Friday, August 31, 2012

A Civil Rights Lawsuit: The Chance to Be Heard

The Law Offices of Figeroux & Associates represents men and women of every race and every station in life. Our Brooklyn-based lawyers have represented citizens of the New York City area in the full spectrum of civil rights and constitutional law litigation.  Black and Brown, are the target of the NYPD, in fact, status does matter either, as an attorney, they did not care, I was arrested on Martin Luther King’s birthday in 2010, by the NYPD 83pct, offered fifteen thousand dollars, for one day in prison, did not settle, will litigate.  This should be our strategy in NYC, litigate, and bankrupt NYC into Civil Rights obedience.

Black or Brown, Beware of New York City's NYPD“Normally, I don’t like to wear sunglasses when I talk to people,” said Harold Davis, in a pair of dark rims. “But I won’t let my enemy see my tears.” It was a hot, sunny Saturday afternoon in Brooklyn August 4, at the corner of Church Avenue and 38th Street. Here, Harold’s 23-year-old niece, Shantel, was fatally shot by Phillip Atkins, a New York City narcotics officer with a history of brutality.  Full story, click here.

Figeroux & Associates
26 Court Street, Suite 701
Brooklyn, NY 11242
Phone: 718-834-0190
Fax: 718-222-3153

Wednesday, August 29, 2012

Divorce and Separation

Q. What is a "spouse?"
A. A "spouse" is a husband or wife.
Q. My spouse and I don't want to go to court, but we need help to work out some issues. Are there out-of-court options? 
A. Yes. You may want to try divorce mediation or collaborative family law.  These options are not for you if your case involves child abuse, domestic violence or where you cannot locate your spouse.
Q. My spouse and I have a Separation Agreement on file in the County Clerk's Office. I went to Family Court to get the child support that the Agreement gives me and the court said I couldn't get it there. What do I do?
A. The Family Court can't do anything with a Separation Agreement. You can file a new petition for child support in your county's Family Court or begin a divorce case in your county's Supreme Court. Depending on the amount of money, you can sue to get everything in the Separation Agreement in one of the civil courts.
Q. Where do I start a divorce?
A. In the Supreme Court of the county where you or your spouse live.
Q. Do I need a lawyer?
A. Only you can decide that. Think how difficult the divorce will be. If you think that your spouse will not fight the divorce and that there are no other complicated or contested issues like child custody, child support, or an order of protection, you can ask the Court Clerk for a New York State Uncontested Divorce Packet. There is no charge for the packet. The forms and instructions in the packet might help you to do the divorce without a lawyer, but there is no way to say for sure.
Q. Will the court appoint a lawyer for me free of charge if I want one?
A. Court-appointed lawyers are usually not available for divorces.
Q. I was served with divorce papers more than a year ago and haven't heard anything since. Am I divorced?
A. Check with the County Clerk's Office where you live and where your spouse lives now or used to live.
Q. How do I get a judge assigned to my case?
A. In Supreme Court you can get a judge assigned after a form called a Request for Judicial Intervention (RJI) is filed in court. You can get a RJI form from the Court Clerk's Office or County Clerk's Office. The form must then be filed with the County Clerk.
Q. Can I go back to my maiden name after the divorce?
A. Yes, but you have to ask for it in your court papers.
Q. Can I change my children's last name in the divorce?
A. No.
Q. How can I look at my divorce case file?
A. You can ask to do this at the County Clerk's Office.

Figeroux & Associates
26 Court Street, Suite 701
Brooklyn, NY 11242
Phone: 718-834-0190
Fax: 718-222-3153

