ROBERT E. MCKENZIE, ESQ.ARNSTEIN & LEHR

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ROBERT E. MCKENZIE, EA, ATTORNEY ARNSTEIN & LEHRSUITE 1200120 SOUTH RIVERSIDE PLAZACHICAGO, ILLINOIS 60606(312) 876-7100

(Sec. 101) Amends Federal bankruptcy law to revamp guidelines governing dismissal or conversion of a Chapter7 liquidation (complete relief in bankruptcy), to one under either Chapter 11 (Reorganization), or Chapter 13(Adjustment of Debts of an Individual with Regular Income). Permits the bankruptcy court to convert a Chapter7 case to either Chapter 11 or 13 with a debtor's consent. (Prior law required the debtor's request for such aconversion.)

The new bankruptcy reform was signed into law by the president in April, 2005. It become effective on October17, 2005. . Generally families earning more than the state median, $72,742 in Illinois, will be will face huge

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roadblocks to filing a Chapter 7 bankruptcy on consumer debts and only be allowed to file Chapter 13. Prior toseeking the protection of bankruptcy debtors will be required to pay for debt counseling as a first step. Thefollowing is brief summary of the major tax related provisions of the act.

Debtors are required to use modified IRS expense guidelines in most cases to determine their ability to makepayments pursuant a Chapter 13 plan. (Sec. 103) Expresses the sense of Congress that the Secretary of theTreasury has the authority to alter Internal Revenue Service (IRS) standards established to set guidelines forrepayment plans as needed to accommodate their use under the Bankruptcy Code. Instructs the Director of theExecutive Office for U.S. Trustees to report to certain congressional committees regarding the use of IRSstandards for determining specified monthly debtor expenses and the impact of such standards upon debtors andthe bankruptcy courts.

Under the means test, a Chapter 7 filing is presumed to be abusive if the debtor’s monthly income, reduced bynumerous allowances and living expenses (discussed below), and multiplied by 60 (that is, over a five-yearperiod), is greater than $10,000. If income thus adjusted is less than $6,000, there is no presumption of abuse,and the debtor is free to choose Chapter 7. If adjusted income is between $6,000 and $10,000, abuse is presumedonly if income exceeds 25% of nonpriority, unsecured debt in the case. An abusive Chapter 7 filing is subject todismissal or conversion.

A key determinant in whether a debtor passes the means test is the amount by which actual monthly income isreduced by various allowances and living expenses. The law sets out several categories of allowable monthlyexpenses. Debtors’ monthly expenses are calculated primarily by referring to a set of allowances established bythe Internal Revenue Service (IRS) that are used to help determine a taxpayer’s ability to pay a delinquent taxliability. The allowances, which the IRS calls Collections Financial Standards, set out monthly living expenses inthree basic categories: (1) food, clothing, and other items; (2) housing and utilities; and (3) transportation. Theallowable living expenses are subject to several variables. The U. S. Trustee's office has chosen to modify theIRS standards to provide for greater flexibility.

In the food, clothing, and other category, the IRS sets out living expenses that vary according to the size of thehousehold and gross monthly income. For example, a single person with a gross income of $/month would beallowed $856 in living expenses, while a family of four earning $5,834/month would be allowed $1,546 forexpenses in this category. These amounts are national standards — uniform across the contiguous 48 states —except that higher schedules are provided for Alaska and Hawaii. The allowance for housing and utilities variesaccording to size of household and geographical location.

The standards provide separate dollar figures for each county in the nation, for households of one or two, three,and four or more persons. A single person living in Glenn County, California , would be allowed to deduct$573/month, while a family of four in Marin, California would be allowed $2446.

The transportation standards provide regional allowances, with variations for persons living in any of 28specified metropolitan areas. Allowable living expenses include ownership costs ($475 for one car, an additional$338 for a second car) and operating costs (or public transportation costs, for those with no car). Operating orpublic transportation allowances range from relatively low for non-driving individuals using public transportationto high of $479 for New York City residents with two cars. These allowances are not reduced if a bankruptcypetitioner’s actual expenditures are less than the standard. In some cases, the IRS recognizes actual expensesthat exceed the standards; under the reform act, a debtor’s monthly expenses may include actual expenses.

Beyond the IRS allowances, the bankruptcy reform law permits current income to be reduced by several othertypes of expenses. Monthly expenses for purposes of the means test may include:

1. reasonable and necessary spending to care for an elderly, chronically ill, or disabled member of the debtor’simmediate family or household;

2. reasonably necessary expenditures for health insurance, disability insurance, and health savings accounts;

3. actual expenses for the primary or secondary education of a dependent child (under age 18), up to $1,500per child per year;

4. home energy costs in excess of the IRS housing and utility standards, with proper documentation andjustification;

5. average monthly payments on secured debts (most commonly home mortgages and car loans);

6. average monthly payments on priority claims (e.g., child support, student loans, alimony, etc.);

7. reasonable and necessary expenses to maintain the safety of the debtor’s family from family violence, asidentified under Section 309 of the Family Violence Prevention and Services Act;8 and

8. administrative costs incurred in a Chapter 13 bankruptcy plan.

Finally, a debtor may claim higher monthly expenses if special circumstances exist that require additionalexpenditures. To establish special circumstances, the debtor must itemize such expenses and explain in detailwhy each of them is reasonable and necessary. Given the number of factors that may reduce monthly income forpurposes of the bankruptcy means test, it is clear that simple gross income is not a good indicator of whether adebtor will be allowed to file Chapter 7.The U. S. Trustee's office has chosen to be much more flexible inapplying the standards than the IRS. Other provisions of the reform legislation address this potential disparity bycreating safe harbors for lower income individuals and households.

Under P.L. 109-8, a motion must be filed in bankruptcy court to dismiss or convert a Chapter 7 petition. Whomay bring such a motion depends on the debtor’s income. The law provides that if the debtor’s income exceedsthe median family income (adjusted for household size) as calculated by the Bureau of the Census for theapplicable state, any party in interest, including a creditor, may bring an abuse motion under section 707(b).

If the income of the debtor (or debtor and spouse, in a joint filing) is less than or equal to the median familyincome (taking household size into account) for the applicable state, only the judge or a bankruptcy trustee oradministrator may file a motion to dismiss or convert a Chapter 7 petition.

