Tag: BIA

ARE BANKRUPTCY FEES TAX DEDUCTIBLE? IT DEPENDS WHO YOU ARE!#

Post author By Ira Smith
Post date November 16, 2016

are bankruptcy fees tax deductible

Are bankruptcy fees tax deductible: If you would like a free copy of our eBook: “Cost of Claiming Bankruptcy in Canada” – please CLICK HERE

Are bankruptcy fees tax deductible: Introduction

We are often asked the question “are bankruptcy fees tax deductible?”. This vlog attempts to answer that question for the various types of Canadian insolvency proceedings.

I caution that we are not income tax advisors; I am a licensed insolvency trustee. This vlog does not attempt to and does not replace expert income tax advice. If you have a specific situation, you should get advice from your professional income tax advisor.

Are bankruptcy fees tax deductible: What does Canada Revenue Agency say?

Costs incurred in a bankruptcy filing can be categorized as either: (i) incurred for the purpose of gaining or producing income from a business or property or; (ii) incurred for capital or non-income earning reasons. Another way of saying it is a taxpayer cannot deduct personal expenses but can deduct those categorized as business expenses. So are bankruptcy fees tax deductible? It depends on who you are.

Are bankruptcy fees tax deductible: Personal bankruptcy and (consumer) proposal restructuring

If you are the individual person who has too much debt and either restructures under one of the proposal provisions to avoid bankruptcy, or goes bankrupt, then your real obligation is not to pay professional fees. Rather, you are making payments to the licensed insolvency trustee in a restructuring to settle all of your debts or you have given up your non-exempt assets and may also be paying part of your monthly income as surplus income to your licensed insolvency trustee.

Under either scenario, the licensed insolvency trustee obtains their fee under the Bankruptcy and Insolvency Act (BIA). You as the individual debtor are not paying bankruptcy expenses to earn income. Therefore you are not entitled to any tax deduction for the amounts and property given to the licensed insolvency trustee.

are bankruptcy fees tax deductible

Are bankruptcy fees tax deductible: Corporate restructuring

Corporations attempt to restructure under either the proposal provisions of the BIA or the restructuring provisions of the Companies’ Creditors Arrangement Act (CCAA) for the purpose of avoiding bankruptcy and the end of its business. The purpose of the restructuring attempt is to stay an active corporation, preserving jobs, continuing to earn income and pay income tax. In this case, professional fees paid to legal and financial advisors would be tax deductible for the company restructuring.

As this vlog is only to answer the questions are professional fees tax deductible, I am not addressing the issue of the income tax treatment of the corporate debt forgiven in a successful restructuring. That is where I turn to professional tax advisors for the answer.

Are bankruptcy fees tax deductible: Corporate bankruptcy

In a corporate bankruptcy, the bankruptcy corporation’s assets would be taken over by the licensed insolvency trustee handling the bankruptcy, subject to the interests of the secured creditor(s) and trust claimants, if any. Therefore, there are no fees paid by the bankrupt corporation for the purpose of earning income. Hence, there is no tax deduction for professional fees to be taken on the bankrupt corporation’s final income tax return.

Are bankruptcy fees tax deductible: Receivership and secured creditors

Receivership is a remedy for secured creditors to enforce security. The secured creditor whose loan is in default, when in a place to enforce its security, appoints a receiver to take possession of the assets, formulate a plan to maximize the sale value, sell the assets and remit the proceeds to the appointing secured creditor, up to the amount outstanding under the security. The company in receivership does not incur professional fees, but the secured creditor does; to both legal counsel and to the receiver. Those professional fees incurred in the normal business of the lender are therefore tax deductible.

I will leave the topic of the income tax consequences for a secured creditor who suffers a shortfall when realizing upon assets covered by its security to the professional tax advisors.

are bankruptcy fees tax deductible

Are bankruptcy fees tax deductible: Purchaser of assets

Many times in corporate restructuring, the restructuring plan calls for the sale of assets. In both bankruptcy and receivership, the assets will be sold. The purchaser of assets will in such cases be a corporation. That purchaser corporation will need insolvency and income tax professional advisors in structuring and paying for the asset purchase. Those professional fees are tax deductible to the purchaser.

Are bankruptcy fees tax deductible: Unsecured creditors

In any of the insolvency processes discussed in this vlog, there will certainly be many unsecured creditors. The major unsecured creditors, especially in corporate insolvency proceedings will want to consult with professional advisors as to their rights and remedies when faced with an insolvent debtor.

Sometimes unsecured creditors make an application to Court to have a Bankruptcy Order made against a debtor. Both legal and trustee advice is necessary.

In either case, the professional fees are paid in the normal course of business and will be tax-deductible.

Are bankruptcy fees tax deductible: Do you need insolvency advice?

