Where on the SOFA? #1 as income?
I don't think it's a transfer under #10, so I don't know where else it
would be disclosed.
Holly Roark
holly@roarklawoffices.com
www.roarklawoffices.com
Central District of California
Consumer Bankruptcy Attorney
1875 Century Park East, Suite 600
Los Angeles, CA 90067
T (310) 553-2600
F (310) 553-2601
On Fri, Aug 17, 2012 at 7:32 AM, Shannon Doyle wrote:
> **
>
>
> Yes it is income. Wait until the six month period lapses before filing. If
> you have to file sooner you can argue special circumstances but best to
> avoid that if possible. It also has to be disclosed on SOFA so make sure
> the funds were spent on necessary living expenses. ****
>
> ** **
>
> ** **
>
> Shannon A. Doyle****
>
> Attorney at Law****
>
> [image: small logo]****
>
> 100 N. Barranca Avenue, Suite 250****
>
> West Covina, CA 91791-1600****
>
> Tel: (626) 646-2555****
>
> Fax: (626) 332-8644****
>
>
www.blclaw.com ****
>
> ** **
>
> *From:*
cdcbaa@yahoogroups.com [mailto:
cdcbaa@yahoogroups.com] *On Behalf
> Of *Holly Roark
> *Sent:* Thursday, August 16, 2012 6:54 PM
>
> *To:*
cdcbaa@yahoogroups.com
> *Subject:* Re: [cdcbaa] Early IRA or 401K distributions as income on the
> means test****
>
> ** **
>
> ****
>
> PS - I just learned that the 401K funds which were cashed out early and
> within the 6 month CMI period were all earned prior to marriage. The
> spouse who cashed out the funds is not filing. The funds were deposited
> into a joint account, so I understand that may defeat the presumption of
> separate property, but does it change the analysis with respect to whether
> it would be considered income on the means test of the filing spouse? Any
> family law specialists are welcomed to chime in!
>
>
> ****
>
> Holly Roark****
>
>
holly@roarklawoffices.com****
>
>
www.roarklawoffices.com****
>
> Central District of California****
>
> Consumer Bankruptcy Attorney****
>
> 1875 Century Park East, Suite 600****
>
> Los Angeles, CA 90067****
>
> T (310) 553-2600****
>
> F (310) 553-2601****
>
> ****
>
>
>
> ****
>
> On Thu, Aug 16, 2012 at 6:34 PM, Holly Roark
> wrote:****
>
> Hello, I just found this thread by searching the CDCBAA listserv database
> for the issue of whether an early 401K distribution is "income" on Form
> 22A. I have also researched the issue online and found various cases and
> this article:
>
http://journal.abi.org/sites/default/fi ... /point.pdf****
>
> ****
>
> It appears that there is a split of authority on the issue, but that the
> UST considers the early distribution from a 401K to be income and should be
> listed on Form 22A. This thread is nearly a year old and I am wondering
> whether to anyone's knowledge the UST has changed their position on this
> since a year ago. ****
>
> ****
>
> I am filing a Chapter 7 in Riverside tomorrow and am wondering whether in
> Riverside the Debtor is expected to include an early 401K distribution as
> income on the means test. ****
>
> ****
>
> I agree with the reasoning in the *Cram* case (Idaho) cited in this
> thread which held that the funds held in the Debtors' 401(k) account were
> "received" as income when they were earned and deposited into that account,
> which was in some unspecified period of time preceding the six-month CMI
> period, and that the subsequent distribution from the 401(k) during that
> six-month period is not "income . . . the debtor receives" for purposes of
> 101(10A)(A). ****
>
> ****
>
> *Does anyone have an update on this issue, especially with respect to how
> it is dealt with in Riverside?* ****
>
> ****
>
> I can certainly explain that this was a "one time" distribution and not
> regularly occuring, and I don't think it will be a problem to qualify for a
> Chapter 7, but ideally I would like to be able to not include it on Form
> 22A if I don't have to. ****
>
> ****
>
> Thanks.****
>
> ****
>
> ****
>
> Holly Roark****
>
>
holly@roarklawoffices.com****
>
>
www.roarklawoffices.com****
>
> Central District of California****
>
> Consumer Bankruptcy Attorney****
>
> 1875 Century Park East, Suite 600****
>
> Los Angeles, CA 90067****
>
> T (310) 553-2600****
>
> F (310) 553-2601****
>
> ****
>
>
>
> ****
>
> On Wed, Nov 16, 2011 at 1:48 PM, Nicholas Gebelt
> wrote:****
>
> ****
>
> Dear Steven,****
>
> ****
>
> I agree with Jim that the reasoning in those cases is persuasive.