If the combined income of the debtor and the debtor’s spouse is equal to or less than the state median income for

a single-earner household (again adjusted for household size), no motion to dismiss or convert may be filed. Inaddition, P.L. 109-8 creates an exemption from means testing for disabled veterans whose debts were incurredwhile they were on active duty or performing a homeland defense activity.

(Sec. 102) Permits the court upon its own motion, or upon the motion of the bankruptcy trustee, bankruptcyadministrator, or any party in interest, to move for a dismissal. (Current law prohibits a party in interest fromentering such motions.)

Lowers the "substantial abuse" standard for dismissal or conversion to one of simple abuse. Replaces thepresumption in favor of granting the relief sought by the debtor with a presumption that abuse exists if thedebtor's current monthly income exceeds an amount determined according to specified formulae. (About$46,000 in Illinois)

Includes within the calculation of debtor's monthly expenses:

1. reasonably necessary expenses incurred to maintain the safety of the debtor and the debtor's family fromfamily violence as identified under the Family Violence Prevention and Services Act;

2. continuation of actual expenses paid by the debtor for the care and support of an elderly, chronically ill, ordisabled household or non-dependent immediate family member; and

3. an additional allowance for housing and utilities based upon documented home energy expenses.

Provides that the presumption of abuse may only be rebutted with detailed documentation of specialcircumstances requiring additional expenses or adjustment of current monthly total income for which there is noreasonable alternative.

Requires the debtor's counsel to reimburse the bankruptcy trustee for legal fees in prosecuting a dismissal orconversion motion if the court finds that counsel's filing under Chapter 7 was in violation of certain bankruptcyrules.

Requires the court, upon motion by the victim of a crime of violence or a drug trafficking crime (or at therequest of a party in interest), to dismiss a voluntary case filed by an individual debtor convicted of that crime(unless the debtor establishes that filing of the case is necessary to satisfy a claim for a domestic supportobligation).

Redefines "disposable income" of a chapter 13 debtor to exclude a domestic support obligation that firstbecomes payable after the date the petition is filed.

(Sec. 103) Expresses the sense of Congress that the Secretary of the Treasury has the authority to alter InternalRevenue Service (IRS) standards established to set guidelines for repayment plans as needed to accommodatetheir use under the Bankruptcy Code. Instructs the Director of the Executive Office for U.S. Trustees to report tocertain congressional committees regarding the use of IRS standards for determining specified monthly debtorexpenses and the impact of such standards upon debtors and the bankruptcy courts.

(Sec. 104) Revises procedural guidelines to mandate a written notice to the individual consumer debtor beforecommencement of a case stating:

1. the types of services available from credit counseling agencies;

2. the criminal penalties for fraudulent concealment of assets; and

3. that all creditor-supplied information is subject to examination by the Attorney General.

(Sec. 106) Precludes an individual debtor from filing under Federal bankruptcy law unless the individual hasreceived a briefing from an approved nonprofit budget and credit counseling service prior to filing a bankruptcypetition, unless the U.S. trustee or bankruptcy administrator determines that the service for the district in whichthe debtor lives is not reasonably able to provide adequate services to the additional individuals who wouldotherwise seek credit counseling because of such requirement. Conditions a Chapter 7 or Chapter 13 dischargein bankruptcy upon the debtor's completion of an approved instructional course concerning personal financialmanagement.

(Sec. 107) Requires the Director of the Executive Office for United States Trustees to issue schedules ofreasonable and necessary administrative expenses of administering a chapter 13 plan for each judicial district ofthe United States.

(Sec. 201) Cites circumstances under which the court may reduce a claim based upon unsecured consumer debtsby up to 20 percent if the debtor can show by clear and convincing evidence that the claim was filed by acreditor who unreasonably refused to negotiate a reasonable alternative repayment schedule proposed by anapproved credit counseling agency acting on the debtor's behalf.

(Sec. 202) States that a creditor's willful failure to credit payments received from a debtor is a violation of adischarge operating as an injunction against a collection action if such failure caused material injury to the debtor(with certain exceptions).

(Sec. 203) Modifies debt reaffirmation guidelines governing wholly unsecured consumer debts to mandatespecified detailed disclosures and explanations to the debtor for dischargeable debt agreements. Exempts aCredit Union creditor from such detailed disclosures and explanations.

Amends Federal criminal law to instruct the Attorney General to designate U.S. attorneys and agents of theFederal Bureau of Investigation (FBI) to implement enforcement activities relating to:

1. abusive reaffirmations of debt; and

2. materially fraudulent statements in bankruptcy schedules that are intentionally false or misleading. Directsthe bankruptcy court to establish procedures referring those cases to the U.S. attorneys and FBI agents.

(Sec. 204) Preserves consumer claims and defenses against predatory loans that have been sold by thebankruptcy trustee and that are subject to either the Truth in Lending Act or any consumer credit contract.

(Sec. 212) Revises priority payment guidelines to place within the first priority claim category certain unsecuredclaims for domestic support obligations, if the funds received by a governmental unit are applied in a prescribedorder. Grants priority over such claims, however, to specified administrative expenses of certain trustees.

(Sec. 213) Conditions court confirmation of a debt repayment plan under Chapters 11, 12 (Debts of a FamilyFarmer), and 13 upon certification that the debtor has paid in full all adjudicated domestic support obligationsthat become due after the petition filing date.

(Sec. 214) Excepts from an automatic stay specified choses-in-action pertaining to domestic support obligationsproceedings including:

1. child custody or visitation;

2. dissolution of marriage;

3. domestic violence;

4. withholding of income that is property of the bankrupt estate for payment of domestic support obligations;

5. suspension of drivers' licenses and professional licenses;

6. reporting of overdue support owed by a parent to certain consumer reporting agencies;

7. interception of specified tax refunds; and

8. enforcement of medical obligations under title IV, part D (Child Support and Establishment of Paternity) ofthe Social Security Act.

(Sec. 215) Revamps guidelines governing the non-dischargeability of certain debts for alimony, maintenance,and support to repeal the exceptions granted the debtor under specified conditions.

(Sec. 216) Modifies guidelines governing property exempt from the bankruptcy estate to declare such propertyliable for a debt arising from domestic support obligations.

Additional Domestic Support Provisions

(Sec. 217) Prohibits the bankruptcy trustee from avoiding a transfer that is a bona fide payment of a debt for adomestic support obligation.

(Sec. 218) Excludes income payments for postpetition domestic support obligations from "disposable income"for purposes of a Chapter 12 confirmation plan.