If you need insolvency advice, either because you or your company have too much debt, or one of your major customers are experiencing financial problems, the professional fees may very well be tax deductible. The Ira Smith Team acts on behalf of both debtors and creditors. We have successfully restructured many people and corporations, thereby allowing them to avoid bankruptcy. We have also acted on behalf of both secured and unsecured creditors both in an advisory role and an enforcement role.

Contact a debt expert – a professional trustee – who can help get you on solid financial footing Starting Over, Starting Now. Ira Smith Trustee & Receiver Inc. can help keep you from financial ruin with immediate action and the right plan. Call us today for a free, no-obligation consultation.

Tags are bankruptcy fees tax deductible, avoid bankruptcy, Bankruptcy, bankruptcy fees, BIA, Consumer Proposal, corporate restructuring, income tax, Ira Smith Trustee, licensed insolvency trustee, professional fees, proposal, surplus income, tax, tax deductible

Brandon Blog Post

Division One Proposal Ontario Documents: corporate restructuring proposal

Post author By Ira Smith
Post date October 19, 2016

[monkeytools msnip=”https://monkeyplayr.com/playr.php?u=5173&p=21671″]

Corporate restructuring proposal

I want to talk to you today about the required division one proposal Ontario documents and division 1 proposal restructuring proceedings under the Bankruptcy and Insolvency Act (Canada) (BIA). You may have heard about this section of the BIA also called Chapter 11 bankruptcy proceedings. The reason is that the corporate restructuring provisions under the BIA are in Canada under Division I of Part III of the BIA, while the corporate restructuring provisions in the United States is under Chapter 11 of the US Bankruptcy Code. We are going to focus today on the restructuring provisions under Division 1 Proposal proceedings of the BIA.

First steps

The first thing the insolvent debtor must do is hire the services of a licensed insolvency trustee (formerly known as a trustee in bankruptcy). The division 1 proposal proceedings apply to corporate restructuring or the restructuring of debt of an individual with a complex debt situation and a debt level of $250,000 or more. We are going to talk today about corporate restructuring and the Division One Proposal Ontario documents required for this process.

The first step in any corporate restructuring is for the board of directors to understand and resolve that the corporation is insolvent, that it needs to restructure under the Division 1 Proposal section of the BIA and that it needs to retain a licensed insolvency trustee to do that. The corporation working with the trustee then has a choice. It can first file what is called a Notice of Intention To Make A Proposal, which is a notice to its creditors that it will be shortly making a restructuring proposal. Or it can just file the real division one proposal itself with the licensed insolvency trustee.

Documents and process

The licensed insolvency trustee has to be satisfied that: (i) all the relevant information has been obtained; (ii) the company has a good chance of actually implementing this proposal; and (iii) the company’s cash flow is enough that it can run the business successfully and pay its ongoing debts in full through the ongoing restructuring proceedings, then the licensed insolvency trustee continues the restructuring process.

The licensed insolvency trustee will mail to all the known creditors a copy of:

the proposal
a statement of the company’s assets and liabilities
a list of creditors
a proof of claim form
the voting letter

The meeting of creditors is then held and if the proposal is accepted by the required majority then the proposal trustee takes the proposal documentation to Court for approval. Once the proposal is accepted by the creditors and approved by the court there is now a contract between the company and its creditors about how the company is going to restructure and what amount of money is ultimately going to be paid to the creditors through the licensed insolvency trustee.

Implementation

The company then carries its proposal as it continues its operations. It carries out its restructuring business plan and hopefully is successful in turning the corner and generating profits. The company would then be saving a certain amount of its profits in cash and pays the amounts required under the corporate restructuring plan over to the licensed insolvency trustee to create the restructuring fund. The licensed insolvency trustee then makes the distribution to the creditors as called for in the proposal itself. Once all the payments have been made, the company has successfully restructured and carried on its business free from the proposal proceedings.

What if your company has too much debt – division one proposal?

If your company has more debt than it can afford to pay contact a professional trustee immediately. We’re experts in debt management and corporate restructuring and with immediate action and the right plan we can help you get your company’s finances back on track Starting Over, Starting Now. Give Ira Smith Trustee & Receiver Inc. a call today.

Tags Bankruptcy and Insolvency Act, BIA, chapter 11, corporate restructuring, division 1 proposal, division one proposal, division one proposal ontario documents, Ira Smith Trustee, licensed insolvency trustee, proposal, restructuring business plan

Brandon Blog Post

INSOLVENT ESTATES CANADA 3 QUESTIONS WE ALWAYS ARE ASKED

Post author By Ira Smith
Post date September 28, 2016

[monkeytools msnip=”http://monkeyplayr.com/playr.php?u=5173&p=20198″]

INSOLVENT ESTATES CANADA

Insolvent estates Canada: Introduction

We previously discussed the aspect of death and insolvency in two blog posts:

When it comes to insolvent estates Canada, among the various questions asked of us, these three questions are always asked:

What are the duties of an executor/personal representative when the estate has more liabilities than assets?
Can the executor(s) pay bills before the creditors actually file a claim?
Do executors or beneficiaries have to pay creditors out of their own pocket if the estate is insolvent?

