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  • Who’s tax refund is it?


    Who’s tax refund is it?

    Who’s tax refund is it? In re Gartman, 372 B.R. 790 (Bankr. S.C., 2007) In re Gartman, 372 B.R. 790 (Bankr. S.C., 2007)  This is an issue of first impression in this district. Bankruptcy courts in other districts have adopted three different approaches to determine the portion of a tax refund to which a debtor’s estate is entitled when a joint tax return has been filed with a non-debtor spouse. The majority approach holds that the tax refund from a joint tax return should be allocated proportionally between the husband and wife in accordance with their respective tax withholdings during the relevant year. See In re Kleinfeldt, 287 B.R. 291, 292 (10th Cir. BAP 2002); In re Edwards, 363 B.R. 55, 58-59 (Bankr.D.Conn.2007); In re Lock, 329 B.R. 856, 860 (Bankr.S.D.Ill. 2005); In re Smith, 310 B.R. at 323; In re WDH Howell, LLC, 294 B.R. 613 (Bankr. D.N.J.2003); In re Lyall, 191 B.R. 78, 85 (E.D.Va.1996); In re Gleason, 193 B.R. 387, 389 (Bankr.D.N.H.1996). Similarly, other courts have allocated the joint tax refund proportionally in accordance with income produced, which is the approach proposed by the Trustee in this case. See In re Levine, 50 B.R. 587 (Bankr.S.D.Fla. 1985); In re Verill, 17 B.R. 652, 655 (Bankr.D.Md.1982); In re Kestner, 9 B.R. 334, 336 (Bankr.E.D.Va.1981); In re Colbert, 5 B.R. 646, 648-49 (Bankr.S.D.Ohio 1980). The minority approach, advocated by the Debtor, holds that joint tax refund should be allocated equally between the husband and wife without regard to tax withholdings or income produced. See In re Innis, 331 B.R. 784, 787 (Bankr.C.D.Ill. 2005); In re Barrow, 306 B.R. 28 (Bankr. W.D.N.Y.2004); In re Aldrich, 250 B.R. In re Gartman, 372 B.R. 790 (Bankr. S.C., 2007) . . .
           This Court finds that South Carolina law is most consistent with the majority’s approach of dividing the tax return based on the parties’ respective withholdings. This approach is easy to administer and results in a fair allocation of the joint tax refund. The Trustee’s proposed approach of allocation based on the parties’ respective incomes appears to produce a similar outcome but has the potential of resulting in an inequitable distribution when one spouse withholds substantially more than the other. In re Gartman, 372 B.R. 790 (Bankr. S.C., 2007)