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Publication 908
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IntroductionThis publication covers the federal incometax aspects of bankruptcy. Bankruptcy proceedingsbegin with the filing of a petition with thebankruptcy court. The filing of the petitioncreates a bankruptcy estate, which generallyconsists of all the assets of the person filingthe bankruptcy petition. A separate taxable entityis created if the bankruptcy petition is filed byan individual under chapter 7 or chapter 11 of theBankruptcy Code. These chapters areexplained later.The tax obligations of taxable estates arediscussed later under The BankruptcyEstate. The tax obligations of the person filing abankruptcy petition (the debtor) varydepending on the bankruptcy chapter under whichthe petition was filed. For individuals, these arealso explained in the first part of thispublication. For other entities,see Partnerships andCorporations, later. Generally, when a debt owed to another iscanceled the amount canceled or forgiven isconsidered income that is taxed to the personowing the debt. If a debt is canceled under abankruptcy proceeding, the amount canceled is notincome. However, the canceled debt reduces theamount of other tax benefits the debtor wouldotherwise be entitled to.See Debt Cancellation, later. This publication is not intendedto cover bankruptcy law in general, or to
providedetailed discussions of the tax rules for the morecomplex corporate bankruptcy
reorganizations orother highly technical transactions. In thesecases, you should seek
competent professionaladvice. Useful ItemsYou may want to see: Publication
Form (and Instructions)
See How To Get MoreInformation, near the end of this publicationfor information about getting these publicationsand forms. Individuals in Chapter 12 or 13A separate estate, for tax purposes, is notcreated for an
individual who files a petitionunder Chapter 12 or 13 of the Bankruptcy Code.You, the
individual, should continue to file thesame federal income tax return that was filedprior
to the bankruptcy petition. On your return, report all income receivedduring the entire year and deduct all allowableexpenses. Do not include any debt canceled(because of bankruptcy) in income on your return.However, you must reduce (to the extent that you have)certain losses, credits or basis in property bythe amount of canceled debt.See Debt Cancellation, later. For information about determining the amount oftax due and paying tax, see TaxProcedures, later. Note: Interest on trust accounts in Chapter 13 proceedings. If you
are an individual debtor in a chapter 13 wage earner's plan, do not include as income
onyour return interest earned on amounts held intrust accounts while awaiting distribution
to yourcreditors. This interest is not available eitherto you or to your creditors. It is
available only to the trustees, and is taxable to the trustee as his or her individual
income. Individuals in Chapter 7 or 11If you are an individual debtor who files forbankruptcy under chapter 7 or 11 of the BankruptcyCode, a separate estate is createdconsisting of property that belonged to you before the filing date. This bankruptcy estate is a newtaxable entity, completely separate from you as anindividual taxpayer. If a husband and wife file a joint bankruptcypetition and their estates are jointly
administered,treat their estates as separate entitiesfor tax purposes. Two separate tax
returnsmust befiled (if they separately meet the filingrequirements). The estate, under a chapter 7proceeding, is represented by a trustee. Thetrustee is appointed by the bankruptcy court toadminister the estate and liquidate your nonexemptassets.In chapter 11, the debtor remains incontrol of the assets as adebtor-in-possession. However, sometimesthe bankruptcy court will appoint a trustee in achapter 11 case. In this case, thedebtor-in-possession must turn over to the trusteecontrol of the debtor's assets and operations. The estate may produce its ownincome as well as incur its own expenses.See The
Bankruptcy Estate, later.The creation of a separate bankruptcy estate also gives you
afresh start -with certain exceptions,wages you earn and property youacquire
after the bankruptcy case has begun belong to you and do not become apart of the
bankruptcy estate. If your bankruptcy case began but was laterdismissed by the bankruptcy court, the
estate isnot treated as a separate entity, and you aretreated as if the bankruptcy
petition had neverbeen filed in the first place. File amendedreturns on Form 1040X to