> However, it is not binding on any Central District judges. On October 21 I
> included the following in a post on the subject:****
>
> ****
>
> According to the UST's line by line instructions for completing Form 22A (
>
http://www.justice.gov/ust/eo/bapcpa/do ... y_line.pdf), which is
> dated April 23, 2010:****
>
> ****
>
> Unless a circuit court has decided an issue to the contrary, United States
> Trustees should, absent unusual circumstances, maintain these positions
> when interpreting section 707(b). . . . Line 7, Pension and retirement
> income. . . . *Includes all other retirement, including government,
> 401(k), and IRA*.****
>
> ****
>
> Therefore, while the Eighth Circuit may be okay with not listing these
> distributions as income, until the Ninth Circuit rules on the question if
> you fail to list either IRA income or 401(k) income you're asking for
> trouble.****
>
> ****
>
> Your client may end up being the test case. Therefore, make sure to have
> your client sign a statement to the effect that he/she understands that the
> question hasn't been decided in the Central District, and is willing to
> test the waters. Then file the chapter 7 with the understanding that there
> is a potential for either a fight with the UST (based on the official UST
> position quoted above), or a conversion to chapter 13.****
>
> ****
>
> Good luck,****
>
> ****
>
> Nick****
>
> ****
>
> Nicholas Gebelt, Ph.D., J.D.****
>
> Certified Bankruptcy Specialist****
>
> ****
>
> [image: Description: cid:
image003.jpg@01CC076B.B14D73C0]****
>
> ****
>
> Law Offices of Nicholas Gebelt****
>
> 15150 Hornell Street****
>
> Whittier, CA 90604****
>
> Phone: 562.777.9159****
>
> FAX: 562.946.1365****
>
> Email:
ngebelt@goodbye2debt.com;
ngebelt@gebeltlaw.com****
>
> Web:
www.goodbye2debt.com****
>
> Blog:
www.southerncaliforniabankruptcylawblog.com/ ****
>
> ****
>
> *We are a debt relief agency. We help people file for bankruptcy relief
> under the Bankruptcy Code.*****
>
> ****
>
> Confidentiality Note: This e-mail is intended only for the person or
> entity to which it is addressed and may contain information that is
> privileged, confidential, or otherwise protected from disclosure.
> Dissemination, distribution, or copying of this e-mail or the information
> herein by anyone other than the intended recipient, or an employee or agent
> responsible for delivering the message to the intended recipient, is
> prohibited. If you have received this e-mail in error, please notify us
> immediately at 562.777.9159 or e-mail
info@gebeltlaw.com and destroy the
> original message and all copies.****
>
> ****
>
> Representation Note: If you have not signed a contract of representation,
> the Law Offices of Nicholas Gebelt do not represent you, and this email
> does not contain any legal advice for you.****
>
> ****
>
> *IRS Circular 230 Disclosure: In order to comply with the requirements
> imposed by the Internal Revenue Service, we inform you that any U.S. tax
> advice contained in this communication (including any attachments) is not
> intended to be used, and cannot be used, for the purpose of (i) avoiding
> penalties under the Internal Revenue code, or (ii) promoting, marketing, or
> recommending to another party any transaction or matter addressed herein.*
> ****
>
> ****
>
> *From:*
cdcbaa@yahoogroups.com [mailto:
cdcbaa@yahoogroups.com] *On Behalf
> Of *Steven B. Lever
> *Sent:* Wednesday, November 16, 2011 1:23 PM****
>
>
> *To:*
cdcbaa@yahoogroups.com
> *Subject:* RE: [cdcbaa] Early IRA or 401K distributions as income on the
> means test****
>
> ****
>
> ****
>