We prepared the above video to answer these 3 questions. Below is a more detailed discussion of the last 2 questions.

Insolvent estates Canada: The loss of life of a debtor occurs; who’s responsible for the money owed?

Although some creditors may try to collect from the spouse or other relatives, money owed doesn’t transfer because of marriage or death. If the debt is “joint”, the survivor has taken on the obligation directly and is liable on the account.

Debts are normally paid out of the assets of the property of the deceased before distributions to heirs (before paying heirs, the deceased’s debts must be paid). If the estate is insolvent (the assets of the estate are not enough to pay the amounts owed), then the order of charge is commonly prescribed by way of provincial rules.

If warranted, the executors could apply to Court for an order letting them assign the deceased’s estate into bankruptcy. In that situation, then the Bankruptcy and Insolvency Act (Canada) (“BIA”), the federal legislation, will prescribe the order of payment.

If insurance was bought to pay off a specific debt such as a bank issued mortgage or loan, then upon the death of the individual the insurance company will repay the bank and the debt will not exist in the deceased’s estate.

What are your alternatives and your responsibilities, as an executor upon the death of a debtor?

If the estate is insolvent, before or after paying the testamentary costs, you have alternatives:

Pay the money owed out of your personal resources.
Allow the estate to go bankrupt.

Emotionally you may wish to pay the money owed because you believe in your heart that it is the proper thing to do and you don’t wish to dishonour the memory of your loved one with a string of bad debts and bankruptcy. But before you decide, you need to know that there is no liability for an executor or heir to take on the debts of the deceased.

Even though there may be a stigma connected to bankruptcy, the reality is that you are not responsible for the money owed, so why should you assume this burden and in all likelihood put your family in financial jeopardy?

Bankrupting the estate makes economic sense. An executor can sidestep the minefield of issues involved in administering the deceased’s insolvent estate by bankrupting it.

What should executors and heirs be aware of?

If you and/or another family member is the executor, be aware:

The executors have a legal responsibility for all acts completed, and for all acts not accomplished that they should have.
Notwithstanding everyone’s best efforts, they may unknowingly be inviting proceedings from lenders or heirs for difficult issues. This happens when family members, who are well-intentioned but not skilled at monetary, insolvency or legal issues, are executors because she or he is named, however actually has no know-how in this region.
By putting the property into bankruptcy, which requires the previous approval of the bankruptcy court, the executors are relieving themselves of personal legal responsibility because the estate will now be administered under the BIA and all creditors by the Licensed Insolvency Trustee.
The executor will relieve him or herself of coping with collection calls.
As long as there are sufficient funds in the estate to pay the funeral costs, that can be paid out first in the case of a bankruptcy of the deceased’s estate because of S.136. (1)(a) of the BIA states:

Priority of claims

“136 (1) Subject to the rights of secured creditors, the proceeds realized from the property of a bankrupt shall be applied in priority of payment as follows:

(a) in the case of a deceased bankrupt, the reasonable funeral and testamentary expenses incurred by the legal representative or, in the Province of Quebec, the successors or heirs of the deceased bankrupt;”

It is the first debt with a preferred status that can be paid.

What should I do if I am an executor and I find that the liabilities are greater than the assets?

If you are an executor of a will and you find out that the estate is insolvent, after speaking with the estate lawyer, contact Ira Smith Trustee & Receiver Inc. as soon as possible. We will evaluate the situation and give you sound financial advice on how best protect yourself as executor and the heirs, so that you will be able to go ahead Starting Over, Starting Now.

THIS VLOG WAS INSPIRED IN PART BY OUR eBOOK – PERSONAL BANKRUPTCY CANADA: Not because you are a dummy, because you need to get your life back on track

Tags Bankruptcy, Bankruptcy and Insolvency Act, BIA, creditor, Debt, executor, heir, insolvent estates canada, Ira Smith Trustee, licensed insolvency trustee, priority

Brandon Blog Post

#VIDEO-HISTORY OF BANKRUPTCY NEVER GETS ANCIENT#

Post author By Ira Smith
Post date September 21, 2016

HISTORY OF BANKRUPTCY NEVER GETS ANCIENT

History of bankruptcy: Introduction

A subject that rarely gets written about is the history of bankruptcy. Understanding the history of the Canadian bankruptcy system and how it has evolved, gives a helpful look into how it works and help Canadians and Canadian society.

