Do You Get To Keep Your Tax Refunds in Bankruptcy?

Do You Get To Keep Your Tax Refunds in Bankruptcy?

The answer is generally yes! Many clients live paycheck‑to‑paycheck and find themselves running out of money for necessities and the end of each month and will need to keep all of their tax refunds. Some clients also receive large tax refunds each year because they receive Earned Income Credits and/or Additional Child Tax Credits. Most courts allow you to keep your Earned Income Credit and Additional Child Tax Credit.

Some clients also receive large tax refunds each year because they are over‑withholding from their paychecks (paying more than what is required). This problem would be compounded if your trustee requests you turn over all or a portion of your tax refunds. Some courts allow you to prorate the portion of your tax refund created from over-withholding and other credits in your monthly income (Schedule I) and then show why you need those funds to pay for living expenses (Schedule J). In general, if you can show that your prorated tax refunds and credits are necessary to pay for reasonable living expenses, the court will allow you to retain those funds.

While the answer to the above question is generally yes, it is best that you ask an experienced bankruptcy attorney this question because some courts have different rules, and the facts of your case may differ. Continue reading to learn how to adjust your withholdings so that you can increase your take‑home pay and reduce that portion of your tax refunds created by over‑withholding.

General Strategy For Filling Out A W‑4 Form

Below is some general information on how to maximize your take‑home pay and reduce any amount of your tax refund you may be required to turn over to the bankruptcy trustee.

Due to the changes that were made in the tax laws in 2019 and the changes that were made to the W‑4 withholding form in 2020, many people now mistakenly over-withhold their federal taxes. This causes an individual’s take-home pay to be less than it should be and results in an increased tax refund. This problem can be further compounded if your Trustee requests you turn over a portion of your tax refund. Filling out a new W‑4 form can result in increased take-home paychecks while slightly reducing your tax refund. It is recommended that you complete and submit to your employer an updated W‑4 form so that your employer can withhold the correct federal income tax payments.

IF YOU OWED TAXES LAST YEAR– If too little is withheld, you will generally owe tax when you file your tax return and may owe a penalty. Use Form W‑4 to increase and correct your withholding. That’ll help you owe less (or nothing) next year.

IF YOU GOT A REFUND LAST YEAR– Use Form W‑F to decrease your withholding. If too much is withheld, you will generally be due a refund, but you may be giving the government a free loan and could be needlessly living on less of your paycheck all year. Use Form W‑4 to reduce and correct your withholding.

IRS Tax Withholding Estimator

The IRS tax withholding estimator helps you identify your tax withholding to make sure you have the right amount of tax withheld from your paycheck.

If you have additional questions about your withholding, consult your employer or tax advisor.