Criminal Cases

Q. Where do I find a bail bondsperson?
A. These people don't work for the court system. Many courts have a list of names available for the public. You may also look in the Yellow Pages.
Q. How do I post bail and when do I get it back?
A. The Court Clerk will tell you the type and amount of bail to be posted and how to do it. Bail is a way to be sure you show up in court. Bail can't be returned until the case is finished or bail is lowered or you are released in your own recognizance or returned to jail. There is a surcharge on cash bail (3% of the amount) which is not returned if there is a conviction.
Q. I have a warrant outstanding. If I come to court, will the judge put me in jail?
A. A warrant will not stop until the person makes a personal appearance in court. It's up to the judge about jail.
Q. I've been arrested. What will happen to me in court?
A. It is important to appear on the date you have been given. On the first court date, the judge will explain the charges and you will be given a copy of them. If you do not have a lawyer, the judge will decide if you can have a lawyer free of charge. The issue of bail will be discussed.
Q. I was a crime victim. Do I need a lawyer to prosecute the accused?
A. The district attorney's office or other local prosecuting agency represents "the people" in all criminal cases.
Q. There has been an indictment in my case. What happens next? 
A. There will be a date scheduled for an "arraignment" of the indictment. At the arraignment, a plea will usually be entered and the issues of bail and your right to a lawyer will be discussed.
Q. The Court imposed a fine and a surcharge in my case. What do I do?
A. Talk to the Court Clerk about how to make payment with the court-ordered collection agency.
Q. How do I appeal?
A. A Notice of Appeal must be filed. Talk to the Court Clerk about time limits and who must get the notice.
Q. What is a Certificate of Relief From Disabilities and how do I get one? 
A. An "Eligible Offender" may get this certificate so they don't have certain restrictions because he or she was convicted of a crime. (Examples of these restrictions may include giving up property or not being able to have certain jobs.) An application for this certificate is available from the Clerk's Office.

Figeroux & Associates
26 Court Street, Suite 701
Brooklyn, NY 11242
Phone: 718-834-0190
Fax: 718-222-3153

Civil Cases for Money Damages Over $5,000 (not Small Claims)

Q. Do I need a lawyer for these types of cases? 
A. You are allowed to handle a case without a lawyer, although these kinds of cases are often complicated. It's up to you to decide. A person going to court without a lawyer is called "self-represented" or "pro se."
Q. How do I start a case?
A. One way is to go to the Clerk's Office. You will need to know the reason for the lawsuit, the amount of money involved, and the correct name and address of the person or business you want to sue. The case begins with filing a summons and complaint.
Q. What are a summons and a complaint?
A. A summons is a notice telling the person or business you are suing that a lawsuit has been started. A complaint is a document telling the person or business the reasons you are suing and what you want (for example, how much money). There are rules for using the summons that the Clerk can explain.
Q. What is a counterclaim?
A. Once the person you are suing comes to court, that person can sue you within the same lawsuit. This is called a counterclaim.
Q. What are a plaintiff and a defendant?
A. A plaintiff is the person starting the lawsuit. A defendant is the person who is being sued.
Q. What usually happens on the first court date?
A. A judge will look at the case and may discuss the possibility of settlement or agreement. If the case is not settled, it will be scheduled for arbitration or a trial depending on the court.
Q. I received a summons and complaint. What should I do?
A. Carefully read the papers you received. You will find the deadlines for filing an "Answer." You must file an answer to avoid automatically losing the case. You may want to go to the Clerk's Office of the court named on the papers to discuss filing the answer. The answer must include the name of the case and must be notarized. It should include your "defenses" (for example, why you do not believe you owe the money). It can also include your counterclaims.
Q. Can I have a jury trial?
A. The plaintiff and the defendant both have the right to ask for a jury trial when the lawsuit asks for money. You must ask for a jury trial in writing and within certain time limits. You must follow the rules for notifying the defendant about your request. There is a filing fee. The clerk's office can explain the requirements to you.
Q. What happens if a plaintiff or a defendant doesn't come to court?
A. If a plaintiff doesn't come to court on the scheduled court date, the case can be thrown out. If a defendant doesn't come to court, the case may be decided against the defendant with a "default judgment."
Q. I paid a judgment against me, but the records don't show this. What should I do? 
A. It is possible that the plaintiff did not file a document called a "satisfaction of judgment." You can contact the plaintiff (or the plaintiff's lawyer)to find out if this document was filed or when it will be filed. If this does not work, you can write a letter to the court explaining the situation and showing proof that you paid the judgment.
Q. I heard Court can be stressful and costly. Are there other ways to resolve my dispute?
A. Yes. Mediation is a free or low-cost option for many disputes. Mediation allows you to resolve your dispute outside of court, saving time and money and reducing stress. You also have more control over the outcome.

