I am currently in personal bankruptcy. I also have a very large operating loss carryback available to me from a subchapter corporation. I do not want to file amended 1040's for 2010, 2009, 2008 & 2007 until my bankruptcy is discharged so that I can keep the tax refunds that will be forthcoming. The questions are : 1) Can the IRS take some kind of administrative action to file these return for me now so that the US Trustee gets the refunds....and 2) If the IRS cannot or do not file the amended can the US Trustee either force me to file the amended returns or file them on my behalf.
I also have a third question....if the amended returns are not filed by anyone until the bankruptcy is discharged...can the US Trustee come clawback the refunds later claiming that they were part of the estate during the bankruptcy ?
1 Answer from Attorneys
If those refunds are owed to you now, then they are property of the estate, whether you claim them or not. It's best that you DO claim them, since failure to do so violates bankruptcy law.
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