short sale, or loan modification.

The provision that created an exception protecting struggling homeowners from a tax hit for debt canceled upon foreclosure of their principal residence. It expired with tax year 2016.

So, for instance, if you got a loan modification in 2017  that reduced the principal on your home loan, that reduction was once again going to be treated as income, and subject to tax.

But Congress restored for one more year the qualified principal residence indebtedness exclusion.  (That’s a mouthful).

The details are beyond me.  NCLC reported the change here.   Kenneth Harney of the WashingtonPost talked about the exclusion in the middle of his look at real estate and tax issues.

A Google search for the IRS publication on cancellation of debt tax issues seems to be wrong, now that the tax bill is law.  It treats canceled mortgage debt as if the exclusion wasn’t available in 2017.

Confusion seems to be inevitable.

The post Last Minute Tax Break For Distressed Homeowners appeared first on Northern California Bankruptcy Lawyer.

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The latest IRS scam is happening in bankruptcy, out in the open.

Now usually when I write about IRS scams, I’m talking about genuine bad guys either pretending to be the IRS to hijack your money or pretending to the IRS to be you, to hijack your money.

But nobody is pretending in the trick I first saw last week.  The IRS is simply trying to collect the Affordable Care Act penalty twice.

What the IRS did

My client filed Chapter 13, owing income taxes.  The most recent of those taxes must be paid in full to get a Chapter 13 discharge.  So, the amount that must be paid is critical to the success of the plan.

The IRS filed a proof of claim for the unpaid income taxes.

But then, weeks later, the IRS amended their claim to add an “excise tax” , for the penalty under the Affordable Care Act, for not having health insurance.

The IRS conveniently “overlooked” the fact that the filed tax return already included the penalty on line 61 of the 1040.

So, they wanted to get paid twice by putting a benign label, “excise tax”, on the form, and hoping that you didn’t dig deeper.

No right to double payment

The tax law for the years in question, 2015 and 2016, imposed a penalty for not having insurance, to be collected by the IRS.

The IRS form includes a line where you add the penalty to your taxes if you didn’t have appropriate insurance.  So when my client filed his return, he’d already added the penalty to what he owed.

And the IRS dutifully used his return to claim payment for the unpaid amount.


But it’s not OK to double dip and add a duplicate penalty with another name.

When I challenged the IRS agent who filed the claim, his response suggests that he’d not looked at the client’s tax return;  he’d just added the penalty to the claim by rote.

Conversations with fellow bankruptcy specialist William Brownstein suggests the IRS confusion runs more broadly on this issue.  He reports the IRS assessing non-bankrupt tax payers with penalties for not including form 1095-B with their returns, even though the form itself says “don’t file with your return”.

So, the first step is to eliminate the duplicate claim.

But there’s more.

Is the ACA penalty entitled to priority payment

Recent taxes are given a priority for payment under the Bankruptcy Code.  If the ACA penalty is a “tax” within the meaning of the Bankruptcy Code, it must be paid in full in Chapter 13.

But, is this exaction a tax?

A Louisiana bankruptcy court recently said no in a case called Chesteen.  It’s not a tax, it’s a penalty.  And as a penalty, it isn’t entitled to payment in full, and as a penalty, it is dischargeable at the completion of the plan.  Great work by NACBA member Rachel Thyre Anderson, who reports that the decision has been appealed.

Where do we stand on ACA penalty

While the issue of whether the penalty is a tax or not may not yet be settled by the Chesteen decision, it is clear that the IRS, at best, only gets to collect the penalty once.

If the penalty is properly included on the tax return as filed, then any additional “excise tax” that claims priority status should be challenged.

The post IRS Shakedown Happening In Bankruptcy Court appeared first on Northern California Bankruptcy Lawyer.

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