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New Member of Listserv - Chapter 13's and Tax Refunds Issue
The language in the plans we file in Riverside protecting the yet to be
received tax return is "For less than 100% plans, the Debtor pledges to
the plan all future, post-petition, NON-EXEMPT tax refunds received
during the plan".
A trustee needs to bring an actual motion to object to an exemption.
The motion needs to be in writing and requires notice etc. Once the 341
is concluded the trustee has 30 days to bring the objection or the
objection is waived. He CANNOT just put the language in the Order even
if it is local, local, practice. The language I cite above was in
response to this attempt.
Please stand your ground. You are doing the right thing.
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Listmates,
I recently joined the CDCBAA and this is my first posting. Hopefully, I am posting correctly?
Here's the issue where I could use the advice of more experienced Chapter 13 attorneys. I filed a Chapter 13 case on 1/28/11. On Schedule B I listed anticipated tax refunds (for tax year 2010) of $6,500 (which debtor had not yet received). I used the Wildcard to exempt it on Schedule C. The issue of the tax refund was never raised at the 341 (Danielson), and Rod put the matter on the consent calendar subject to a few minor interlineations. A few weeks later I get a copy of the order with language added to the effect of "the tax refund exemption language on Schedule C is stricken." That was a big surprise!
I file a Motion to strike the language from the order. The Trustee's comments on my Motion are to ask Judge Jury for a ruling saying that any tax refunds, even those for income pre-petition, should be turned over to the Trustee. I am concerned about any precedent that my Motion may set related to other Chapter 13's.
What is the practice in this area? I have spoken with two other attorneys that believe the Trustee is just plain wrong. Is he? I'm happy to share the Motion and Comments if anyone is interested? The hearing is 4/25, so time is short. I would like to file a response before the hearing.
Thanks in advance for any advice.
Christopher Heritage
Heritage Legal, PC
Central & Southern Districts of California
chris@heritagelegal.com
760-325-2020, ext. 14
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