Tag Archive: Exemptions


I hope that your new year is off to a good start. Today’s blog post is about the importance of the timing when filing your for bankruptcy protection, especially when it comes to your taxes.

If your petition is filed before you receive and spend your 2010 tax refund, the trustee will use 100% of the refund to pay your creditors, as there is no law protecting the tax refund. Since, this is typically not the preferred outcome, the better way to time your filing is to wait with the filing of your bankruptcy petition until after you have filed your tax return, received your tax refund, and spent the tax refund on exempt items, then file the petition. Furthermore, since a lot of our clients are worried about how to come up with the fees and costs to even afford the filing, being smart and protecting your tax refund by receiving it first, usually helps alleviate this worry as well.

When filing in 2011, your 2010 is not the only tax year you need to worry about. This is because regardless of when you file, your creditors – through the trustee – are entitled to the pre-filing portion of your 2011 tax return. For example, if you file on August 31, 2011, the creditors will receive approximately 8/12ths of your 2011 tax refund, even though you won’t even receive that until 2012. For a $1,200 refund, that would mean $800 goes to your creditors. Therefore, filing early in the year allows you to protect most – and sometimes even all of your 2011 tax refund.

Therefore, typically the best time to file for protection under the bankruptcy laws is immediately after receiving your tax refund, as early as possible in the new year. We encourage you to contact us as soon as possible and set a timeline for filing in the next couple of months, so that hopefully next year, you won’t even have to worry about it anymore.

CALL OR EMAIL TODAY! Steve and I are ready to assist you in getting your fresh start, and putting a permanent end to harassing creditor calls!

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Tis the season for tax refunds.  In this season, a number of people find themselves in an odd conundrum.  Their debts are eating them alive and they are preparing to file for bankruptcy, but they have a small tax refund from the IRS coming and so they are instructed to “spend it on exempt purposes.”   This conundrum does not just apply to tax refunds.   In a surprising amount of cases, a person my find himself with more money than he is allowed to have on the date of filing shortly before filing.  The tricky part about this is that you are allowed to spend the money, but you are not exactly allowed to do with it as you wish.  For example, you can’t (read also: should not) give the money to a family member or friend in repayment of a debt (this would be considered a preferential payment), you should not give it to someone to ‘hold on to’ until your bankruptcy is over (this would be considered a fraudulent transfer, believe it or not), and you most definitely should not use it to purchase something that the trustee will consider a non-exempt asset and so take away from you.

Instead, you should use the money for exempt purposes.  This blog post will discuss what ‘exempt purposes’ mean for someone living, and filing for bankruptcy in Arizona. (NOTE: This is exclusively about Arizona exemptions, so if you have never lived in Arizona, and you don’t now, this will be an overview of how it works in Arizona, but it won’t help YOU, as all states have different exemption laws.).

So, what to do with the money, then?  Well, first of, you can pay your current monthly bills (not your creditors, but rather your utilities, mortgage, rent, car-payment, phone bill, whatever it may be).  Do NOT pre-pay anything!  Then, go shopping for groceries and supplies (think toilet paper).  In Arizona, you can have up to 6 months worth of groceries and supplies on the date of filing.  Be sure to keep receipts for everything you buy, and if you go an a grocery shopping spree within a couple of days before filing, be sure to list it on your asset schedule.  You want to be able to show the trustee that you used the money for something you are allowed to have, something that is protected.  Therefore, stay away from buying anything shiny (think jewelry), anything that uses electricity (think big old flat screen), and anything that you could sell again after your bankruptcy is done.

Now, what if you are getting a sizeable refund, more than what you could reasonably spend on groceries and supplies.  Well, there are a few options, the most basic ones are as follows:

  • Pre-pay your mortgage/pay down on your principal:  In Arizona you are allowed to have up to $136K of equity ($150K if you have had the house for more than 10 years) in your HOME.
  • Prepay you car payment: As long as the equity in your car is no more than $5K, there is no problem.  ONLY do this if you intend on keeping your car.
  • A better alternative, especially if you are currently in a position where making the monthly car payment is a struggle from month to month, is to use the money to purchase a car, free and clear.  As long as the car is not worth more than $5K, you get to keep it, no questions asked.  This will then allow you to surrender the other, financed vehicle as part of your bankruptcy, and live car-payment free.  This can be a huge burden off your back, and in light of the current market, you CAN get a pretty decent car for $5K. 

These are some of the most common examples of ‘exempt purposes’.  The most important lesson of this blog post is that there is a right way to plan for your bankruptcy, that is recognized and allowed by the law, and then there is a wrong way, and the wrong way can lead to a number of headaches down the road (including but not limited to having the trustee knock on your mom’s door telling her that she has to return the money you just paid her back).  If  you are contemplating bankruptcy, it is important to speak to an attorney as early in the process as possible, so you can be sure to avoid some of these common mistakes, and put yourself in the best possible starting position after your bankruptcy, without unwittingly defrauding your creditors.

The Arizona exemptions provide that up $150,000 of equity in your home is protected from your creditors. This applies if you file for bankruptcy as well. This means that if you are current on your house payments and have, in fact, some equity in your home, the Trustee cannot make you sell your home and pay your equity to your creditors as long is it is less than $150,000. Furthermore, while too much equity is not really much of a problem these days, even if you are over the $150,000 limit by a little bit, the Trustee will often agree to let you make payments for the difference, rather than making you you’re your home. Finally, while Arizona is an opt-out state and has chosen to use its own state exemptions for bankruptcy debtors, there is a portion of the Bankruptcy Code that may have the effect of limiting your homestead exemption to $136,874.00. If you think that the current equity in your home may exceed that amount – speak to your bankruptcy attorney to ensure you are protected. Saving your home in the bankruptcy is likely your number one priority, and with the protections provided under Arizona law, and some assistance from a knowledgeable bankruptcy attorney, it is a goal that can be accomplished.

The Arizona exemptions provide that on the date of filing only $150 per debtor (therefore $300 for a married couple filing jointly) are exempt.  This applies even if cash held is to be used for an exempt purpose in the future.  (This is so because no one would ever be able to check what you will use the money for next month).  It does not matter how much money a debtor has the day before filing (as long as all the money is spent on exempt items by the time the petition is filed). It also does not matter how much money passes through your account after you have filed.

 The one exception to monies received after filing is income earned prior to filing, but not actually received by you until after filing. This income is only partially non-exempt and the Trustee can take up to 25% of this ‘earned but not yet paid’ income. For example, if a person gets paid every Saturday through direct deposit and files on Friday, then only 75% of the following Saturday’s pay is exempt; the rest can be taken by the Trustee.

 If you have non-exempt money in your bank account on the day of filing, the worst case scenario is that the Trustee will request that you pay it to her.  As long as you are aware of that possibility, you can deal with it accordingly.  The biggest problem debtors typically run into is that they have non-exempt money on the day of filing, but then spend it, and when the Trustee asks for it, they no longer have it, and have to come up with payments to make to the Trustee.

 I understand that this may be seem like a lot of extra stress that you do not need right now. However, the bankruptcy code has very strict rules about what kind of assets a debtor is allowed to keep during a bankruptcy.  This is done to ensure the creditors get their fair share under the laws.  Essentially, the law states that a debtor should not be allowed to sit on a sum of cash, while his or her creditors get nothing.