Central District Consumer Bankruptcy Attorney's Association

biggest problems are probably tax issues. I don't; see anyone raising fraud
transfer claims on behalf of corp. besides as closely held corp, principals
were probably personally liable in any event. if any doubt, sign express
assumption of all corp debts.
David A. Tilem
Certified Bankruptcy Specialist*
Law Offices of David A. Tilem (a debt relief agency)
206 N. Jackson Street, #201, Glendale, CA 91206
Tel: 818-507-6000 Fax: 818-507-6800
* Bankruptcy specialist cert. by State Bar of CA Bd of Legal
Specialization.
Gerry McNally
Sent: Thursday, January 15, 2009 3:56 PM
To: cdcbaa@yahoogroups.com
Subject: RE: [cdcbaa] Re: It's 2009!
Dear Lou,
Re: The tools are in the corporation---along with 4170k of debt, and the
shareholder wants to file Ch7 individually
What if the corporation dissolves itself? The tools are now owned by the
shareholder(s), who also have responsibility for the debt. Any problems you
see with that, timing or otherwise?
Gerry
Gerald McNally
McNally & Associates, P.C.
206 N. Jackson St. #100
Glendale, CA 91206
818.507.5100
Message
biggest problems are
probably tax issues. I don't; see anyone raising fraud transfer claims on
behalf of corp. besides as closely held corp, principals were probably
personally liable in any event. if any doubt, sign express assumption of
all corp debts.


David A.
Tilem
Certified Bankruptcy
Specialist*
The post was migrated from Yahoo.

This double dipping issue related to tax refunds occurred to me as well. I
will send an email to Peter Anderson to get an official response.
David A. Tilem
Certified Bankruptcy Specialist*
Law Offices of David A. Tilem (a debt relief agency)
206 N. Jackson Street, #201, Glendale, CA 91206
Tel: 818-507-6000 Fax: 818-507-6800
* Bankruptcy specialist cert. by State Bar of CA Bd of Legal
Specialization.
Hale Andrew Antico
Sent: Monday, January 12, 2009 11:31 AM
To: cdcbaa@yahoogroups.com
Subject: RE: [cdcbaa] Re: It's 2009!
"...if the employer could have declined to pay any bonus and employment at
the time of the payment of the bonus was mandatory, do your homework ..."
Elmer - I'm confused. What's mandatory? Employment? How can that be?
Re: means test... bonuses factor into B22 Means Test analysis. If one comes
in during the month of filing, it need not be on the Means Test. I don't
know how a tax refund could be in B22, since the gross income for which the
refund came from was already looked at in B22. Counting it again would seem
to be double-dipping for the OUST.
Hale
_____

The post was migrated from Yahoo.