Figeroux & Associates
26 Court Street, Suite 701
Brooklyn, NY 11242
Phone: 718-834-0190
Fax: 718-222-3153

Child Custody & Visitation

Q. What is custody?
A. There are two parts to custody. One is the right and responsibility to make decisions for a child (legal custody). The other is where a child will live (residential or physical custody). 
Q. How old does a child have to be before a New York court can't make orders about the child's custody and visitation?
A. Eighteen.
Q. What is the difference between joint custody and sole custody?
A. In joint custody, the parents make major decisions about the child together - decisions about education, health, and religion, for example. The smaller, day-to-day decisions in joint custody are made by the parent who is physically caring for the child at the time. In sole custody, just one parent has the right to make the major decisions. 
Q. In awarding custody, do New York courts favor mothers more than fathers or fathers more than mothers?
A. No. Today's courts do not favor either parent more than the other. The law says a custody award is based on what's best for the child.
Q. What do courts think about when they decide what's best for a child?
A. Many things, including: 
which parent has been the main care giver/nurturer of the child 
the parenting skills of each parent, their strengths and weaknesses and their ability to provide for the child's special needs, if any 
the mental and physical health of the parents 
whether there has been domestic violence in the family 
work schedules and child care plans of each parent 
the child's relationships with brothers, sisters, and members of the rest of the family 
what the child wants, depending on the age of the child 
each parent's ability to cooperate with the other parent and to encourage a relationship with the other parent, when it is safe to do so

Q. Are there ways to settle custody/visitation cases without going to trial?
A. When you come to court about custody or visitation with your child, you may have a choice: whether to litigate your case before a judge (or referee) or to have your case referred to mediation.
Q. What is Custody/Visitation Mediation?
A. Mediation is a voluntary and confidential process to resolve conflicts. A trained, neutral person (the mediator) can help you develop a parenting plan that will work for your particular family. The mediator will not make any decisions; you will speak and decide for yourself. 
Mediation helps you learn how to communicate with the other parent about issues concerning your child. 
Mediation can help you understand your situation in new ways so you can resolve your conflicts. 
Mediation gives you the chance to discuss all the issues affecting your child, not just the legal ones. 
If you reach an agreement, it is sent back to court on your adjourn date. If the judge or referee agrees, it can become a court order.
Q. How does domestic violence affect a custody decision?
A. Domestic violence against either a parent or a child is considered in deciding custody. Even where the violence was not committed in a child's presence, it can still affect the child and will be considered. Domestic violence may be one act or it can be a pattern of acts. It can be physical, sexual, economic, emotional, or mental abuse. 
Q. If one parent has sole custody, can the other parent see the child?
A. The courts generally want children to have a relationship with both parents. In most cases they will let the parent who doesn't have custody have visits with the child.
Q. What kind of visits?
A. Visits can be unsupervised, supervised, or therapeutically supervised, and may also involve a safe place of exchange or a monitored exchange: 
Supervised Visits: A parent can't be alone with the child. The court will choose someone to supervise the visits if there are serious concerns about a parent's ability to act properly with the child or where there has been domestic violence. 
Therapeutic Supervised Visits: A mental health professional supervises the visits and can try during the visits to improve the parenting skills of the parent. 
Neutral Place of Exchange: A safe location where a child goes from one parent to the other for visitation. Examples: a police station, school, library, or mall. 
Monitored Transition: A third person is present when the child goes from one parent to the other for visitation. The reason for this is to make sure of the child's safety and a calm situation for the child.
Q. What is an Attorney for the Child?
A. An Attorney for the Child (formerly known as a Law Guardian) is an attorney chosen by the court to be the child's lawyer during a custody/visitation case.
Q. What is a Forensic Evaluator?
A. A Forensic Evaluator is a psychiatrist, psychologist, or social worker chosen by the court. The evaluator gives information about the family in a custody/visitation case. The evaluator will talk to the family members and other mental health professionals who have worked with the family, and can give psychological tests. The evaluator will send a report to the court and can be a witness in the case.
Q. I'm a relative who wants legal custody. What happens in those cases?
A. The law says grandparents, aunts, uncles, and other relatives who want legal custody have to show the court that the parents are not fit to care for the child - for example, that the parents have abandoned, neglected, or abused the child or that there are other extraordinary issues about the parents' care. If the court agrees about these things, the court can then consider whether it would be best for the child for the relative to have legal custody instead of one or both of the parents.
Q. I want to have a court custody or visitation order changed. How do I do this?
A. You start a case to "modify" the order. Talk to a clerk in the court where the order was made. Custody and visitation orders may be changed if the court decides that things have changed and that modifying the original order would be best for the child. 
Q. Do I need a lawyer for a Family Court custody or visitation case?
A. Only you can decide this for your case. You have the right to hire a lawyer. If you can't afford a lawyer, the court can appoint one for you free of charge if the court decides that you qualify for this. 
CourtHelp is grateful to the New York State Unified Court System's Ninth Judicial District Committee to Promote Gender Fairness in the Courts. Their pamphlet, "How Decisions About Child Custody Are Made," has been used with the Committee's permission for most of the material on this topic.

