Can a bankruptcy trustee take all of a joint tax return?

Get Legal Help Today

 Secured with SHA-256 Encryption

Can a bankruptcy trustee take all of a joint tax return?

I filed bankruptcy on 08/28/10 (Chapter 7). I’m married but my case doesn’t include my wife it was all sole debt I had before I got married. The trustee wants me to surrender the whole joint return. My wife and I feel the trustee should only be entitled to my half of the return, and why should I have to surrender 100% of my portion because I filed 3/4 of the way through the year. Also, my wife was in no way associated with my bankruptcy. Should they take the return since my income was already included in my case?

Asked on October 26, 2010 under Bankruptcy Law, Indiana

Answers:

M.D., Member, California and New York Bar / FreeAdvice Contributing Attorney

Answered 10 years ago | Contributor

First of all, since I don't know all of the specifics of your case, you really will need to consult with  bankruptcy attorney as to this.  They can more fully apprise you of your rights in this situation.  However, generally as to a debtors share of their tax return, if they filed their bankruptcy case prior to the end of the calendar year that the refund represents, the Trustee will include only that portion of the year prior to the case filing date.  In your case that means that if you filed the case on 08/28, only 8/12 of the refund will be an asset that the trustee can claim.  As to your wife, she may still get her share of the tax return; under the law and your limited facts, it appears that she should not have to suffer the consequences of your bankruptcy. Therefore, since if you filed for tax returns jointly but only you filed for bankruptcy, she should still get her half of your joint tax return.  Note:  Since the source of a tax refund is excess withholdings, the refund is pro-rated based upon the percentage of withholdings attributable to each spouse, however, if a spouse does not pay anything in, he or she is not entitled to the refund.

IMPORTANT NOTICE: The Answer(s) provided above are for general information only. The attorney providing the answer was not serving as the attorney for the person submitting the question or in any attorney-client relationship with such person. Laws may vary from state to state, and sometimes change. Tiny variations in the facts, or a fact not set forth in a question, often can change a legal outcome or an attorney's conclusion. Although AttorneyPages.com has verified the attorney was admitted to practice law in at least one jurisdiction, he or she may not be authorized to practice law in the jurisdiction referred to in the question, nor is he or she necessarily experienced in the area of the law involved. Unlike the information in the Answer(s) above, upon which you should NOT rely, for personal advice you can rely upon we suggest you retain an attorney to represent you.

Get Legal Help Today

Find the right lawyer for your legal issue.

 Secured with SHA-256 Encryption