(Sec. 219) Sets forth the duties of the bankruptcy trustee to notify the claim holder and the appropriate Statechild support agency of the debtor's last known address.

(Sec. 220) Declares dischargeable debts for certain qualified educational loans which, if not discharged, wouldimpose an undue hardship upon either the debtor or the debtor's dependent.

(Sec. 221) Modifies guidelines governing non-attorney bankruptcy petition preparers to mandate that as aprerequisite to any collection of fees for services: (1) such preparers officially disclose to debtors that theycannot practice law or give legal advice; and (2) such disclosure be signed by the debtor and filed with therequisite court documents. Prescribes enforcement and penalty guidelines for preparer noncompliance.

(Sec. 223) Places in tenth order of priority death or personal injury claims against the bankrupt estate that arisefrom debtor's unlawful operation of a motor vehicle or vessel while under the influence of drugs or alcohol.

(Sec. 224) Permits an individual debtor to exempt from the property of the bankrupt estate certain tax-exemptretirement funds that have not been obligated in connection with any extension of credit.

Excepts from an automatic stay certain income withheld from debtor's wages.

Excepts from a discharge in bankruptcy amounts owed by the debtor to certain plans established under theInternal Revenue Code.

(Sec. 225) Sets forth criteria for excluding certain education individual retirement accounts from the property of

the bankruptcy estate if the designated beneficiary is the debtor's child or grandchild.

(Sec. 301) Modifies exceptions to a discharge in bankruptcy to prohibit discharge of a filing fee imposed by anycourt upon a prisoner.

(Sec. 302) Terminates the automatic stay 30 days after filing of a petition if a chapter 7, 11, or 13 petition waspending and dismissed within the preceding year, unless the subsequent filing is in good faith. Delineatesconditions under which a history of previous petitions in bankruptcy gives rise to a rebuttable presumption thatthe case is not filed in good faith.

(Sec. 303) Directs the court to grant two-year relief from the automatic stay upon request of a party in interest inconnection with certain real property actions if the court finds that filing the bankruptcy petition was part of ascheme to delay, hinder, and defraud creditors.

(Sec. 304) Modifies debtor's duties to mandate specified affirmative actions incumbent upon a chapter 7 debtor,including reaffirmation of the debt, or redemption of the property within 45 days, in order to retain possession ofpersonal property. Allows a creditor to take action with respect to such property under nonbankruptcy law if thedebtor fails to act within 45 days, unless the court determines upon trustee motion that such property is ofconsequential value or benefit to the estate.

(Sec. 305) Terminates the automatic stay governing property of the debtor's estate that secures a claim, or issubject to an unexpired lease, if the debtor fails to complete within a revised, accelerated time frame an intendedsurrender of consumer debt collateral, or an intended property redemption, or debt reaffirmation to retain suchcollateral (unless the court determines upon trustee motion that such property is of consequential value orbenefit to the estate).

(Sec. 306) Requires the bankruptcy court to confirm a Chapter 13 plan if it provides that the holder of a securedallowed claim shall retain the attendant lien until payment or discharge of all debts.

Provides that if a Chapter 13 proceeding is dismissed or converted without completion of the plan, the holdershall retain such lien to the extent recognized by applicable non-bankruptcy law.

States that statutory guidelines to determine the secured status of a creditor's claim do not apply if:

1. the creditor has a purchase money security interest securing the debt;

2. the underlying debt was incurred within the 910 day period preceding the filing of the petition; and

3. the collateral for that debt consists of a motor vehicle acquired for the debtor's personal use (or if thecollateral consists of any other thing of value if the debt was incurred during the one-year period preceding suchfiling).

(Sec. 307) Increases from 180 days to 730 days the duration of debtor's domicile for purposes of determiningwhich State law governs the debtor's selection of property exempt from the bankrupt estate. Provides fordetermination of an immediately earlier domicile if the debtor's domicile has not been located in a single State forthe 730-day period. Allows a debtor to exempt certain property if the effect of the domiciliary requirement is torender the debtor otherwise ineligible for any exemption. NOTE: It will be harder to move to Florida and changeyour homestead exemptions of $7,500 to an unlimited exemption.

(Sec. 308) Requires reduction of the value of the homestead exemption to the extent that it is attributable to anyportion of property disposed of in the ten-year period before the petition filing date with the intent to hinder,delay, or defraud a creditor.

(Sec. 309) Revises requirements governing the effects of conversion from chapter 13 to another chapter.Declares that:

1. valuations of property and of allowed secured claims in a chapter 13 case shall not apply in a case convertedto chapter 7; and

2. with respect to cases converted from Chapter 13, the claim of any creditor holding security as of the date ofthe petition shall continue to be secured by that security unless the full claim amount, as determined underapplicable nonbankruptcy law, has been paid in full as of the conversion date. States that a prebankruptcydefault shall have the effect given under applicable nonbankruptcy law unless it has been fully cured pursuant tothe plan at the time of conversion.

Provides for a Chapter 7 debtor's assumption of unexpired leases of personal property. Declares that in aChapter 11 case in which the debtor is an individual, and in a Chapter 13 case, if the lease is not assumed in theplan, it is rejected (thus no longer subject to an automatic stay).

Delineates a cash payment plan for chapter 13 debtors for payments to any lessor of personal property and toany creditor holding a claim secured by personal property in order to ensure adequate protection to the claimholder during the payment period. Requires a debtor-in-possession to provide reasonable evidence of anyrequisite insurance coverage with respect to the use or ownership of such property.

(Sec. 310) Revamps nondischargeability guidelines to narrow the window of dischargeability from $1,075 to$500, for aggregate consumer debts owed to a single creditor on luxury goods incurred within 90 days (currently60 days) prior to the order for bankruptcy relief. Reduces, likewise, from $1,075 to $750, nondischargeable cash

advances that are extensions of consumer credit under an open end credit plan if acquired within 70 days(currently 60 days).

(Sec. 311) Denies an automatic stay of specified residential real property eviction proceedings by a lessor againsta debtor if:

1. the lessor obtained judgment for possession prior to the bankruptcy filing date; or

2. lessor furnishes certification of specified debtor offenses.

(Sec. 312) Extends the time between Chapter 7 discharges from six to eight years. Denies a chapter 13 dischargeto any debtor who has received a discharge:

1. in a chapter 7, 11, or 12 case within the preceding four years; or

2. in another chapter 13 case within the preceding two years.

