The government ordinarily cannot offset a tax refund against a debt owing to another agency without violating the automatic stay, according to a district judge in Abingdon, Va.
District Judge James P. Jones said in his Jan. 19 opinion that lower courts are split on the issue.
An individual filed a chapter 7 petition owing $80,000 to the Department of Agriculture as a deficiency following the foreclosure of his home. After bankruptcy, he filed a tax return showing a $9,000 refund.
Using the Treasury Offset Program under 26 U.S.C. § 6402(d)(1), the IRS notified the debtor that it was offsetting the refund against the debt to the Agriculture Department. The bankruptcy judge found a violation of the automatic stay, and Judge Jones agreed.
The district judge quoted Section 362(b)(26), which says the automatic stay does not preclude offsetting an income tax refund by a governmental unit “against an income tax liability.” He interpreted the subsection to mean that Congress intended “to preclude the offset of non-income tax liabilities.”
For Judge Jones, Section 6402 did not carry the day. He said that section applies only after a federal agency gives notice of setoff. If bankruptcy comes before notice, the automatic stay kicks in, barring the government from effecting setoff, he held.
If bankruptcy precedes notice of setoff, “the government must be treated like any other creditor of the debtor,” Judge Jones said.