History of bankruptcy: Helping the debtor

The Bankruptcy and Insolvency Act (BIA) provides a way for the orderly liquidation of a bankrupt’s assets and distribute that value to the creditors. In this way, the BIA assists the insolvent debtor who needs a way to be forgiven for his or her financial sins, relieved of their burden and be returned to society as a productive contributor. The BIA assists creditors in providing the system of turning the assets into cash to be distributed to them, and not keeping those assets either out of their reach or just laying in an unproductive state. The BIA also is a system of checks and balances, so that it provides both Canadians and foreigners that there is a vibrant and safe Canadian economy.

History of bankruptcy: Helping the creditors

The BIA also ensures that there is a fair and logical system in place to deal with the assets of the debtor and the claims of creditors. By invoking it, it avoids a race among creditors to attempt to get the right to seize assets in an uncontrolled way. Creditors are paid according to their place in the hierarchy of claims as described in the BIA as follows:

Trust claimants who are outside of the bankruptcy scheme
Secured creditors, who are also outside the bankruptcy scheme as long as they hold good and valid security
Unsecured creditors:
- Preferred
- Ordinary

History of Bankruptcy: bankruptcy alternatives

The BIA also provides debtors to opt for avoiding bankruptcy by making a Proposal. In the case of corporations, a Proposal; for people, either a Proposal or Consumer Proposal, depending on the level of their debt. Proposals are the bankruptcy alternative that allows companies or people to financially rehabilitate themselves and avoid bankruptcy, while offering the creditors more than they would receive in a bankruptcy. In this way, the BIA is both a liquidation and a rehabilitation statute, benefiting both debtors and creditors.

History of bankruptcy: The BIA

The present bankruptcy statute came into force on July 1, 1950. The title of the statute was amended from the Bankruptcy Act to the Bankruptcy and Insolvency Act in 1992, to show the statute had matured into a full financial rehabilitation statute, that could be used to carry out a bankruptcy alternative. Further amendments were made in 1997 to deal with a number of practical issues that became problematic for Canadian society applying the BIA, including:

Claims for student loans
Priority status for claims for spousal and child support
Payment from a bankrupt’s earnings
Environmental claims
Liability protection for Directors
Securities firm insolvency
International insolvency

In 2005 there were another round of comprehensive amendments to the BIA mainly dealing with the new legislation of the Wage Earner Protection Program Act (WEPPA), designed to protect employees for their unpaid amounts when their employer goes either bankrupt or into receivership.

History of bankruptcy: Rehabilitation

It is a fundamental purpose of the BIA to offer the financial rehabilitation of insolvent persons. The BIA permits an honest but unfortunate debtor, be it a corporation or an individual, to secure financial restructuring through the Proposal provisions, or a discharge from bankruptcy for people. It allows for a fresh start for the debtor to resume his or her place in the business community and society.

The BIA attempts to offer balance by allowing an investigation to be made of the affairs of the debtor and setting aside fraudulent transactions so that ordinary unsecured creditors can share in a distribution, rather than someone else being the beneficiary of those questionable transactions. Finally, the BIA allows for creditors to purse actions against the bankrupt either through the Licensed Insolvency Administrator or directly by a creditor or group of creditors.

History of bankruptcy: The Courts

The general approach to the BIA by the courts is that it is a commercial statute. To administer the process it is left largely in the hands of business people. Technical and legal objections and manoeuvres are not given weight beyond those that are necessary for the proper implementation and interpretation of the BIA. Settlement and resolution are rewarded, litigation and court proceedings are not.

History of bankruptcy: What to do if you have too much debt

I hope this history of bankruptcy provides you with a good look into how the bankruptcy system developed in Canada and how it works. If you’re suffering from too much debt and are seeking debt relief options, contact Ira Smith Trustee & Receiver Inc. Our approach for every file is to create an outcome where Starting Over, Starting Now becomes a reality, beginning the moment you walk in the door. You’re only one call away from taking the steps towards a debt free life.

THIS VLOG WAS INSPIRED IN PART BY OUR eBOOK – PERSONAL BANKRUPTCY CANADA: Not because you are a dummy, because you need to get your life back on track

Tags assets, avoiding bankruptcy, Bankruptcy, bankruptcy alternatives, Bankruptcy and Insolvency Act, BIA, Consumer Proposal, creditors, Debt, debt relief, debtor, history of bankruptcy, insolvent, Ira Smith Trustee, licensed insolvency administrator, liquidation, proposal, trustee, WEPPA

Brandon Blog Post

PERSONAL BANKRUPTCY BLOG – TRUSTEE EXPLAINS BANKRUPTCY OPTIONS

Post author By Ira Smith
Post date July 6, 2016

[monkeytools msnip=”https://monkeyplayr.com/playr.php?u=5173&p=20586″]

Introduction

Our Brandon’s Blog certainly is a personal bankruptcy blog, but it is more than that. Brandon writes on various finance and insolvency-related topics including corporate restructuring, corporate bankruptcy, alternatives to bankruptcy, credit counselling, restructuring through a consumer proposal or a Division I Proposal or the Companies’ Creditors Arrangement Act (CCAA).