(Sec. 313) Defines a debtor's household goods to include specified items. Excludes from such goods:

1. electronic entertainment equipment, antiques or jewelry with more than $500 in aggregate fair market value;

2. works of art;

3. more than one personal computer and related equipment; and

4. motor vehicles, boats, motorized recreational devices, conveyances, vehicles, watercraft, or aircraft

(Sec. 314) Includes as nondischargeable chapter 13 debts those incurred:

1. to pay a tax to a non-Federal governmental unit;

2. for restitution or a criminal fine included in a sentence on the debtor's conviction of a crime;

3. for fraud or defalcation while acting in a fiduciary capacity; or

4. for restitution, or damages, awarded in a civil action against the debtor as a result of willful or maliciousinjury by the debtor that caused personal injury or death to an individual.

(Sec. 315) Prescribes notice procedures for Chapter 7 and Chapter 13 creditors. Expands debtor's duties torequire filing with the bankruptcy court of:

1. Federal tax returns;

2. evidence of employer payments received;

3. monthly net income projections; and

4. anticipated income or expenditure increases.

Permits a Chapter 7 or chapter 13 creditor to request the debtor's petition, tax schedules, and statement ofaffairs, including the debt adjustment plan filed by the debtor.

Requires dismissal of a Chapter 7 or 13 case upon debtor's failure to provide to the bankruptcy trustee withinseven days before the initial date for the first meeting of creditors a tax return for the latest taxable period priorto filing.

Mandates that, at the time of filing with the taxing authority, a Chapter 7 or 13 debtor file with the bankruptcycourt specified tax documentation pertaining to the period from case commencement until case termination.

Requires a Chapter 13 debtor to file with the court a statement of income and expenditures in the preceding taxyear, and monthly net income, showing how calculated.

Makes debtor's mandatory documentation available for inspection and copying to certain bankruptcy officersand any party in interest. Requires debtors to furnish driver's license, passport, or other photograph-containingdocumentation establishing debtor identification.

(Sec. 316) Mandates automatic dismissal if a voluntary Chapter 7 or 13 debtor fails to furnish all mandatoryinformation, or fails to timely file the requisite schedules within 45 days of filing a petition. Requires the court toorder dismissal within five days of a request by a party in interest for debtor's failure to timely submit requisitedocumentation. Permits the court, upon trustee motion, to decline to dismiss a case if the debtor made a goodfaith effort to file all required information and the best interests of creditors would be served by administration ofthe case.

(Sec. 318) Sets forth a statutory formula to determine whether a Chapter 13 debt readjustment payment planshall be of either three-year or five-year duration.

(Sec. 320) Revises automatic stay guidelines to provide that in the case of an individual filing under Chapters 7,11, or 13, the automatic stay shall terminate 60 days after a request for its release by a party in interest, unlessthe court orders, or the parties agree to a longer time.

(Sec. 322) States that a debtor may not exempt a homestead interest acquired during the 1215-day periodpreceding petition filing which exceeds in the aggregate $125,000 in value in specified real or personal property.Exempts from such limitation the principal residence of a family farmer.

(Sec. 323) Excludes employee benefit plan participant contributions from the property of the bankruptcy estate.

(Sec. 327) States that if the debtor is an individual chapter 7 or 13 debtor the value of personal property securingan allowed claim shall be determined based on its replacement value as of the date of petition filing withoutdeduction for costs of sale or marketing.

(Sec. 328) Revises requirements for the assumption by a trustee of a defaulted executory contract or unexpiredlease. Exempts from the requirement that the trustee cure such a default any default that is a breach of aprovision relating to the satisfaction of any non-penalty provision relating to a default arising from any failure toperform nonmonetary obligations under an unexpired lease of real property, if it is impossible for the trustee tocure such default by performing nonmonetary acts at and after the time of assumption. Provides, however, that ifsuch default arises from a failure to operate in accordance with a nonresidential real property lease, then suchdefault shall be cured by performance at and after the time of assumption in accordance with such lease, andpecuniary losses resulting from such default shall be compensated in accordance with specified law.

Makes the same exception to requirements a plan must meet to avoid impairing a class of claims or interests.Requires a plan, to avoid impairment, to compensate a claim holder for any actual pecuniary loss incurred bysuch holder resulting from a failure to perform a nonmonetary obligation, other than a default arising from failureto operate a non-residential real property lease subject to certain requirements.

(Sec. 329) Expands permissible administrative expenses to include certain wages and benefits awarded as backpay (resulting from a debtor employer's violation of law), if the court determines that the award will notsubstantially increase the probability of layoff or termination of current employees or nonpayment of domesticsupport obligations during the case.

(Sec. 330) Instructs the court to withhold a debtor's discharge upon its reasonable belief that a proceeding ispending in which debtor may be found guilty of a felony, or become liable for specified debts.

(Sec. 331) Prescribes guidelines for the denial as an allowance as an administrative expense certain retentionbonuses, severance pay, and transfers or obligations incurred for the benefit of officers, managers, or consultantshired after the date of the filing of the bankruptcy petition.

(Sec. 401) Denies a debtor an automatic stay of: (1) the commencement of an investigation or action by asecurities self-regulatory organization to enforce compliance with its regulations; (2) the enforcement of anyorder or decision obtained by such an organization, other than for monetary sanctions; or (3) any act taken bythe securities self-regulatory organization to delist, delete, or refuse to permit quotation of any stock that doesnot meet applicable regulatory requirements.

(Sec. 402) Authorizes the bankruptcy court, upon request of a party in interest, to order that the U.S. trustee notconvene a meeting of creditors or equity security holders if the debtor has filed a plan for which acceptanceshave been solicited before commencement of the case.

(Sec. 403) Increases from ten days to 30 days the length of time for the perfection of a transfer of property withrespect to a trustee's authority to avoid such a transfer.

(Sec. 404) Amends guidelines for rejection and surrender of executory contracts and unexpired leases.

(Sec. 405) Authorizes a Chapter 11 trustee to increase the membership of a committee of creditors and equitysecurity holders to include a creditor that is a small business concern following the court's determination thatsuch creditor holds claims of the kind represented by the committee, the aggregate amount of which isdisproportionately large in comparison to the creditor's annual gross revenue. Requires such committee toprovide access to information to certain creditors who are not committee members.