replace any returns youpreviously filed. Include on any amended returnsitems of income,
deductions, or credits that wereor would have been reported by the bankruptcyestate on its
returns and were not reported onreturns you previously filed. However, you may notbe able
to deduct administrative expenses the formerestate could have claimed. Also, the
bankruptcyexclusion cannot be used to exclude debt that wascanceled while you were under
the bankruptcy court'sprotection. But the other exclusions (such asinsolvency) may apply. Responsibilities of the Individual DebtorYou, as the individual debtor, generallymust file income tax returns during the
periodof the bankruptcy proceedings. Do not include onyour return, the income, deductions,
or creditsbelonging to the separate bankruptcy estate.Also do not include as income on
your return,the debts canceled because of bankruptcy. However,the bankruptcy estate must
reduce certain losses,credits, and the basis in property (to the extentof these items) by
the amount of canceled debt.See DebtCancellation, later. You have the option of ending your tax year onthe day before you filed your bankruptcy
petition.This allows the tax dueon that short period return to be a claimagainst the
bankruptcy estate.See Electionto End Tax Year, later. See Tax Procedures, later,for information about determining and payingthe amount of tax due. Tax attributes. Certain deduction and credit carryovers anddecisions that you made in earlier years are takenover by the bankruptcy estate when you file forbankruptcy. These include carryovers ofdeductions, losses, and credits, your method ofaccounting, and the basis and holding period ofassets. These are referred to as tax attributes. When the estate is terminated, you assume anyremaining tax attributes that were taken
over bythe estate and generally assume any attributes arisingduring the administration of
the estate.See Attribute carryovers, laterunder The Bankruptcy Estate, fora
list of attributes. Also, see Administrativeexpenses under The
BankruptcyEstate for a limitation. Disclosure of return information. The
bankruptcy estate's income tax returnsare open, upon written request, to inspection
byor disclosure to you the individual debtor. Thedisclosure is necessary so that you can
properlyfigure the amount and nature of the taxattributes, if any, that you must assume
when thebankruptcy estate is terminated. In addition, your income tax returns for theyear the bankruptcy case begins and for
earlieryears are open to inspection by or disclosure tothe bankruptcy estate's trustee.See
Disclosure of returninformation, later, under TheBankruptcy Estate. Transfer of assets to the estate. Bankruptcy law determines which of your assetsbecome part of the bankruptcy estate. Generally,all of your legal and equitable interests becomeproperty of the estate. However, you mayexempt certain property fromthe estate. A transfer (other than by sale or exchange) ofan asset from you to the bankruptcy
estate is nottreated as a disposition for income taxpurposes. This means that the
transfer does notresult in gain or loss, recapture of deductionsor credits, or
acceleration of income ordeductions. For example, the transfer of aninstallment obligation
to the estate would notaccelerate gain under the rules for reportinginstallment sales. If you receive any assets from the bankruptcyestatewhen it terminates, do not treat the
transfer as ataxable disposition. You treat these assets the sameas the bankruptcy estate
would have treated them.This includes using the same basis, holding period,and character
of the assets as the bankruptcy estatedid before it was terminated. Abandonments. If you
receive abandoned property from the estate,you receive the same basis in the
property that theestate had. Carrybacks from your activities. As
the individual debtor, you cannot carry backany net operating loss or credit
carryback from a taxyear ending after the bankruptcy case has begun to anytax year ending
before the case began. Theestate, however, can carry the loss back to offsetyour
pre-bankruptcy income. Election to End Tax YearIf you are an individual debtor and have assets(other than those
you exempt from the bankruptcyestate), you may choose to end your taxyear on the day
before the filing of yourbankruptcy case. Then your tax year is dividedinto 2 short
tax years of fewer than 12months each. The first year ends on the day beforethe filing
date, and the second year begins withthe filing date and ends on the date your tax