Every Monday and Wednesday night Brandon posts to Brandon’s Blog. Monday night is a blog and Wednesday night is a vlog. Just to remind you what this means, here are dictionary definitions:

blog Pronunciation: /blɒɡ/noun

A regularly updated website or web page, typically one run by a person or small group, written in an informal or conversational style: you can add personal bankruptcy blog to the growing list of insolvency-related material popping up on the Web

vlog Pronunciation: /vlɒɡ/ noun

A blog in which the postings are primarily in video form: you can add personal bankruptcy vlog to the growing list of insolvency-related material popping up on the Web

Differences between US and Canadian insolvency statutes

In the United States, people filing for bankruptcy have many “chapters” from which to choose. Similarly, Canada has one chief insolvency law, the Bankruptcy and Insolvency Act, or BIA, and several supporting pieces of legislation. In perusing a personal bankruptcy blog, the potential filer can find the information he or she seeks.

In the United States, Chapter 11 bankruptcy is the most complex because it applies to large businesses and usually involves gigantic sums of money. In Canada, the equivalent is the Division I proposal. In such a proposal, the debtor’s business can keep assets necessary for its role so that it can generate streams of income from other places to repay its debts. Management also stays in control of the company and business operations.

What are the Choices in Canada?

The BIA sets out the ground rules, and several smaller pieces of legislation fill in the details. Although we Canadians don’t call them various chapters, our legislation is like that of the U.S. Here are the options for filing bankruptcy in Canada:

Personal Bankruptcy – Summary Administration (streamlined) or Ordinary
Consumer Proposal
Division I Proposal

Personal bankruptcy in Canada is most similar to Chapter 7 in the U.S. By filing bankruptcy, the debtor seeks to deal with his or her entire debt load at once. The debtor does not believe that he or she has the means to attempt a restructuring. There are certain assets that are exempt for any one of a number of reasons, so anyone filing bankruptcy should consult a Trustee to find out more.

If a debtor decides to file a consumer proposal (because his or her debt load is $250,000 or less, not including any mortgages against the principal residence) or a Division I Proposal (for unsecured debts $250,000 or greater) instead, he or she is seeking a restructuring of debt so for repayment over a five years or less. Many times, debtors can negotiate with their creditors for part of the amount owed and work out deals on monthly payments, rates of interest, and other such considerations. A proposal is most similar to Chapter 13 in the U.S. and used by people who wish to AVOID bankruptcy.

Basically, the business operates as usual while making an offer to its creditors of payments over time, totalling an amount greater than the creditors would receive if everything was sold off in liquidation in bankruptcy. The largest businesses might even have several layers of debt that would need restructuring as part of a Division I proposal, and each layer might have different guidelines and restrictions based on the proposal.

For companies with greater than $5 million in debt, they could also make use of a different Federal restructuring statute called the Companies’ Creditors Arrangement Act (CCAA). Both the Proposal under the BIA and restructuring under the CCAA are for large complex corporate reorganizations.

Is a Lawyer Required?

Unlike citizens of the United States, Canadians don’t need a lawyer to file for bankruptcy. A Licensed Insolvency Trustee acts as the “referee” between debtor and creditors. In this way, people file and handle bankruptcy proceedings on their own in Canada. If the debtor has various complex issues or is a defendant in litigation where the plaintiff wishes to continue the litigation perhaps to attempt to prove that their claim is one not released by the person’s discharge from bankruptcy, then they may very well need a lawyer for those issues.

What to do if you have too much debt and want to read a personal bankruptcy blog?

To find out more, check out our Brandon’s Blog entries for the topic of personal bankruptcy blog. If you’re dealing with serious financial issues, contact a trustee, who is the Canadian bankruptcy expert. For the reasons already given, you should do this whether or not you’re contemplating bankruptcy. The reason is very simple: the licensed insolvency trustee will assess your situation, offer you all of your available options and will do this for you for free! You can’t find a better deal anywhere.

We’re not only bankruptcy experts; we’re experts in dealing with debt. Contact Ira Smith Trustee & Receiver Inc. today for a free consultation and you will be well on your way to regaining your former quality of life Starting Over, Starting Now.