(Sec. 408) States that acceptance or rejection of a chapter 11 plan may be solicited from a holder of a claim orinterest if:

1. the solicitation complies with applicable nonbankruptcy law; and

2. it was made before commencement of the case in a manner complying with applicable nonbankruptcy law.

(Sec. 409) Prohibits the bankruptcy trustee from avoiding a transfer if, in a case filed by a debtor whose debtsare not primarily consumer debts, the aggregate value of all property that constitutes or is affected by suchtransfer is less than $5,000.

(Sec. 411) Limits the extensions of time permitted for filing a Chapter 11 reorganization plan.

(Sec. 412) Denies a discharge in bankruptcy for a debt for a fee or assessment arising from a debtor's interest in alot in a homeowners association for as long as the debtor retains specified interests in such lot.

(Sec. 431) Sets forth mandatory factors for court consideration in determining whether the disclosure statementregarding a small business reorganization plan provides adequate information.

(Sec. 432) Defines a small business debtor, generally, as a person (including a debtor affiliate) with not morethan $2 million in aggregate non-contingent, liquidated secured and unsecured debts as of the date of the petitionor the order for relief (excluding debts owed to affiliates or insiders).

(Sec. 434) Sets forth uniform national reporting requirements for small business debtors.

(Sec. 436) Sets forth duties and administrative procedures in small business reorganization cases, including serialfiler provisions and expanded grounds for dismissal or conversion and appointment of a trustee.

(Sec. 444) Revises the circumstance precluding relief from an automatic stay of an act against secured singleasset real estate by a creditor whose claim is secured by an interest in such real estate. Precludes such reliefwhere a debtor has commenced monthly payments to each such creditor that may, in the debtor's sole discretion,be made from rents or other income generated before or after the commencement of the case by or from theproperty. Requires such payments to be in an amount equal to the interest at the then-applicable nondefaultcontract interest rate (currently, at the fair market rate) on the value of the creditor's interest in the real estate.

(Sec. 701) Amends the bankruptcy code to modify the treatment of certain tax liens.

(Sec. 703) Requires the clerk of each district to maintain a listing under which a governmental entity responsiblefor the collection of taxes within such district may designate an address for service of requests and describewhere further information for filing such requests may be found.

(Sec. 704) Prescribes the rate of interest to be paid on mandatory interest payments on tax claims will be the IRSstatutory rate.

(Sec. 705) Revises the specifications for income tax claims receiving eighth priority (allowed unsecured claimsof governmental units). Provides for tolling of the time periods covering such tax claims for stays of proceedingsin a prior bankruptcy case, and the pendency or effect of offers in compromise.

(Sec. 707) Prohibits a Chapter 13 discharge of any debt for fraudulent tax payments.

(Sec. 708) States that confirmation of a bankruptcy plan does not discharge a corporate debtor from any debtfor:

1. money or credit obtained by false representation owed to a domestic governmental unit or to a person as theresult of an action filed with respect to certain claims against the Federal or a State government; or

2. a tax or customs duty with respect to which the debtor made a fraudulent return or willfully attempted toevade or defeat such tax.

(Sec. 709) Limits the automatic stay of U.S. Tax Court proceedings to prepetition taxes.

(Sec. 710) Sets as a prerequisite for court confirmation of a Chapter 11 bankruptcy plan that includes tax claims,that the debtor make regular cash installment payments over a period ending not later than five years after thedate of entry of the order for relief, and in a manner not less favorable than the most favored nonpriorityunsecured claim provided for in the plan.

(Sec. 711) Prohibits the avoidance of statutory tax liens by certain purchasers. This provision makes it muchharder for trustees and debtors in possession to avoid state and federal tax liens.

(Sec. 712) Amends the Federal judicial code to require officers and agents conducting any business under courtauthority to pay all Federal, State, and local taxes when due in the course of the business, unless it is a propertytax secured by a lien against estate property which is abandoned by the bankruptcy trustee, or payment of thetax is excused under a specific bankruptcy law. Cites circumstances in which payment of such taxes may bedeferred in a case pending under chapter 7 until final distribution is made. Entitles to administrative expensepriority payment certain secured and postpetition unsecured taxes incurred by the bankruptcy estate, includingad valorem property taxes.

Declares that a governmental unit shall not be required to file a request for the payment of administrativeexpenses relating to a tax liability or tax penalty. Allows a trustee to recover from property securing a claim forthe payment of all ad valorem property taxes relating to such property.

(Sec. 713) Requires as a condition for payment of tardily filed priority tax claims that they be filed either beforethe trustee commences distribution, or ten days following the mailing to creditors of the summary of the trustee'sfinal report, whichever is earlier (currently, before the trustee commences distribution of the estate).

(Sec. 714) Returns involuntarily prepared by tax agencies for a taxpayer are included in the definition of taxreturns.

(Sec. 716) Conditions court confirmation of a chapter 13 bankruptcy plan upon filing by the debtor:

1. of all prepetition tax returns for the prior 4 years; and

2. before the day on which the first meeting of the creditors is convened, of all tax returns for taxable periodsending in the four-year period that ends on the date of the filing of the petition. Directs the court to dismiss aplan or convert it to chapter 7, whichever is in the best interests of the creditors and the estate, if a chapter 13debtor fails to comply with such time frame.

Expresses the sense of Congress that the Judicial Conference of the United States should propose for adoptionamended Federal Rules of Bankruptcy Procedure pertaining to objections to tax returns and to planconfirmation.

(Sec. 717) Redefines "adequate disclosure," for Chapter 11 postpetition disclosure and solicitation purposes, toinclude full discussion of the potential material Federal and State tax consequences of the plan to the debtor andto a hypothetical investor that is representative of the holders of claims or interests in the case.

(Sec. 718) Denies an automatic stay (unless specified conditions are met) to the setoff of an income tax refundfor a taxable period which ended before the order for relief against an income tax liability for a taxable periodwhich also ended before the order for relief.

(Sec. 719) Revises special provisions related to the treatment of State and local taxes, including the creation of aseparate taxable estate when such is done for Federal tax purposes.

(Sec. 720) Permits a taxing authority to petition the court to convert or dismiss a case if the debtor fails to timelyfile a tax return or obtain an extension, whichever is in the best interests of creditors and the estate.

(Sec. 1201) Makes technical corrections to Federal bankruptcy, judicial, and criminal law.