Figeroux & Associates
26 Court Street, Suite 701
Brooklyn, NY 11242
Phone: 718-834-0190
Fax: 718-222-3153

Traffic Cases

Q. I got a traffic ticket. Where do I go?
A. The name and address of the court is listed on the ticket with the date and time that the case will be heard in court.

Q. What will happen if I do nothing about the ticket?
A. A warrant can be issued for your arrest and your license can be suspended.

Q. What happens if I plead guilty?
A. A fine and mandatory surcharge can happen. Also, if the charge is a moving violation like speeding, red light, or stop sign, points will attach to the driver's license that can make the driver's auto insurance rates higher. Certain traffic infractions can result in a jail sentence of up to 15 days.

Q. What happens if I plead not guilty?
A. Your case will be scheduled for trial. You can decide to change your plea later. You can try to work out an arranged sentence with the prosecutor, and find out if the court will agree to the arrangement.

Q. What is a supporting deposition?
A. A supporting deposition is a document that has information about why the ticket was given, the time and location of the stop, and other information about what happened. If you want to see that document, you can check the box on the ticket for this.

Q. Why can't the court accept my insurance card as proof of insurance of my vehicle?
A. You can still have an insurance card after your insurance has been canceled. That is why an original letter from the insurance company or agent is required.

Q. Do I need a license to attend driver's improvement school?
A. Yes.

Q. My license was suspended. How do I get it back?
A. After getting written permission from the judge who made the decision, an application can be made to the Department of Motor Vehicles (DMV). Final approval is with the DMV.

Q. I was charged with DWI and my license was taken away. My case was then dismissed but the DMV won't give me back my license. What do I do?
A. The final determination about giving back the license is with DMV.

Figeroux & Associates
26 Court Street, Suite 701
Brooklyn, NY 11242
Phone: 718-834-0190
Fax: 718-222-3153

Artists & O-1 Petitions

One of the challenges in preparing an O-1 petition is obtaining three years of status for the beneficiary. This is particularly true for artists whose cases require an itinerary that projects three years into the future. Often the artist might have only a few confirmed gigs covering just a short period of time. In such a case, how can you obtain a full three-year period? This practice pointer will focus on proving future engagements and activities to qualify for the three-year maximum duration of an O-1 petition.

