Concord, NH asked in Bankruptcy and Tax Law for New Hampshire

Q: Why would a chapter 13 trustee take excess tax refunds if the payment plan is 100% funded payback?

Isn't your disposable monthly income calculated using your gross income which essentially includes the "yearly tax refund" amount? If we are using our disposable income to fund the plan at 100% payback, how is it legal for the trustee to take more to get it faster? Legally don't I get five years to pay it back especially if all parties in the plan agree to these terms? Also, if it is my husband and I both filing jointly, and they say $1200 excess will be taken, is that $1200 per person or jointly $1200? So in our situation anything in excess of $2400 will be taken or anything in excess of $1200? Thank you.

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1 Lawyer Answer
Robert O'Brien
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  • Bankruptcy Lawyer
  • Convenience, NH
  • Licensed in New Hampshire

A: Greetings!

Chapter 13 plans are funded by "disposable income" of the chapter 13 bankruptcy estate, which is based on "household income". Included in most NH chapter 13 plans is a provision that requires chapter 13 debtors to pay over to the trustee all income tax refunds that exceed $1,200, regardless of whether it is an individual or joint case. Since 'disposable income' represents the household income after taxes and required deductions, less approved living expenses for the household; any income tax refund for a particular year would have increased disposable income had it not been deducted as withholding taxes excluded from the determination of chapter 13 disposable income. To minimize the amount of expected income tax refunds, each wage earners w-4's should be carefully reviewed and adjusted accordingly.

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