yearnormally ends. Once you make this choice, you maynot change it. Any income
taxliability for the first short tax year becomes anallowable claim (as a claim arising
beforebankruptcy) against the bankruptcy estate. If thistax liability is not paid in the
bankruptcyproceeding, the liability is not canceled becauseof bankruptcy and it can be
collected from you asan individual. If you do not choose to end the tax year,then no part of your tax liability for the
year inwhich bankruptcy proceedings begin can becollected from the estate. Making the election. If you choose to end yourtax year, you do so by
filing a return on Form1040 for the first short tax year on or before the15th day of the
fourth full month after the end ofthat first tax year. John Doe files a bankruptcypetition on July 10. To have a timely filedelection, he must file Form 1040 (or anextension) for the period January 1 throughJuly 9 by November 15. To avoid delays in processingthe return, write Section 1398Election at the top
of the return. You mayalso make the election by attaching a statementto an application for
extension of time to filea tax return (Form 4868 or other). Thestatement must say that you
chooseunder section 1398(d)(2) to close your taxyear on the day before the filing of
thebankruptcy case. You must file the applicationfor extension by the due date of the
return forthe first short tax year. If your spouse decidesto also close his or her
taxyear, see Election by debtor'sspouse, next. Election by debtor's spouse. If
you aremarried, your spouse may also join in the choiceto end the tax year, but
only if you and yourspouse file a joint return for the first short taxyear. You must make
these choices by the due datefor filing the return for the first short taxyear. Once you
make the choice, it cannot berevoked for the first year; however, the choicedoes not mean
that you and your spouse must file ajoint return for the second short tax year. Later bankruptcy of spouse. If your spouse files for
bankruptcy later inthe same year, he or she may also choose to endhis or her tax year,
regardless of whether he orshe joined in the choice to end your tax year.Because each of
you has a separate bankruptcy, oneor both of you may have 3 short tax years in thesame
calendar year. If your spouse had joined inyour choice, or if you had not made the choice
toend your tax year, you can join in your spouse'schoice. But if you had made an election
and yourspouse did not join in the election, you cannotjoin in your spouse's later
election. This isbecause you and your spouse, having different taxyears, could not file a
joint return for a yearending on the day before your spouse's filing ofbankruptcy. Paul and Mary Harris arecalendar-year taxpayers. A voluntary chapter 7bankruptcy case involving only Paul begins onMarch 4. If Paul does not make an election, his tax yeardoes not end on March 3. If he does make
anelection, Paul's first tax year isJanuary 1-March 3, and his second short taxyear begins
on March 4.Mary could join in Paul's election as long as theyfile a joint return for the
tax year January1-March 3. They must make the election byJuly 15, the due date for filing
the joint return. Fred and Ethel Barnes arecalendar-year taxpayers. A voluntary chapter 7bankruptcy case involving only Fred begins onMay 6, and a bankruptcy case involving only Ethelbegins on November 1 of the same year. Ethel could choose to end her tax year onOctober 31. If Fred had not elected to end his taxyear on May 5, or if he had elected to do so butEthel had not joined in his election, Ethel wouldhave 2 tax years in the same calendar year if shedecided to close her tax year. Her first tax yearis January 1-October 31, and her second year isNovember 1-December 31. If Fred had not decided to end his tax year asof May 5, he could join in Ethel's choice
to closeher tax year on October 31, but only if they filea joint return for the tax
yearJanuary 1-October 31. IfFred had elected to end his tax year on May 5, butEthel had
not joined in Fred's choice, Fred couldnot join in Ethel's choice to end her tax year
onOctober 31, because they could not file a jointreturn for that short year. They could