Lou,
Do you off hand have the Corp Code that calls for the liabilities of the dissolved corp to flow back to the shareholders?
Kenneth Jay Schwartz, Esq.
LAW OFFICE OF KENNETH JAY SCHWARTZ
21031 Ventura Boulevard, 12th Floor
Woodland Hills, California 91364-2203
Telephone: (818) 226-1205
Facsimile: (818) 226-1213
THE INFORMATION CONTAINED IN THIS E-MAIL IS INTENDED ONLY FOR THE PERSONAL AND CONFIDENTIAL USE OF THE DESIGNATED RECIPIENT(S) NAMED ABOVE. THIS MESSAGE MAY BE AN ATTORNEY-CLIENT COMMUNICATION, AND, AS SUCH, IS PRIVILEGED AND CONFIDENTIAL. IF THE READER OF THIS MESSAGE IS NOT THE INTENDED RECIPIENT OR AN AGENT RESPONSIBLE FOR DELIVERING IT TO THE DESIGNATED RECIPIENT, YOU ARE HEREBY NOTIFIED THAT YOU HAVE RECEIVED THIS E-MAIL IN ERROR, AND THAT ANY REVIEW, DISSEMINATION, DISTRIBUTION OR COPYING OF THIS MESSAGE IS STRICTLY PROHIBITED. IF YOU HAVE RECEIVED THIS COMMUNICATION IN ERROR, PLEASE NOTIFY US IMMEDIATELY. THANK YOU.
wrote:
> Subject: [cdcbaa] Re: It's 2009!
> To: cdcbaa@yahoogroups.com
> Date: Sunday, January 18, 2009, 5:00 PM
> Gerry,
>
> There may be accounting and tax issues arising from a
> corporate
> dissolution. Please review California Corporations Code on
> corporate
> dissolution and its requirements. I have had accountants
> advise
> clients to dissolve a corporation, and yes, under the
> Corporations
> Code the liabilities flow through to the shareholders.
> But, have
> client consult with their accountant or tax adviser to get
> tax advice,
> first, on dissolution issues.
>
> Lou
>
> --- In cdcbaa@yahoogroups.com, "Gerry McNally"
> wrote:
> >
> >
> >
> > Dear Lou,
> >
> >
> >
> > Re: The tools are in the corporation---along with
> 4170k of debt,
> and the
> > shareholder wants to file Ch7 individually
> >
> >
> >
> > What if the corporation dissolves itself? The tools
> are now owned
> by the
> > shareholder(s), who also have responsibility for the
> debt. Any
> problems you
> > see with that, timing or otherwise?
> >
> >
> >
> > Gerry
> >
> >
> >
> >
> >
> >
> >
> > Gerald McNally
> >
> > McNally & Associates, P.C.
> >
> > 206 N. Jackson St. #100
> >
> > Glendale, CA 91206
> >
> > 818.507.5100
> >

The post was migrated from Yahoo.

Gerry,
There may be accounting and tax issues arising from a corporate
dissolution. Please review California Corporations Code on corporate
dissolution and its requirements. I have had accountants advise
clients to dissolve a corporation, and yes, under the Corporations
Code the liabilities flow through to the shareholders. But, have
client consult with their accountant or tax adviser to get tax advice,
first, on dissolution issues.
Lou
>
>
>
> Dear Lou,
>
>
>
> Re: The tools are in the corporation---along with 4170k of debt,
and the
> shareholder wants to file Ch7 individually
>
>
>
> What if the corporation dissolves itself? The tools are now owned
by the
> shareholder(s), who also have responsibility for the debt. Any
problems you
> see with that, timing or otherwise?
>
>
>
> Gerry
>
>
>
>
>
>
>
> Gerald McNally
>
> McNally & Associates, P.C.
>
> 206 N. Jackson St. #100
>
> Glendale, CA 91206
>
> 818.507.5100
>

The post was migrated from Yahoo.

Dear Lou,
Re: The tools are in the corporation---along with 4170k of debt, and the
shareholder wants to file Ch7 individually
What if the corporation dissolves itself? The tools are now owned by the
shareholder(s), who also have responsibility for the debt. Any problems you
see with that, timing or otherwise?
Gerry
Gerald McNally
McNally & Associates, P.C.
206 N. Jackson St. #100
Glendale, CA 91206
818.507.5100

The post was migrated from Yahoo.

For example, no employment on March, say, 21, 2008, but employment from January 1, 2007 through March 20, 2008, no bonus for 2007 is payable when bonuses are paid on March 21.
Elmer Dean Martin III
P. O. Box 4670
Diamond Bar, CA 91765
909 861 6700
elmer@bankruptcytax.net

The post was migrated from Yahoo.

"...if the employer could have declined to pay any bonus and employment at
the time of the payment of the bonus was mandatory, do your homework ..."
Elmer - I'm confused. What's mandatory? Employment? How can that be?
Re: means test... bonuses factor into B22 Means Test analysis. If one comes
in during the month of filing, it need not be on the Means Test. I don't
know how a tax refund could be in B22, since the gross income for which the
refund came from was already looked at in B22. Counting it again would seem
to be double-dipping for the OUST.
Hale
_____

The post was migrated from Yahoo.

