Whether or not income taxes can be discharged in a bankruptcy will depend upon two main factors:
- Whether a timely, legitimate tax return was filed; and
- Whether it has been more than three years since the legitimate tax return was filed.
Generally speaking, there are three types of debt in a bankruptcy: unsecured debt (such as credit card debt), secured debt (such as a mortgage), and priority unsecured debt.
Taxes are considered priority unsecured debt, which makes them generally not dischargeable in bankruptcy.
To make a tax debt dischargeable in a bankruptcy, the tax return must be filed so that the time limits for the IRS to audit the return have run. For a legitimate, non-fraudulent return, that period is three years.
If the return contains false information and is therefore considered to be fraudulent, then the three year period does not run.
Unfortunately, some people in financial trouble do not file their taxes with the result that the three year statute of limitations has not run.