not file ajoint return because their tax years precedingOctober 31 were not the same. Jack and Karen Thomas arecalendar-year taxpayers. A voluntary chapter 7bankruptcy case involving only Karen begins onApril 10, and a voluntary chapter 7 bankruptcycase involving only Jack begins on October 3 ofthe same year. Karen chooses to close her tax yearon April 9 and Jack joins in Karen's choice. Under these facts, Jack would have 3 taxyears for the same calendar year if he makes theelection relating to his own bankruptcy case. Thefirst tax year would be January 1-April 9; thesecond April 10-October 2; and the thirdOctober 3-December 31. Karen may (but does not have to) join in Jack'selection if they file a joint return for thesecond short tax year (April 10-October 2). IfKaren does join in, she would have the same 3short tax years as Jack. Also, if Karen joins inJack's election, they may file a joint return forthe third tax year (October 3-December 31), butthey are not required to do so. Annualizing taxable income. If
you choose toclose your tax year, you must annualize yourtaxable income for each
short tax year the sameway it is done for a change in an annualaccounting period.See Short
Tax Year inPublication 538, AccountingPeriods and Methods, for information
on howto annualize your income and how to figure yourtax for the short tax year. Filing requirement. If you elect to end yourtax year on the day before filing the bankruptcycase, you must file the return for the first shorttax year as explainedearlier under Making the election. If you make this election, you mustalso file a separate Form 1040 for thesecond short
tax year by the regular due date. Youshould note on the return that it is the Second
Short Year Return After Section1398 Election. If the bankruptcy case is later dismissed,you (the debtor) must file an amendedreturn
to replace any full or short year returnsthat you filed. Attach a statement to any
amendedreturn you file explaining why you are filing anamended return. In this situation,
no bankruptcyestate is created for tax purposes. Income thatwas or would be reported by
the bankruptcy estatemust be reported on your return. The Bankruptcy EstateThe filing of a bankruptcy petition for anindividual debtor under chapter 7 or chapter 11of the bankruptcy code creates a separate taxablebankruptcy estate. The trustee (for chapter 7cases) or the debtor-in-possession (forchapter 11 cases) is generally responsible forpreparing and filing theestate's tax returns and paying its taxes.The debtor remains responsible for filing returnsand paying taxes on any income that does notbelong to the estate. If a bankruptcy case begins, but later isdismissed by the bankruptcy court, the estate
isnot treated as a separate taxable entity. If taxreturns have been filed for the estate,
amendedreturns must be filed to move income anddeductions from the estate's returns to
thedebtor's returns. If no returns have been filed,report all income and deductions on the
debtor'sreturns. The following discussions provide taxinformation for the bankruptcy estate. Treatment of income,deductions, and credits. The gross income of the
bankruptcy estateincludes any of the debtor's gross income to whichthe estate is entitled
under the bankruptcy law.The estate's gross income alsoincludes any income the estate
isentitled to and receives or accrues after thebeginning of the bankruptcy case.Gross
income of the bankruptcy estate does notinclude amounts received or accrued by the
debtorbefore the bankruptcy petition date. The bankruptcy estate may deduct or take as acredit any expenses it pays or incurs, the
sameway that the debtor would have deducted orcredited them had he or she continued in the
sametrade, business, or activity and actually paid oraccrued the expenses. Allowable
expenses includeadministrative expenses, such as attorney fees andcourt costs. These are
discussed laterunder Administrative expenses. The bankruptcy estate figures its taxableincome the same way as an individual figures
hisor her taxable income. The estate can take onepersonal exemption and either
individual(itemized) deductions or the basic standarddeduction for a married individual
filing aseparate return. The estate cannot take the higherstandard deduction allowed for
married personsfiling separately who are 65 or older or blind.The estate uses the rates
for a marriedindividual filing separately to figure the tax onits taxable income. Transfer of assets between debtor and estate. Bankruptcy law determines which of thedebtor's assets become part of the
bankruptcyestate. These assets are treated the samein the estate's hands as they were in
the debtor'shands. A transfer (other than by sale or exchange) ofan asset from the debtor to the
bankruptcy estateis not treated as a disposition for incometax purposes. This
means that the transfer doesnot result in gain or loss, recapture ofdeductions or credits,