Redefines single asset real estate to exclude family farms and to repeal the $4 million ceiling on the amount of

noncontingent, liquidated secured debts on such property.

Defines the term "transfer" to include: (1) creation of a lien; (2) retention of title as a security interest; (3)foreclosure of the debtor's equity of redemption; and (4) every mode of disposing of property or parting with aninterest in property holders' committee.

(Sec. 1209) Declares nondischargeable in bankruptcy a debt for death or personal injury caused by the debtor'soperation of a vessel or aircraft while intoxicated from alcohol, a drug, or other substance.

(Sec. 1225) Denies an automatic stay with respect to creation or perfection of a statutory lien for a special tax orspecial assessment on real property whether or not ad valorem, if the tax or assessment comes due after the filingof a petition for debtor relief.

(Sec. 1227) Cites conditions under which the rights of the trustee are subject to the right of the seller to reclaimgoods received by the insolvent debtor within 45 days before commencement of the case. Sets a time-frame forseller's written demand for reclamation.

(Sec. 1228) Prohibits a court from granting a discharge in a chapter 7 case, or from confirming a reorganizationplan in a chapter 11 or 13 case, unless requested tax documents have been provided to the court.

(Sec. 1301) Amends the Truth in Lending Act to require:

1. specified minimum payment warnings applicable to an open end credit plan upon which finance charges areaccruing; and

2. disclosure of a toll-free number to call for an estimate of the time required to repay the balance making onlyminimum payments. Requires the Federal Trade Commission (FTC) to establish a toll-free number for the samepurpose in the case of a creditor with respect to which the FTC is enforcing compliance with such Act. Directsthe Board of Governors of the Federal Reserve System (the Board) to promulgate implementing regulations.

(Sec. 1302) Mandates additional disclosures for credit extensions secured by a dwelling that exceed suchdwelling's fair market value, including a statement that the interest on the excess portion of such extension is nottax deductible for Federal income tax purposes.

(Sec. 1303) Requires specified additional disclosures for:

1. introductory rates and temporary annual percentage rates of interest;

2. Internet-based credit card solicitations; and

3. late payment deadlines and penalties.

(Sec. 1306) Prohibits a creditor from terminating an open end consumer credit account before its expiration datesolely because finance charges have not been incurred on such account.

(Sec. 1401) Extends the look-back period for such priority wages and benefits from 90 days to 180 days prior tobankruptcy (or cessation of debtor's business). Raises the ceiling for employee wages and benefits entitled tothird order priority from $4,000 to $10,000.

(Sec. 1402) Extends from one year to two years the look-back period during which the bankruptcy trustee mayavoid fraudulent transfers and obligations incurred by either a debtor or partnership debtor (including anytransfer to or for the benefit of an insider, or obligation incurred to or for the benefit of an insider, under anemployment contract and not in the ordinary course of business).

(Sec. 1403) Instructs the court, upon motion of a party in interest, to order reinstatement of retiree benefits if thedebtor modified them during the 180-day period prior to petition filing, and was insolvent on the date ofmodification (unless the court finds that the balance of the equities clearly favors such modification).

(Sec. 1405) Requires the bankruptcy trustee to move for the appointment of a trustee if there are reasonablegrounds to suspect that current members of the governing body of the debtor, the debtor's chief executive orchief financial officer, or members of the governing body who selected the debtor's chief executive or chieffinancial officer, participated in actual fraud, dishonesty, or criminal conduct in the management of the debtor orthe debtor's public financial reporting.

Income taxes are dischargeable if:

1. The tax return was due (including extensions) more than three years before the bankruptcy filing, §§ 507(a)(8)(A)(i) and 523(a)(1)(A);

2. A tax return was filed and, if late, was filed more than two years before the bankruptcy filing, § 523(a)(l)(B);

3. The return was not fraudulent and the taxpayer did not willfully attempt to evade the tax, § 523(a)(1)(C);

4. The tax was assessed more than 240 days before the petition date (excluding any time an offer incompromise was outstanding, plus 30 days), §§ 507(a)(8)(A)(ii) and 523(a)(1)(A); and

5. Any unassessed tax is no longer assessable by law or agreement, §§ 507(a)(8)(A)(iii) and 523 (a)( 1 )(A).

DISCHARGEABILITY AT A GLANCE

PERSONAL INCOME TAXES

CHAPTERS 7 & 13

Personal income taxes are dischargeable (wiped out) in a Chapter 7 if each of the following elements exist:

1. The tax year in question is more than three years prior to filing the bankruptcy;

2. The tax in question has been assessed more than 240 days prior to filing the bankruptcy;

3. The tax return for the year in question was filed at least more than two years prior to the bankruptcy filing;

4. The tax return in question was non fraudulent and there is no showing of willful evasion of payment of alawful tax;

5. The claim is unsecured; (If secured, the tax is discharged as to the debtor personally (in personam liability)but the lien is still valid as to any property it has attached to (in rem liability).

PAYROLL WITHHOLDING TAXES

CHAPTERS 7 & 13

Payroll withholding taxes are never dischargeable (wiped out) in a Chapter 7 (unless, of course, there are assetsin the estate to liquidate and pay the claim). However, the question of whether or not the debtor is or is not theresponsible officer and thus personally liable for the 100% penalty is a matter the bankruptcy court hasjurisdiction to determine. And the court has jurisdiction to determine the amount of the claim, unless it hasalready been adjudicated by a prior court of competent jurisdiction (i.e. the tax court).

SALES TAXES

CHAPTERS 7 and 13

If the sales tax is a true sales tax (a tax imposed on the buyer and computed based on the amount of thepurchase, where the tax is to be collected by the retailer and forwarded to the taxing entity) most courts holdthat it is a nondischargeable trust fund tax.

Where, however, the sales tax is actually an excise tax (a tax imposed on the retailer for the privilege of doingbusiness, computed on the amount of the purchase) it is dischargeable if the event on which the tax arose is morethan three years prior to the filing of the bankruptcy. It is important to note that what is called a sales tax insome states is actually an excise tax under bankruptcy law (such as, for example, California’s so called salestax). The dischargeability of the tax does not depend on what it is called by the state, but rather by the actualnature of the tax as determined by the bankruptcy court.

Note that where in a Chapter 13 the taxing entity fails to file a timely proof of claim and the claim is unsecured,it is discharged.