> OK, so having read the *Cram* decision and the *Zahn* decision in the 8thCircuit BAP, overruling the trial court determination that IRA
> distributions are income; In re Zahn, 391 B.R. 840 (B.A.P. 8th Cir.,
> 2008) it appears that at least for Chapter 13s, as these were both 13s,
> that you DO NOT HAVE TO INCLUDE RETIREMENT DISTRIBUTIONS IN 22C. Since *
> Cram* is not binding, but in the 9th Circuit, and *Zahn* is not binding
> because in the 8th Circuit, that the aforementioned all capital letters
> rule holds for 13s, and would presumably be transferable logic in a Chapter
> 7 case using 22A. ****
>
> ****
>
> So it seems I can tell my retirement raiding client attempting a 7 that
> there is no problem. Is that right?****
>
> ****
>
> *From:*
cdcbaa@yahoogroups.com [mailto:
cdcbaa@yahoogroups.com] *On Behalf
> Of *Jim Selth
> *Sent:* Wednesday, November 16, 2011 11:15 AM
> *To:*
cdcbaa@yahoogroups.com
> *Subject:* RE: [cdcbaa] Early IRA or 401K distributions as income on the
> means test****
>
> ****
>
> ****
>
> See also *In re Cram*, 414 B.R. 674 (Bkrtcy. D.Idaho 2009):****
>
> ****
>
> The funds held in the Debtors 401(k) account were received as income
> when they were earned and deposited into that account, which the parties
> agree was in some unspecified period of time preceding the six-month CMI
> period. The subsequent distribution from the 401(k) during that six-month
> period is not income ... the debtor receives for purposes of
> 101(10A)(A).****
>
> ****
>
> Jim****
>
> ****
>
> James R. Selth****
>
> Certified Bankruptcy Specialist*****
>
> Weintraub & Selth, APC****
>
> 11766 Wilshire Boulevard, Suite 1170****
>
> Los Angeles, California 90025****
>
> Telephone: (310) 207-1494****
>
> Facsimile: (310) 442-0660****
>
> E-Mail:
jim@wsrlaw.net****
>
> ****
>
> *Certified by State Bar of California as Certified Legal Specialist in
> Bankruptcy Law****
>
> ****
>
> *From:*
cdcbaa@yahoogroups.com [mailto:
cdcbaa@yahoogroups.com] *On Behalf
> Of *P L
> *Sent:* Tuesday, November 15, 2011 3:20 PM
> *To:*
cdcbaa@yahoogroups.com
> *Subject:* Re: [cdcbaa] Early IRA or 401K distributions as income on the
> means test****
>
> ****
>
> ****
>
> See In re Zahn.****
>
> ****
>
> Peter M. Lively, JD, MBA****
>
> *The Personal Financial Law Center*****
>
> A-Bankruptcy-Attorney.com****
>
> Culver City (310) 391-2400****
>
> ****
>
> *From:* Steven B. Lever
> *To:*
cdcbaa@yahoogroups.com
> *Sent:* Tuesday, November 15, 2011 3:09 PM
> *Subject:* [cdcbaa] Early IRA or 401K distributions as income on the
> means test****
>
> ****
>
> OK, Ive postponed filing cases when early retirement distributions were
> received within the 6 month Means test window so that it fell off that time
> period in order to not trigger the 22A presumption, because I believe it is
> income that is counted. ****
>
> ****
>
> But now Im doubting these determinations because I have a case where I
> cannot wait and it will force me into a 13 instead of a Chapter 7. So I> putting it out there -- Is this income? ****
>
> ****
>
> If so, any way around it, such as giving it back it is within the
> timeframe to re-contribute (at the risk of a Dennis hyphenation demerit)
> it?****
>
> ****
>
> Steve ****
>
> ****
>
> Law Offices of Steven B. Lever****
>
> > ****
>
> > Steven B. Lever****
>
> >( Tel. (562) 436-5456 ext. 6470****
>
> >( Fax (800) 360-5161****
>
> >*
sblever@leverlaw.com****
>
> >
www.leverlaw.com****
>
> ****
>
> ****
> ------------------------------
>
> No virus found in this message.
> Checked by AVG -
www.avg.com
> Version: 10.0.1411 / Virus Database: 2092/4020 - Release Date: 11/16/11***
> *
>
> ** **
>
> ** **
>
> ****
>
>
>
The post was migrated from Yahoo.