or acceleration of incomeor deductions. For example, the transfer of aninstallment
obligation to the estate would notaccelerate gain under the rules for reportinginstallment
sales. The estate is treated the sameway the debtor would be regarding the
transferredasset. When the bankruptcy estate is terminated, thatis, dissolved, any resulting transfer
(other thanby sale or exchange) of the estate's assets backto the debtor is not treated as
a disposition.This transfer does not result ingain or loss, recapture of deductions or
credits,or acceleration of income or deductions to theestate. The abandonment of property by the estate to thedebtor is a nontaxable disposition of
property. Attribute carryovers. The
bankruptcy estate must treat its taxattributes the same way that the debtorwould
have treated them.These items must be determined as of the first dayof the debtor's tax
year in which the bankruptcycase begins. The bankruptcy estate gets thefollowing tax
attributes from the debtor:
Certain tax attributes of the estate must bereduced by any excluded income from cancellationof debt occurring in a bankruptcy proceeding.See Debt Cancellation, later. Termination of the estate. If the bankruptcyestate has any
tax attributes at the time it isterminated, they are assumed by the debtor. Passive and at-risk activities. For bankruptcy cases
beginning on or afterNovember 9, 1992, treat passive activity carryoverlosses and credits
and unused at-risk deductionsas tax attributes that the debtor passes to thebankruptcy
estate and the estate passes back tothe debtor when the estate terminates.Additionally,
transfers to the debtor (otherthan by sale or exchange) of interests in passiveor at-risk
activities are treated as exchangesthat are not taxable. These transfers include thereturn
of exempt property to the debtor and theabandonment of estate property to the debtor. Cases beginning before November 9, 1992. If a bankruptcy
case begins beforeNovember 9, 1992, and ends on or after that date,the debtor and the
trustee for an individualchapter 7 case (the debtor-in-possession for anindividual chapter
11 case) can elect to havethese provisions apply. In a chapter 7 case, theelection is made
jointly by the debtor and thetrustee of the bankruptcy estate. In achapter 11 case,
theelection is incorporated in the bankruptcy plan.See IRS regulations 1.1398-1
and1.1398-2 for moreinformation on how to make this election. Administrative expenses. The
bankruptcy estate is allowed a deductionfor administrative expenses and any fees
orcharges assessed it. These expenses aregenerally deductible as itemized
deductionssubject to the 2% floor on miscellaneous itemizeddeductions. However,
administrative expensesattributable to the conduct of a trade or businessby the bankruptcy
estate or the production of theestate's rents or royalties are deductible inarriving at
adjusted gross income. The expenses are subject todisallowance under other provisions of theInternal Revenue
Code, such as disallowingcertain capital expenditures, taxes, or expensesrelating to
tax-exempt interest. These expensescan only be deducted by the estate, and never bythe
debtor. If the administrative expenses of thebankruptcy estate are more than its gross
incomefor the tax year, the excess amount may be carriedback 3 years and forward 7 years.
The amountscan only be carried back or forward to a tax yearof the estate and never to the
debtor's tax year.The excess amount to becarried back or forward is treated like a
netoperating loss and must first be carried back tothe earliest year possible. For a
discussion ofthe net operating loss,see Publication 536, Net OperatingLosses. Change of accounting period. The bankruptcyestate may change its
accounting period (tax year)once without getting approval fromthe Internal Revenue
Service. This rule allows thetrustee of the estate to close the estate's taxyear early,
before the expected termination ofthe estate. The trustee can then file a return forthe
first short tax year to get a quickdetermination of the estate's tax liability. Carrybacks from the estate. If
the bankruptcyestate itself has a net operating loss, separatefrom any losses
passing to the estate from thedebtor under the attribute carryover rules, thebankruptcy
estate can carry the loss back not onlyto its own earlier tax years but also to
thedebtor's tax years before the year the bankruptcy case began. The estate may also
carryback excess credits, such as the general businesscredit, to the pre-bankruptcy years.