Petitioner. The petitioner/employer/sponsor should be identified early on in the O-1 process. This should be the first step in processing an O-1 petition, as there is no point in developing a full O-1 case without a confirmed petitioner. After filing the case, the petitioner must assume responsibility for (1) notifying USCIS of any change in the terms and conditions of employment which might affect eligibility for O status,

1- (2) notifying USCIS if the petitioner no longer employs the beneficiary,
2- and (3) payment of return transportation.
3- An O-1 artist can be sponsored by a U.S. employer, U.S. agent, or a foreign employer through a U.S. agent. Although the artist cannot petition for him/herself for O-1 status, the regulations recognize that O-1 cases can involve workers who are traditionally self-employed.
4- Event or Activity. O-1 status may be granted for the duration of an event or activity for a maximum of three years.
5- Once the petitioner has been identified, the next step is to identify the “event” or “activity”
6- in which the artist will participate. A group of related activities may be considered an event.
7- If the event or activity does not cover three years, you need to determine if you can project additional performances to demonstrate a three-year period inclusive of the confirmed, short-term event.

Contracts and Intent Letters. The next step is to gather required evidence for the O-1 petition. This will include signed contracts or offers,
8- plus an itinerary.
9- When the event is for one entity, there is typically a contract or offer letter signed by the beneficiary and entity/petitioner that includes material terms such as start and end dates and compensation. For example, an actor coming to perform in a film would have a detailed contract or at least a sufficiently detailed “deal memo,” signed by both the actor and the production company, that includes the major terms of the contract.

If the artist will perform various engagements at multiple venues, providing evidence of the engagements becomes more complex. An example might be a singer touring the U.S. to perform at different venues. There would typically be a contract between each venue and either the singer or the singer’s booking agent. If such contracts do not exist, the artist will need to obtain contract or letter of intent, preferably from each and every venue listed on the itinerary. If this is not possible, obtain contracts or letters from a sufficient number of venues to intermittently cover the span of the itinerary.

Of course, even if such contracts exist, it is quite common that the artist does not yet have contracts or negotiated arrangements for performances more than a few months into the future. Where the artist will want O-1 status for more than those few months, the best approach is to project performances and develop a combined confirmed/tentative itinerary. To do this, you must obtain letters of intent from the event producer or the venue or its representative. These letters should state that XYZ venue would like the artist to perform in some future time frame. Include in the letter the nature of the performance and the anticipated performance fee.

10- Petitioner as an Agent. Where the petition is filed by a petitioner/agent
11- for an artist who will perform at multiple venues, the contract or letter of intent should include certain additional information. This is because USCIS considers each venue a separate “employer” and requires such a petitioner to also represent those various venues “for purposes of filing the petition.”
12- Thus, you should make sure the contracts or intent letters from each employer/venue contain language that reads along the following: “XYZ venue authorizes the petitioner to act in the place of XYZ venue as an agent for the limited purpose of filing the O petition.”

In sum, whether the petitioner is a sole employer or an agent “representing” multiple venues, the best way to obtain a full three-year validity period for your client is to project performances over the three years. There should be an itinerary of confirmed and tentative performance dates. In support of events listed on the itinerary, there should be a contract or letter of intent. The “best practice” is to include a contract or letter for each and every event on the itinerary. If this is not feasible or practical, be sure to cover enough events spanning the itinerary from the start date to the end date.


 1- 8 C.F.R. § 214.2(o)(8)(i)(A).
2- Id.
3- 8 C.F.R. § 214.2(o)(16).
4- 8 C.F.R. § 214.2(o)(2)(iv)(E).
5- 8 C.F.R. § 214.2(o)(6)(iii)(A).
6- 8 C.F.R. § 214.2(o)(3)(ii).
7- Id.
8- 8 C.F.R. § 214.2(o)(2)(ii)(B).
9- 8 C.F.R. § 214.2(o)(2)(ii)(C).
10- An artist’s past performances at a certain venue could serve as the basis for anticipated performances later during the three-year validity period. For example, a comedian who performs at least twice a year at a given comedy club in New York City could produce evidence of past performances along with a letter from the club stating that the venue looks forward to the comedian performing there each spring and fall over the next three years. This evidence, coupled with other evidence showing a series of performances, could evidence sustained performances over a three year period.

11- In this context, an agent is not necessarily the agent typically referred to in the entertainment industry. The agent for the purpose of filing an O-1 petition can be any entity that assumes O-1 obligations inherent in filing the petition on behalf of an artist. See 8 C.F.R. § 214.2(o)(2)(iv)(E).

