For most debtors filing under chapter 7, 11, 12, or 13 you are able to keep your tax return without surrendering it over to the case trustee or the estate.

In bankruptcy you are able to exempt certain asset from your creditors and the bankruptcy estate. Although there is no specific exemption for tax returns, the federal exemptions allow for a “wild card” exemption for up to $11,200 per person or $22,400 for married debtors filing jointly.

Because of the large value of the wild card exemption it is rare that a debtor will lose their tax return in bankruptcy.

Also, individuals filing under chapter 11, 12, or 13 will simply factor their anticipated tax return into their monthly budget as to not lose their tax return over the course of the bankruptcy plan.

In order to protect an asset a person thinking about filing bankruptcy may transfer an asset out of her name and into the name of another. This can include a home, vacation home, car, boat, plan, motorcycle, or even cash in the bank.

This is a huge bankruptcy mistake.

This would be an attempt to defraud your creditors. It could result in, a denial of the bankruptcy discharge, loss of the asset, or even criminal actions.

The good news. The asset, would be bankruptcy debtors are trying to hide can typically be exempted in a chapter 7 bankruptcy or protected in chapter 13 filing. In short if you try to hide something from the Court you are risking a lot with no possible reward.

Before taking any action with your assets talk to a qualified attorney.

Leave it there.

An individual filing a chapter 7 bankruptcy case you may be able to exempt up to $11,200 ($22,400 for a married couple) of cash and bank deposits.

If the money is exempt it will not be touched by the bankruptcy court, trustee, or your creditors. Simply put you can keep.

If you are filing a chapter 13 case there is no liquidation of your assets, unless you want there to be, so here again you can keep the money in your bank.

If you have cash and bank deposits that exceed the exemptions, fear not, you may be able to protect some of the non-exempt money by placing it into an IRA or putting a new roof on your home. I strongly encourage you to meet with a lawyer prior to planning any exemption.

This is called “Setoff.”  A bank has the right to “setoff” one account against another. For example if you have a loan and a checking account (or other account with money on deposit) at the same bank and you stop paying the loan the bank may pay the loan by taking the money out of your checking account. The bank does not have to tell you in advance of doing this.

What to do? How to avoid setoff?

If you are falling behind on loan payments and have a bank account at the same bank. Then simply withdraw your money from the banking account and go to a new bank. Since there is no money in your banking account there can be no setoff.

Around this time of the year many struggling families look to their income tax return to provide some relief. These same struggling families often consider filing for bankruptcy.

A common question becomes: Can I file bankruptcy and keep my tax returns?

Typically, yes an individual can keep his or her tax return.

Although everyone’s bankruptcy case is different and an individual assessment of your case will be required, most debtors are able to completely exempt their tax return, thus protecting from the case trustee and your creditors.

If, you are in the small minority of debtors that are unable to fully exempt your tax return, you may be able to plan your exemptions and spend down some of the tax return prior to filing for bankruptcy. Thus, you will keep the entire tax return.

Please feel free to give me a call to discuss your particular case and determine the best way to protect your tax return and all your assets from your creditors and the bankruptcy trustee.