Because taxable income under IRC 1398 follows ownership of property under BC 541, I run into this issue a lot, most recently in a case involving an executive bonus received in March 2008. Filing was October 2007. The trustee last week accepted the settlement offer from the debtor, which was basically cost of litigation. Interesting issue. The rules are complex but their synthesis from the decisions is now pretty clear.
The rubber really meets the road when the issue involves a bonus which is discretionary with the employer and is paid after the end of the year of filing. Even though the bonus is nominally for services during the year of filing, if the employer could have declined to pay any bonus and employment at the time of the payment of the bonus was mandatory, do your homework regarding whether the bonus is property of the debtor and taxable income for the year after filing. The trustee can have a tough case if the employer gives you testimony you want.

The post was migrated from Yahoo.

Good point Dennis. Any filings planned between now and the time the
client intends to file tax returns must be accompanied by
consideration of whether the client is entitled to an exemption. If
possible, wait until after the refund is received (therefore
prepetition income - Means Test issues follow?), or exempt the refund
as part of the filing (still Means Test issues?)
Lou Esbin
>
> Elmer:
>
> Under, Fitzsimmons Fitzsimmons, In re, 725 F.2d 1208 (C.A.9 (Cal.),
1984) , the court differentiatedwhich income from the lawyer's
practice was 541a6 property as opposed to property of the estate. The
court held the actual work done by the lawyer postpetition was 541a6
propety, but not anything else.
>
> "To the extent that the law practice's earnings are attributable not
to FitzSimmons' personal services but to the business' invested
capital, accounts receivable, good will, employment contracts with the
firm's staff, client relationships, fee agreements, or the like, the
earnings of the law practice accrue to the estate"
>
>
>
>
>
> 3. In re Carson, 82 B.R. 847 (Bankr.S.D.Ohio, 1987)
> November 2, 1987
> ...created by 541(a)(6) was intended to be a very narrow and
specific exception to the otherwise all-inclusive definition Page 852
of property of the estate contained in 541(a). In re Fitzsimmons, 20
B.R. 237, 239 (9th Cir.BAP 1982). Thus, the bankruptcy courts which
have been called upon to interpret the earnings exception of
541(a)(6) have held that the decisive factor in determining whether
sums of money received post-petition constitute property of the estate
is whether such income accrues from post-petition services. In re
Palmer, 57 B.R. 332 at 334 (from fastcase)
>
> Now that it is 2009, any tax refund from 2008 has alreadybeen
earned and is property of the estate, just like Fitzsimons prepetiton
work. As a result, it can be exempted under the wildcard.
>
> dennis
>
> --- On Mon, 1/5/09, Elmer Martin wrote:
>
> Subject: Re: [cdcbaa] It's 2009!
> To: cdcbaa@yahoogroups.com
> Date: Monday, January 5, 2009, 4:29 PM
>
>
>
>
>
>
>
> Why is apostpetitionincome tax refund for a prepetition year exempt?
>
>
>
>
>
>

The post was migrated from Yahoo.

Elmer:
Under, Fitzsimmons Fitzsimmons, In re, 725 F.2d 1208 (C.A.9 (Cal.), 1984) , the court differentiatedwhich income from the lawyer's practice was 541a6 property as opposed to property of the estate. The court held the actual work done by the lawyer postpetition was 541a6 propety, but not anything else.
"To the extent that the law practice's earnings are attributable not to FitzSimmons' personal services but to the business' invested capital, accounts receivable, good will, employment contracts with the firm's staff, client relationships, fee agreements, or the like, the earnings of the law practice accrue to the estate"
3. In re Carson, 82 B.R. 847 (Bankr.S.D.Ohio, 1987)
November 2, 1987
...created by 541(a)(6) was intended to be a very narrow and specific exception to the otherwise all-inclusive definition Page 852 of property of the estate contained in 541(a). In re Fitzsimmons, 20 B.R. 237, 239 (9th Cir.BAP 1982). Thus, the bankruptcy courts which have been called upon to interpret the earnings exception of 541(a)(6) have held that the decisive factor in determining whether sums of money received post-petition constitute property of the estate is whether such income accrues from post-petition services. In re Palmer, 57 B.R. 332 at 334 (from fastcase)
Now that it is 2009, any tax refund from 2008 has alreadybeen earned and is property of the estate, just like Fitzsimons prepetiton work. As a result, it can be exempted under the wildcard.
dennis

The post was migrated from Yahoo.