12- See USCIS Memorandum. Requirements for Agents and Sponsors Filing as Petitioners for the O and P Visa Classifications  Click here.

Figeroux & Associates
26 Court Street, Suite 701
Brooklyn, NY 11242
Phone: 718-834-0190
Fax: 718-222-3153

Can Bankruptcy Get Rid of Tax Debt When the Man Has My Number?

Bankruptcy can be an effective way to get rid of tax debt, but you must first understand
some basic principles about taxes and bankruptcy law.

“Let me tell you how it will be.
There’s one for you, nineteen for me.”

So begins my personal favorite Beatles song. Taxman written as a searing attack on the
British Crown while the Beatles struggled with Her Majesty’s tax collectors in the 1960s.
It would be a welcome tune on any Tea Party mix tape. So, if you’re not John, Paul,
George and Ringo, what do you do about taxes, and how does bankruptcy come into it?
Well, about the dumbest thing anyone in these United States can do is fail to file your
income taxes. (Note that I said “file,” not “pay.”) Whatever harebrained scheme you’ve
been told will work to avoid paying taxes is just that, a scheme. I have seen the biggest,
strongest tax protesters quivering in fear when the IRS comes a knockin’ with its arsenal
of liens, attachments, garnishments, levies, and the old stand-by, jail time. Repeat after
me: “I’ll always file my tax returns.”

Now, how will bankruptcy help you when you cannot PAY your taxes? I don’t have
space in this short blog to cover all the bankruptcy rules about discharging or getting
rid of tax debt. I’m just gonna cover the big ones.

Keep in mind that the goal in bankruptcy is to discharge debt. Taxes are just a form of
debt. The Bankruptcy Code limits the discharge of tax debt, and all the ins and outs of
those provisions are complex. However, there are special rules you can follow to get rid
of (or discharge) tax debt. First Rule is, guess what? You have to FILE your tax returns!
Once you’ve filed the returns, even if they are late, then you see if you can discharge the
The Second Rule deals with time. You’ve gotta be patient. You can only discharge
income taxes if they’re for a tax debt that’s been due and payable more than three years
prior to the date you file bankruptcy. Simply put, you can’t discharge income taxes for
the last three years that are due before you file bankruptcy.

Like everything, it’s not quite that simple. Income tax returns are due on April 15 of
every year. UNTIL April 15, the previous year’s taxes aren’t due and payable. For
example, until April 15, 2012, income taxes for 2011 are NOT due and payable. That
means that if you want to see if you can discharge taxes you’ve gotta wait until after the
April 15 deadline for filing for the last three tax years you’re counting. That’s very
important if you owe taxes for tax year 2006, for example. If you file before April 15,
2010, then the last three years you can’t get rid of are: 2008, 2007 and 2006 because
2009's aren’t yet due and payable. So, you have to wait. Be patient and file after April
15, 2010 to discharge 2006 income tax debt.

The other part of the Second Rule dealing with time is that the tax returns themselves
have to have been filed more than two years’ prior to the date you filed bankruptcy.
That’s real important for you tax protesters out there. If you file ten years’ of income tax
returns all at one time you’ve gotta wait to file bankruptcy, even though they’re for tax
years that are way more than three years due and payable. You’ve gotta wait until two
years from the date you filed all those returns to file bankruptcy or none of the tax debt
is discharged.

I can’t remember how many clients I’ve had come in who’ve had to file back returns
and wait to file bankruptcy before they could discharge taxes. I had someone the other
day who filed about six years of returns for years which all were more than three years
ago. However, they just filed the returns. Thus, we agreed that they will be patient. I
will be filing bankruptcy for them in 2012 so that two years will have gone by from the
date they filed their tax returns.

Space does not permit me to cover all the complexities of income tax discharge issues,
and the options available in bankruptcy to deal with them, and this post is no substitute
for the advice of an experienced bankruptcy attorney. But, more information is
available on my website on whether you can discharge back taxes and not have to pay
them at all in Chapter 7 bankruptcy, whether you can pay a reduced amount and stop
penalties and interest from running in chapter 13 or chapter 11 bankruptcy and how tax
liens and levies are handled.
Just remember the Big Rule: unless you can leave your country like the Beatles, you
have to file your taxes. And you may have to pay them, unless maybe I can help you
with them in bankruptcy court.

