108457166715465817

DEBTOR’S TAX RETURN FILED AFTER IRS SFR AND ASSESSMENT WAS NOT A “RETURN” FOR PURPOSES OF BANKRUPTCY DISCHARGE

The Court concludes that the document Ehrig submitted to the IRS in 2000 for year 1990, the accuracy of which was ultimately rejected by the IRS, although it may have been as accurate as was possible after such an extended delay, was a self-serving attempt to reduce his liability after the IRS (1) prepared and fifed an SFR without the cooperation of Ehrig, (2) sent a notice of deficiency, to which Ehrig failed to respond, (3) assessed the 1990 Liability, which Ehrig [failed] to contest, and was so long belated that it cannot, as a matter of law, be deemed an honest attempt to comply with laws. Moreover, the filing served no purpose; it did not allow liability to be
assessed, it did not affect the amount of liability, nor it did abate or purge penalties or other liabilities incurred on account of failing to timely file.

Accordingly, the Court concludes, as a matter of law, that the document was not a “return” as that tennis given effect in Section 523(a)(1)(B)(i). Closely allied with the conclusion that the document served no purpose is the fact that a return was [not required once the IRS had filed an SFR] and therefore Ehrig’s 2000 submission did not cure his filing delinquency for year 1990. Pursuant to both of these theories, the Court declares the 1990 Liability non-dischargeable.

IN RE EHRIG, (N.D.Okla. 2004)
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BK PETITION PREPARER WAS PRACTICING LAW WITHOUT LICENSE

A bankruptcy petition preparer engaged in the unauthorized practice of law by interpreting the terms “market value” and “secured claim or exemption” in connection with completion of bankruptcy forms.

Taub and the Greenwaldts disagreed about how to treat a 401(k) retirement account on the bankruptcy forms. Schedule B, an official form included with the Greenwaldts’ Chapter 7 filing, required listing the “market value” of the debtors’ personal property. The heading on the form read: “CURRENT MARKET VALUE OF DEBTOR’S INTEREST IN PROPERTY, WITHOUT DEDUCTING ANY SECURED CLAIM OR EXEMPTION.” In their draft documents, the Greenwaldts indicated that the retirement account held approximately $80,000. The Greenwaldts also noted that they had borrowed $39,000 against the account. The Greenwaldts thus filled out draft bankruptcy forms listing what they believed was the net value of the account-$41,000. Taub, however, prepared the forms with a market value listing of $80,000. As the bankruptcy court explained: “The discrepancy was pointed out, but Taub gave no explanation. [The] Greenwaldts asked him to change the entry but he refused. They eventually relented, assuming that he knew what he was doing.”

Held, [A]ll personal contact between defendants and their customers in the nature of consultation, explanation, recommendation or advice or other assistance in selecting particular forms, in filling out any part of the forms, or suggesting or advising how the forms should be used in solving the particular customer’s marital problems does constitute the practice of law.

Taub v. Weber (9th Cir. 2004)
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RIGHT TO RECEIVE FAMILY MAINTENANCE WAS NOT PROPERTY OF THE ESTATE

The trustee contends that Vicki’s right to receive maintenance postpetition accrued prepetition and is, thus, an asset of the bankruptcy estate, subject to an allowed exemption of $500.00 per month. He, therefore, asks this Court to order Vicki to turn over to the trustee, each month, the sum of $750.00. But the exemption provisions only apply as to property that would have been property of the estate. So the issue is whether a debtor’s right to receive maintenance comes into the estate in the first instance.

Held, maintenance is a personal statutory right analogous to income, not a property right, and that the right to receive maintenance arises each month as the payment is due. Thus, section 541(a)(5) is not applicable to the right to receive maintenance payments. I will, therefore, overrule the trustee’s objection to Vicki’s claim of exemption.

In re Mitchem (Bankr. W.D. Mo. 2004)

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