Return RequirementsThe trustee (or debtor-in-possession) must filean income tax return
on Form 1041, U.S.Income Tax Return for Estates and Trusts if theestate has gross
income that meets or exceeds theamount required for filing. This amount is thetotal of the
personal exemption amount and thebasic standard deduction for a married individualfiling
separately. See the Form 1041instructions for the current year's amount. If a return is required, the trustee (ordebtor-in-possession) completes
theidentification area at the top of the Form 1041and lines 23-29 and signs and dates
it.Form 1041 is a transmittalfor Form 1040, U.S. Individual IncomeTax Return. Complete
Form 1040 and figurethe tax using the tax rate schedule for amarried person filing
separately. In the topmargin of Form 1040, write Attachment toForm 1041. DO NOT
DETACH. AttachForm 1040 to the Form 1041. The filing of a tax return for thebankruptcy estate does not relieve the individualdebtor of his or her tax filingrequirement. Estimated tax. The trustee or
debtor-in-possession must payestimated tax (if any is due) for the
bankruptcyestate. See the Instructions to Form1041-ES, Estimated Income Tax
forFiduciaries, for informationregarding the dollar limits and exceptions tofiling
Form 1041-ES and paying estimatedtax. Employer identification number. The
trustee (or debtor-in-possession) mustobtain an employer identification number
(EIN) fora bankruptcy estate if the estate must file anyform, statement, or document with
the IRS. Thetrustee uses this EIN onany tax return filed for the bankruptcy
estateincluding estimated tax returns. The trustee canobtain an EIN for a bankruptcy
estate by filingForm SS-4, Application for EmployerIdentification Number. Form
SS-4 isavailable at IRS or Social Security Offices.Trustees representing ten or more
bankruptcyestates (other than estates that will befiling employment or excise tax returns)
mayfile a consolidated application to obtain blocksof ten or more EINs by following the
proceduresset out in RevenueProcedure 89-37, 1989-1 C.B. 919. The social security number of theindividual debtor cannot be used as theEIN for the bankruptcy estate. Employment taxes. The trustee (or debtor-in-possession)must withhold income and social security taxesand file employment tax returns forany wages paid by the trustee (or debtor),including wage claims paid as administrativeexpenses. Until these employment taxes aredeposited as required by the Internal RevenueCode, they should be set apart in a separate bankaccount to ensure that funds are available tosatisfy the liability. If the employment taxes arenot paid as required, the trustee may be heldpersonally liable for payment of the taxes.See Publication 15,Circular E,Employer's Tax Guide, for detailson employer tax responsibilities. The trustee has the duty to prepare and fileForms W-2, Wage and TaxStatement, in
connection with wage claimspaid by the trustee, regardless of whether theclaims accrued
before or during bankruptcy. Ifthe debtor fails to prepare and file FormsW-2 for wages
paid before bankruptcy, thetrustee should instruct the employees to file anIRS Form 4852, SUBSTITUTE
FOR FORMW-2, WAGE AND TAX STATEMENT OR FORM1099R, DISTRIBUTIONS FROM PENSIONS,
ANNUITIES,RETIREMENT OR PROFIT-SHARING PLANS, IRA'S,INSURANCE CONTRACTS, ETC., with
theirindividual income tax returns. Disclosure of return information. The debtor's income tax returns for the yearthe bankruptcy case begins
and for earlier yearsare, upon written request, open to inspectionby or disclosure to the
trustee.If the bankruptcy case was not voluntary,disclosure cannot be made before the
bankruptcycourt has entered an order for relief, unlessthe court rules that the disclosure
is needed fordetermining whether relief should be ordered. For information concerning the disclosure ofthe bankruptcy estate's tax returnsee Disclosure of returninformation, earlier, under Responsibilities of theIndividual Debtor. - Continue - |