THIS VLOG WAS INSPIRED IN PART BY OUR eBOOK – PERSONAL BANKRUPTCY CANADA: Not because you are a dummy, because you need to get your life back on track

Tags alternatives to bankruptcy, Bankruptcy and Insolvency Act, BIA, blog, brandon’s blog, CCAA, chapter 11, Chapter 13, Chapter 7, Companies’ Creditors Arrangement Act, Consumer Proposal, Corporate Bankruptcy, corporate restructuring, credit counselling, Division I Proposal, personal bankruptcy, personal bankruptcy blog, restructuring

Brandon Blog Post

#VIDEO – HOW MUCH DO YOU HAVE TO OWE TO FILE BANKRUPTCY?#

Post author By Ira Smith
Post date June 29, 2016

HOW MUCH DO YOU HAVE TO OWE TO FILE BANKRUPTCY –

NOT MUCH!

We are always asked, how much do you have to owe to file bankruptcy? The real question is, here are my assets and my debts, what are my options? In Canada, the Bankruptcy and Insolvency Act (Canada) (“BIA”) states that you must owe at least $1,000 of unsecured debt to file for bankruptcy. The same holds true if someone owes you money. They must owe you at least $1,000 on an unsecured basis to apply to the Court to make an Order judging a person or company into bankruptcy. As you can see, the threshold is not very high.

HOW MUCH DO YOU HAVE TO OWE TO FILE BANKRUPTCY –

ARE YOU INSOLVENT?

Facing serious financial difficulties is devastating, especially if you believe that personal bankruptcy is your only option. In fact many people mistakenly believe that dire financial problems automatically mean personal bankruptcy. If you are having problems meeting your financial obligations or have stopped meeting those financial obligations as they come due you are actually insolvent, not bankrupt. Insolvent is a financial condition; bankruptcy is a legal state.

Bаnkruрtсу is a legal рrосеѕѕ under the BIA that helps you to resolve уоur debts if they have become unmanageable. If you have relatively few assets and low іnсоmе and dесіdе to file for bаnkruрtсу, you will probably fіlе under the shortened Summary Administration part of the BIA. If you have realizable assets that will produce a value greater than $10,000, then your bankruptcy would be administered under the general administration provisions. Don’t worry about these distinctions now. For now, just know that the streamlined summary administration rules is a simpler process, and the Superintendent of Bankruptcy sets the cost of the bankruptcy administration.

HOW MUCH DO YOU HAVE TO OWE TO FILE BANKRUPTCY –

THE BANKRUPTCY PROCESS

In either case, you will turn over to your Licensed Insolvency Trustee (“LIT”) all of уоur рrореrtу that is not exempt (protected) by law. The LIT will sell your property and the proceeds used to рау for the bankruptcy administration and then to distribute to уоur сrеdіtоrѕ.

If you have very little property, all of it might be рrоtесtеd so that you will not lose it. How much уоur сrеdіtоrѕ will get in this process dереndѕ on how much уоur unрrоtесtеd property sells fоr and whether you must pay “surplus income” to your LIT.

The last step of your bankruptcy process, will be to get your discharge from your debts, meaning that you will not have to рау them all (with certain exceptions).

HOW MUCH DO YOU HAVE TO OWE TO FILE BANKRUPTCY –

SEE A TRUSTEE EVEN IF YOU DO NOT WANT TO GO BANKRUPT!

People think that they should only see a LIT if they need to file for bankruptcy. Every LIT will give you a free 1 hour consultation, to go over your situation and offer you your available options. The topics the LIT will discuss with you are:

As you can see, bankruptcy is only one of many topics discussed, in determining what your options are, allowing you to choose the one that makes the most sense to you. No other professional can discuss this full range of topics with you, and especially not for free!

WHAT SHOULD YOU DO IF YOU OR YOUR COMPANY HAS TOO MUCH DEBT?

If you’re dealing with serious financial issues, contact a trustee, who is the Canadian bankruptcy expert. For the reasons already given, you should do this whether or not you’re contemplating bankruptcy. The reason is very simple: the licensed insolvency trustee will assess your situation, offer you all of your available options and will do this for you for free! You can’t find a better deal anywhere.

THIS VLOG WAS INSPIRED IN PART BY OUR eBOOK – PERSONAL BANKRUPTCY CANADA: Not because you are a dummy, because you need to get your life back on track

Tags Bankruptcy, bankruptcy alternatives, Bankruptcy and Insolvency Act, bankruptcy process, BIA, Consumer Proposal, credit counselling, credit rating, debt conslidation, debts, file bankruptcy, how much do you have to owe to file bankruptcy, insolvent, Ira Smith Trustee, licensed insolvency trustee, personal bankruptcy, rebuilding credit, trustee

Brandon Blog Post

#VIDEO – BANKRUPTCY INFORMATION ONLINE: WHAT EVERY CANADIAN OUGHT TO KNOW#

Post author By Ira Smith
Post date May 25, 2016

[monkeytools msnip=”http://monkeyplayr.com/playr.php?u=5173&p=20586″]

Is there bankruptcy information online?