(See the special tax disclaimer on the Disclaimers section of this website).
Filing bankruptcy will stop immediately the taxing authorities from garnishing wages,
seizing and selling assets, and closing your business. It will also stop them from taking
other actions like filing tax liens. Finally, it usually will take the matter out of the hands
of the taxing agent with whom you are dealing and put it in the hands of a trained
person in the bankruptcy department of the taxing authority, which may defuse a
situation where it may seem to have gotten personal.

That being said, this is a very complicated area and depends on, well, a TON of factors,
including the type of taxes you owe, the years for which those taxes are owed, who was
responsible for paying the taxes, whether the taxes are an automatic lien on any real
estate, whether the taxing authority has filed a lien, and whether you have actually filed
tax returns on time and, if not, when you filed them. It depends on how much time has
gone by between the time the taxes were filed and when they were assessed, and when
the bankruptcy was filed.

Finally, it depends on which type of bankruptcy you file. It may depend on whether
your ex-spouse filed tax returns for you and you may claim innocent spouse protection.
I would advise you to make an appointment with a tax attorney who is knowledgeable
in this area and have all of your facts straight regarding the above questions for the
appointment. Also, understand that you need to have a copy of all of your tax returns
and notices from the taxing authority for any attorney to advise you properly. A change
in one variable may mean the difference between what the attorney’s having told being
correct or totally wrong. It will not be the attorney’s fault if you provide incorrect or
incomplete information.

In general, if you file a chapter 7 bankruptcy and the INCOME taxes are for a tax year
that is due and payable more than 3 years ago (for example, after April 15, taxes are
deemed due and payable so, after 4/15/06 we are talking about 2002 taxes); AND if the
income tax returns were filed more than two years before the chapter 7 bankruptcy
filing, then you may be able to discharge those taxes. There also is a specific
requirement regarding the number of days before the filing that the taxes were assessed
which you must consider to find out whether those taxes are dischargeable.

Also, if a tax lien has been filed, then you have to pay the IRS/SC/NC the value of its
collateral (which is everything you own, minus the value of any superior liens), even
though the debt is discharged by the chapter 7 bankruptcy. You may have to sue the
IRS to figure out the value of what you have to pay the IRS to get rid of the lien. And
then, of course, the SC Department of Revenue does not recognize some of these

These same rules apply to state income taxes. Sales taxes are dischargeable in chapter 7
bankruptcy. Property taxes for personal property taxes are dischargeable as long as the
chapter 7 bankruptcy is filed before the taxes are due and payable.

Regarding withholding taxes: you just have to pay them.

If you file a chapter 13 bankruptcy there are a few extra rules, but all of the above rules
are the same. However, remember that a chapter 13 bankruptcy plan is a way for you to
repay your debts. A dischargeable debt in a chapter 13 payment plan is just a type of
debt of which you could, if you qualify, pay less than 100%. For example, all of the
dischargeable debts listed above, if they were paid in a chapter 13 bankruptcy plan, are
the types of debts that you could pay at the same percentage rate as your VISA bill and
doctor bill… perhaps as low as 1% of the balance. You also would not pay interest in
many situations and tax penalties and interest usually stop at the time of the chapter 13
bankruptcy filing.

In brief, the same rules apply if you file a chapter 11 bankruptcy, except you have to
pay interest on the taxes, but penalties stop and you do not necessarily have to pay any
tax payments until your chapter 11 bankruptcy payment plan is confirmed, or
approved, which could take months or even longer.

If you file a chapter 13, you must keep your taxes filed and current for the years you are
in the chapter 13 repayment plan or your case can be dismissed. Also, you have to send
the trustee a copy of your federal tax return for each year you are in the chapter 13
payment plan. Finally, you must have filed all of your tax returns for a chapter 13
repayment plan to be confirmed.

visit:  for more information.