EMPLOYMENT TAXES

CHAPTERS 7 and 13

The employment tax (the employer’s contribution to the payroll withholding) is dischargeable under certaincircumstances. Such taxes may be dischargeable if over three years old, or if over 90 days old, or entirelydischargeable, depending on how the Bankruptcy Code is interpreted. Scarce case law leaves this issueunsettled. The one case extant which deals with this issue held that any such tax over 90 days old prior tobankruptcy is dischargeable. However, Collier’s on Bankruptcy makes a flat statement that such taxes aredischargeable only if over 3 years old, without citing authority.

DISCHARGEABILITY AT A GLANCE

PENALTIES

CHAPTERS 7 & 13

The majority rule is that penalties that are punitive in nature only (which includes most penalties such aspenalties for non filing, late filing, non payment, late payment, etc.) are dischargeable if:

1. The penalty is attached to a tax which is dischargeable; or

2. The transaction or event giving rise to the penalty is more than three years before the bankruptcy filing.

A non dischargeable penalty is one which is for reimbursement to the taxing entity for pecuniary loss, or is apenalty that represents the actual tax owed, such as the 100% penalty for payroll withholding. The typicalpenalties assessed against taxpayers are not in these categories.

Note: The 240 day assessment period is not applicable to tax penalties. Hence, it makes no difference when thepenalty was assessed, as long as it meets one of the two criteria listed above it is dischargeable.

Note: The minority rule is that a penalty is dischargeable only if the tax is dischargeable, regardless of how oldthe penalty is.

Note: Penalties, even in Chapter 7, are not priority claims, but are included in exceptions to dischargeunder § 507.

SOURCE: “DISCHARGING TAXES IN BANKRUPTCY”

Chapters 7, 11 and 13

Morgan D. King J.D

(Cases Filed on or After February 13, 2006)

(The U.S. Trustee Program will apply this median family income data to all cases filed on or after February 13,2006. This median family income data will be adjusted again in August/September 2006, shortly after the CensusBureau updates the data.)

FAMILY SIZE

I EARNER 2 PEOPLE 3 PEOPLE 4 PEOPLE *STATE ALABAMA $33,873 $41,103 $50,617 $56180ALASKA $45,191 $62,013 $70,450 $78,958ARIZONA $36,856 $48003 $53,089 $60,160ARKANSAS $29,930 $38,438 $42,629 $51,478CALIFORNIA $43,436 $55,320 $61,655 $70,626COLORADO $41,401 $56,024 $60,550 $68,924CONNECTICUT $54,311 $63,455 $79,100 $91,269DELAWARE $40,264 $53,716 $63,593 $74,444DISTRICT OF COLUMBIA

$39,649 $64,274

$64,274

$64,274

FLORIDA $37,099 $46,351 $51,294 $61,825GEORGIA $35,562 $47,327 $51,545 $60,028HAWAII $47,056 $56,383 $66,742 $78,354IDAHO $33,634 $44,447 $48,891 $57,809ILLINOIS $43,012 $53,320 $64,286 $72,742INDIANA $36,572 $48,183 $52,526 $65,421IOWA $36,518 $48,095 $55,933 $64,051KANSAS $37,795 $50,258 $56,386 $61,515KENTUCKY $33,263 $39,218 $47,955 $56,866LOUISIANA $31,685 $39,306 $47,282 $53,145MAINE $37,765 $47,911 $54,209 $66,255MARYLAND $48,205 $60,541 $72,417 $88,454MASSACHUSETTS $48,775 $57,165 $73,837 $88,044MICHIGAN $41,877 $49,052 $62,480 $70,887MINNESOTA $42,028 $56,449 $67,049 $75,990MISSISSIPPI $29,247 $36,940 $39,075 $51,584MISSOURI $36,696 $46,144 $51,617 $64,376MONTANA $31,640 $43,407 $46,248 $52,384NEBRASKA $37,084 $47,085 $56,087 $62,012NEVADA $38,506 $52,095 $53,396 $54,538NEW HAMPSHIRE $52,120 $59,743 $70,677 $84,918NEW JERSEY $54,273 $60,532 $78,028 $91,398NEW MEXICO $31,652 $41,228 $42,824 $48,858NEW YORK $40,801 $50,136 $59377 $69,854NORTH CAROLINA $33,510 $43,532 $50,874 $56,985NORTH DAKOTA $33,880 $47~374 $55,396 $60,274OHIO $37,333 $46,250 $57,268 $65~126OKLAHOMA $32,439 $42,450 $49,320 $51,572OREGON $37,530 $48,676 $54,633 $61,209PENNSYLVANIA $40,251 $45,865 $60,986 $68,826RHODE ISLAND $41,835 $53,074 $59,932 $71,369SOUTH CAROLINA $33,476 $44,730 $50,203 $61,718SOUTH DAKOTA $33,171 $43,438 $53,430 $61,495TENNESSEE $34,151 $42,874 $50,679 $57,802TEXAS $34,408 $48,029 $50,408 $58,153UTAH $42,496 $46,912 $52,955 $59,879VERMONT $38,562 $51,181 $61,268 $68,065VIRGINIA $43,195 $56,455 $63,177 $74,387WASHINGTON $43,891 $54,044 $59,732 $73,259WEST VIRGINIA $33,704 $36,376 $47,176 $53,551WISCONSIN $39,157 $49,918 $60,106 $70,170WYOMING $39,824 $52,684 $53,950 $64,116

* Add $6,300 for each individual In excess of 4.

Item less than

$833$833 to$1,249

$1,250 to$1,666

$1,667 to$2,499

$2,500 to$3,333

$3,334 to4,166

$4,167 to$5,833

$5,834 andover

Food 433 463 501 502 558 574 685 868Housekeeping Supplies 42 43 44 46 52 53 66 94Apparel & Services 144 145 151 152 190 191 201 302Personal CareProducts & Services

44 46 47 48 49 52 58 89

Miscellaneous 193 193 193 193 193 193 193 193 Total $856 $890 $936 $941 $1,042 $1,063 $1,203 $1,546 Bankruptcy Allowable Living Expenses – National Standards (See 11 U.S.C.§707(b)(2)(A)(ii)(l)) Food & Clothing(Apparel & Services)*

577 608 652 654 748 765 886 1170

5% of Food &Clothing

29 30 33 33 37 38 44 59

For Use with Allowable Transportation Expenses Table

The Operating Costs and Public Transportation Costs sections of the Transportation Standards are provided by Census Region and Metropolitan Statistical Area(MSA), The following table lists the states that comprise each Census Region. Once the taxpayer’s Census Region has been ascertained, to determine if an MSAstandard is applicable, use the definitions below to see if the taxpayer lives within an MSA (MSA5 are defined by county and city, where applicable). If the taxpayerdoes not reside in an MSA, use the regional standard.