There is a large amount of bankruptcy information online. Just go to the website of any Licensed Insolvency Trustee or bankruptcy lawyer. There is information about:

Canadian bankruptcy
the Canadian Bankruptcy Act (BIA)
general insolvency information

The Ira Smith Trustee website

On our website, you will find bankruptcy information online such as:

personal insolvency information about bankruptcy alternatives and bankruptcy
information on corporate insolvency and restructuring and turnarounds
case study information for our high-profile cases
our standard personal bankruptcy intake form called our Debt Relief Worksheet
other required forms
our list of information in the form of bankruptcy faqs
information about our eBook: PERSONAL BANKRUPTCY CANADA: Not Because You Are A Dummy, Because You Need To Get Your Life Back On Track
our video the 12 THINGS A LICENSED INSOLVENCY TRUSTEE MAY NOT TELL YOU
our blog we publish every Tuesday and our vlog video we publish every Thursday

The other source for information online

You can also find relevant bankruptcy information online at the Superintendent of Bankruptcy Canada website.

To take action you have to take it offline

Once you have gotten the online information, to take action, you need to take it offline. It is not possible in Canada to file online yourself.

To file either a consumer proposal to make debt settlement or bankruptcy, you need to select a Licensed Insolvency Trustee. A Licensed Insolvency Trustee administers the insolvency process in Canada.

The 10 Step Program of the Canadian Insolvency System

Meet with a trustee to talk about your personal situation and your options.
Work with the trustee to complete the required forms.
The trustee filing your consumer proposal or bankruptcy and notifying your creditors.
You attend a meeting of creditors if required.
You attend two counselling sessions.
Subject to your provincial exemptions, the trustee sells your assets; you may also have to make surplus income payments to the trustee.
In certain circumstances, you may have to attend an examination by an officer at the OSB.
The trustee prepares a report to the OSB describing your actions during the bankruptcy.
You attend the discharge hearing if required.
Your discharge and then the trustee completes the administration.

This is why to take action in the Canadian insolvency system you have to take it offline

How To Take Action To Achieve Debt Settlement

If you’re in deep financial difficulties and are looking for a way out, there is help for you. You need help from experts in debt – professional trustees.

We are:

regulated by the Canadian government, as are our fees;
licensed and have undergone a background check by the RCMP;
subject to a stringent code of ethics; and
required to maintain our competence by completing ongoing mandatory professional development each year.

Are you an individual or company who feels your situation is hopeless? Ira Smith Trustee & Receiver Inc. can prepare and put in place the plan MADE JUST FOR YOU. The plan will free you from the burden of your financial challenges. With our help, you will go on to live a productive, stress-free, financially sound life.

Contact Ira Smith Trustee & Receiver Inc. today. Starting Over, Starting Now you can free yourself from debt.

THIS VLOG WAS INSPIRED IN PART BY OUR eBOOK – PERSONAL BANKRUPTCY CANADA: Not because you are a dummy, because you need to get your life back on track

bankruptcy information online

Tags assignment in bankruptcy, Bankruptcy, bankruptcy alternaties, bankruptcy faqs, bankruptcy forms, bankruptcy information online, BIA, canadian bankruptcy act, Consumer Proposal, corporate insolvency, Ira Smith Trustee, personal bankruptcy canada, PERSONAL BANKRUPTCY CANADA: Not Because You Are A Dummy, personal insolvency, restructuring and turnaround, Superintendent of Bankruptcy

Brandon Blog Post

#VIDEO-ALTERNATIVES TO BANKRUPTCY: DO NOT BE EMBARRASSED TO HAVE THE “B” CHAT#

Post author By Ira Smith
Post date May 11, 2016

Introduction of the alternatives to bankruptcy

There are alternatives to bankruptcy. Say the word bankruptcy and people immediately recoil. I don’t know if there is more stigma attached to another word in the English language. In reality bankruptcy is not something to be ashamed of. It should not be avoided at all costs and it’s not a deep dark hole; it can be the light at the end of the tunnel. As with other alternatives to bankruptcy, it is an option. Let’s explore why avoiding bankruptcy can do more harm than good.

Many реорlе аѕѕumе thеrе’ѕ only оnе tуре of bankruptcy. The one that еlіmіnаtеѕ all уоur debts. Thаt’ѕ a BIG rеаѕоn реорlе ѕау things like, “I wоuld never dесlаrе bаnkruрtсу! It just dоеѕn’t seem to be the responsible thing to do. Right?”

What mоѕt реорlе don’t know іѕ that there are TWO tуреѕ of BIA proceedings for іndіvіduаlѕ. One is bankruptcy and the other is an alternative to bankruptcy. The alternative is a (consumer) proposal. The reason you would pick the alternative is to AVOID bankruptcy.