Figeroux & Associates
26 Court Street, Suite 701
Brooklyn, NY 11242
Phone: 718-834-0190
Fax: 718-222-3153

Can An Illegal Immigrant File For Bankruptcy?

An illegal immigrant can file for bankruptcy in the United States. There is no reference to a citizenship requirement in the Bankruptcy Law. US Code §109 provides the requirements to be a “debtor.” The most common way to be eligible to be a debtor is to have a “domicile” in your state. A domicile “requires the physical presence of a person at the place of the domicile claimed, coupled with the intention of making it his present home.” Ellis v. Southeast Construction Co., Inc., 260 F.2d 280. The timing of where you use as a domicile can be tricky if you have not been domiciled in your state for two years.

Assuming you’ve been living in your home state for a while, what other hurdles might an illegal immigrant face? You don’t need a Social Security card to file for bankruptcy, but if you don’t have one, you will need to provide an ITIN. An ITIN is an Individual Taxpayer Identification Number, which is often used by people who can’t obtain a Social Security Number but want to pay taxes to avoid problems with the IRS.

If you have been using a SSN that isn’t yours, don’t put it on your bankruptcy petition! Bankruptcy courts don’t like being lied to and will serve up jail time to those who attempt fraud. Not only can you get in legal trouble for false statements on your bankruptcy forms, but debts incurred using a SSN that wasn’t yours may not be dischargeable under the Bankruptcy Code. In New York and in many other states, you will also need to be able to prove your identity at the 341 meeting, also known as the First Meeting of Creditors. You will need an ID document that proves your SSN or ITIN such as a SSN card or a pay stub, and a photo ID, such as a driver’s license or passport.

Of course, there is a long list of other things you will need for your bankruptcy, but those are requirements that all debtors must face, not just those without citizenship. Bankruptcy is a complicated process, but there are few additional barriers to non-citizens.

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Figeroux & Associates
26 Court Street, Suite 701
Brooklyn, NY 11242
Phone: 718-834-0190
Fax: 718-222-3153

Can I Get Rid of My Taxes in Bankruptcy?

Many people are unaware that you can discharge income taxes in bankruptcy under certain circumstances. But, first a disclaimer. I am not an attorney and under the law,cannot give legal advice. Make certain to speak to a competent bankruptcy attorney (and believe me a lot of them are not) for advice specific to your case.


Generally, personal income taxes may be discharged when the taxes are at least three years old, were assessed at least 240 days prior to the bankruptcy filing and were voluntarily filed at least two years ago. If you are considering filing bankruptcy and the IRS has filed for you, (known as an SFR or Substitute for Return) consult an attorney prior to filing original returns! This is critical and must not be ignored. What taxes cannot be discharged in bankruptcy? Income taxes less than three years old; taxes filed less than two years ago and taxes assessed less than 240 days ago will not be discharged in a chapter 7 filing. While a chapter 7 filing may not be right for you, an attorney may well recommend that you file a chapter 13 which is a payment

What about payroll taxes? There are two portions which make up a payroll tax return, the trust fund which are the taxes withheld from the employees and the non-trust fund which are the taxes paid by the employer. Only the non-trust fund portion can be discharged and that is normally around 1/3 of the total tax. In addition, if you were a corporate officer and personally assessed for the Trust Fund Recovery Penalty, don't look to the bankruptcy courts for help as that is never dischargeable.

Also, even when taxes are dischargeable, it does not mean that you simply walk away from the entire tax bill. Exempt assets to which the court does not attach are still subject to a Notice of Federal Tax Lien if the IRS filed prior to the bankruptcy. Exempt assets can include equity in a home, equity in a car and accounts receivable.

I recently had a case where the client was shocked that the IRS was still coming after her even though the bankruptcy discharged the taxes. Though there is an ongoing dispute as to the value of the exempt assets, the IRS claims that their lien attaches to $19,000. We are currently negotiating with the IRS to see what they will accept to close out the case.

visit: for more information.

Figeroux & Associates
26 Court Street, Suite 701
Brooklyn, NY 11242
Phone: 718-834-0190
Fax: 718-222-3153