West Census Region:New Mexico, Arizona, Colorado, Wyoming, Montana, Nevada, Utah, Washington, Oregon, Idaho, California, Alaska, Hawaii

Metropolitan Statistical Areas (MSAs) Within the West Census Region

MSA COUNTIES (unless otherwise specified)Los Angeles in CA: Los Angeles, Orange, Riverside, San Bernadino, VenturaSan Francisco in CA: Alameda, Contra Costa, Marin, Napa, San Francisco, San Mateo, Santa Clara,

Santa Cruz, Solano, SonomaSan Diego in CA: San DiegoPortland

in Or:Clackamas, Columbia, Marion, Multnomah, Polk, Washington, Yamhill

in WA:

Clark

Seattle in WA: Island, King, Kitsap, Pierce, Snohomish, ThurstonHonolulu in HI: HonoluluAnchorage in AK: Anchorage boroughPhoenix in AZ: Maricopa, PinalDenver in CO: Adams, Arapahoe, Boulder, Denver, Douglas, Jefferson, Weld

Operating Costs & Public Transportation Costs(Line 22, Form B22A)(Line 27, Form B22C)

Region No Car One Car Two Cars

West Census Region $252 $338 $420 MSA Locations Withn Census Region: Anchorage $319 $341 $423Denver $312 $338 $420Honolulu $300 $328 $410Los Angeles $284 $426 $508Phoenix $275 $351 $433Portland $194 $297 $379San Diego $322 $382 $464San Francisco $3225 $401 $484Seattle $267 $329 $412

Ownership Costs(Lines 23 and 24, Form B22A)(Lines 28 and 29, Form B22C)

First Car Second CarNational $471 $332

CALiFORNIA

Family Size and Expense Type

1 or 2 Persons 3 Persons 4 or More Persons Non-Mortgage Mortgage/

RentNon-Mortgage Mortgage/

RentNon-Mortgage Mortgage/

Rent Alameda County $444 $1384 $522 $1628 $601 $1872Alpine County $373 $926 $439 $1089 $505 $1252Amador County $388 $829 $456 $975 $525 $1121Butte County $357 $724 $420 $851 $483 $979Calaveras County $404 $804 $475 $946 $546 $1088Colusa County $356 $645 $419 $758 $482 $872Contra Costa County $445 $1354 $523 $1593 $602 $1832Del Norte County $336 $711 $395 $837 $454 $963El Dorado County $417 $1099 $491 $1293 $565 $1487Fresno County $347 $778 $409 $915 $470 $1052Glenn County $344 $573 $405 $674 $466 $775Humboldt County $335 $724 $394 $852 $453 $980Imperial County $345 $759 $406 $893 $467 $1027Inyo County $374 $801 $440 $943 $506 $1084Kern County $311 $754 $366 $887 $421 $1020Kings County $317 $741 $373 $872 $429 $1002Lake County $390 $663 $458 $781 $527 $898Lassen County $333 $708 $391 $834 $450 $959Los Angeles County $409 $1216 $481 $1431 $553 $1646Madera County $336 $736 $396 $865 $455 $995Marin County $622 $1808 $732 $2127 $842 $2446Maripose County $368 $716 $433 $842 $498 $968Mendocino County $393 $812 $462 $955 $531 $1099Merced County $326 $768 $383 $905 $441 $1040Modoc County $322 $430 $378 $507 $435 $583Mono County $489 $1045 $576 $1229 $662 $1414Monterey County $392 $1190 $461 $1401 $530 $1611Napa County $427 $1201 $502 $1414 $578 $1625Nevada County $424 $978 $499 $1150 $574 $1323Orange County $424 $1395 $499 $1642 $574 $1888Placer County $392 $1200 $461 $1412 $530 $1624Plumas County $379 $701 $446 $824 $513 $948Riverside County $347 $1021 $408 $1201 $469 $1382Sacramento County $322 $977 $378 $1150 $435 $1322San Benito County $401 $1422 $471 $1674 $542 $1924San Bernadino County $323 $979 $381 $1150 $438 $1323

San Diego County $404 $1342 $475 $1579 $546 $1817San Francisco County $507 $1466 $596 $1726 $686 $1984San Joaquiin County $336 $974 $396 $1146 $455 $1318San Luis Obispo Cty. $395 $1068 $464 $1257 $534 $1446San Mateo County $524 $1703 $616 $2004 $708 $2305Santa Barbara County $420 $1165 $494 $1371 $569 $1576Santa Clara County $503 $1644 $591 $1935 $680 $2225Santa Cruz County $493 $1407 $580 $1655 $667 $1903Shasta County $361 $742 $425 $873 $489 $1004Sierra County $352 $625 $414 $736 $477 $845Siskiyou County $336 $557 $395 $656 $454 $755Solano County $358 $1184 $421 $1393 $485 $1601Sonoma County $428 $1221 $503 $1437 $579 $1653Stanislaus County $321 $868 $377 $1022 $434 $1175Sutter County $336 $793 $395 $933 $454 $1073Tehama County $343 $611 $404 $718 $465 $825Trinity County $342 $589 $403 $692 $463 $796Tulare County $319 $704 $375 $828 $431 $952Tuolumne County $394 $771 $463 $908 $533 $1044Ventura County $418 $1355 $492 $1594 $565 $1834Yolo County $358 $1067 $421 $1255 $485 $1442Yuba County $325 $623 $382 $733 $439 $843

*Note: The IRS expense figures posted on this Web site are for use in completing bankruptcy forms. They are not for use in computing taxes or for any othertax administration purpose. Expense information for tax purposes can be found on the IRS Web site.

Portions Reprinted from

"REPRESENTING THE AUDITED TAXPAYER BEFORE THE IRS"

AND

REPRESENTATION BEFORE THE COLLECTION DIVISION OF

THE IRS

by

Robert E. McKenzie

WITH PERMISSION FROM

THOMSON WEST

Rochester, NY

All Rights Reserved

COPYRIGHT 2006

COPYRIGHT 2006 ROBERT E. MCKENZIE

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