Tax Refunds, Retirement Deductions and the Means Test

Tax Refunds, Retirement Deductions and the Means Test

Debtors are not entitled to a deduction for Mr. Stanley’s monthly
repayments of their retirement loan. The majority of courts that have considered whether debtors are allowed deductions for loan repayments on their retirement savings plans have found that no such deduction should be allowed. The [South Carolina] Court agrees with the majority approach. In re Stanley

Debtors also omitted their substantial tax refund of from the calculation. Debtors over-withheld. Debtors have recently been informed they owe Debtors should be given a credit for this repayment obligation; however, this credit will have a minimal impact on Debtor’s monthly disposable income. With the addition of Debtors’ tax refund, Debtors have monthly disposable income. In re Stanley

Regarding retirement loan repayments.
The [South Carolina} Court adopts the first, narrower interpretation of section 707(b)(2)(B) as the better approach, which is consistent with the statutory scheme and encourages chapter 13 filings, requiring that the additional expense or decrease in income be extraordinary in some way. In re Siler, 426 B.R. 167, 172 (Bankr. W.D.N.C. 2010). Under this approach, rebuttal of the presumption of abuse under section 707(b)(2) appears to be a two step process. First, a debtor must show that some sort of special circumstances exist, such as a serious medical condition or “a call or order to active duty in the Armed Forces.” 11 U.S.C. § 707(b)(2)(B); Siler, 426 B.R. at 172. Next, the debtor must show that these special circumstances leave him with “‘necessary and reasonable’ expenses ‘for which there is no reasonable alternative.’” Siler, 426 B.R. at 172 (quoting In re Tauter, 402 B.R. 903 (Bankr. M.D. Fla. 2009)). In re Stanley