Two tуреѕ of BIA proceedings

Thеѕе two types of BIA proceedings are іntеndеd to асhіеvе very dіffеrеnt goals. Bеfоrе taking асtіоn it is іmроrtаnt to undеrѕtаnd what уоu want to achieve. What you are trying to achieve will determine whісh tуре of BIA proceeding іѕ right fоr you.

Here is a quick ѕummаrу of еасh type of BIA proceeding. We also show how еасh one саn help уоu асhіеvе specific gоаlѕ in your fіnаnсіаl life.

What is bankruptcy?

Bankruptcy is most of the time misunderstood. According to the Office of the Superintendent of Bankruptcy Canada:

“Bankruptcy is a legal process designed to relieve honest but unfortunate debtors of their debts. At the end of the process, the bankrupt is released from the obligation to repay the debts they had when the bankruptcy was filed (with some exceptions)”.

Bankruptcy used to be the mоѕt common type of BIA proceeding fоr consumers. Its lіquіdаtіоn and discharge fеаturеs are dеѕіgnеd to end debts and give уоu a frеѕh ѕtаrt. In the United States it is referred to as “Chapter 7 proceedings”.

(Consumer) Proposal: One of the best alternatives to bankruptcy

The proposal provisions used by companies is “restructuring” or “reorganization”. Individuals with large debts can also use the restructuring provisions. Yet, there was no similar provisions available to small individual debtors in the BIA.

Parliament wished to find a way to provide for people with smaller debts to be able to restructure. A Parliamentary committee consulted with the stakeholders in the Canadian insolvency world. As a result, the consumer proposal legislation came into force in the 1990’s. Now, the consumer proposal provisions are used more than the consumer bankruptcy provisions. Canadians are now able to AVOID bankruptcy while still obtaining the help and counseling of a LIT.

The main use of the (consumer) proposal provisions of the BIA is to:

allow you as a debtor to keep your assets, if you can afford to in your budget;
AVOID bankruptcy, and provide a better alternative to your creditors than a bankruptcy would. You can relieve yourself of your debts, for an amount less than the total face value of all your debts;
If the рауmеnt plan іѕ ѕtruсturеd well, make affordable monthly payments; and
allow for the affordable monthly payments to cut ALL debts.

To meet all your debts in full but уоu can’t afford to ассоmрlіѕh that gоаl, this mау be just the ѕесrеt уоu need to know! In the United States it is called “Chapter 13 proceedings”.

Why avoiding bankruptcy can do more harm than good

There are alternatives to bankruptcy which merit review. But bankruptcy can often be a good thing. A recent report by the Federal Reserve Bank of New York states:

People who filed bankruptcy had access to more new lines of credit. Those who limped along in a poor financial state did not;
this puts to rest the misconception that filing bankruptcy closes the door to new credit;
those who didn’t file bankruptcy are just insolvent;
individuals who go bankrupt get a sharp boost in their credit score after bankruptcy;
the recovery in credit score is much lower for individuals who do not go bankrupt; and
insolvent individuals who do not go bankrupt exhibit more financial stress.

Where to go for information on alternatives to bankruptcy

Are you insolvent and looking for solutions? The Ira Smith Team is here to offer alternatives to bankruptcy and bankruptcy. We offer the help in Vaughan and throughout the GTA.

Our motto is Starting Over, Starting Now! Ira Smith Trustee & Receiver Inc. can help you overcome your financial difficulties. Contact us today.

THIS VLOG WAS INSPIRED IN PART BY OUR eBOOK – PERSONAL BANKRUPTCY CANADA: Not because you are a dummy, because you need to get your life back on track

Tags alternatives to bankruptcy, avoid bankruptcy, avoiding bankruptcy, Bankruptcy, BIA, Chapter 13, Chapter 7, Consumer Proposal, credit score, Ira Smith Trustee, licensed insolvency trustee, Lines of Credit, LIT, proposal, Superintendent of Bankruptcy

Brandon Blog Post

STUDENT LOANS DEBT: WILL BANKRUPTCY ELIMINATE IT IF YOU ARE NOT THE STUDENT?

Post author By Ira Smith
Post date April 25, 2016

An interesting American case about student loans debt

Student loans debt is nearly impossible to get rid of in bankruptcy. A case winding its way through the US court system has piqued our intellectual interest. A father, who is a discharged bankrupt, is taking the lender who HE borrowed funds from for his child’s education to Court. The lender is continuing to pursue collection efforts against the father on the basis that the provisions of the Bankruptcy Reform Act of 1978, as amended, codified in Title 11 of the United States Code and commonly called the “Bankruptcy Code” (“Code”), does not release the father from what is in reality student loans debt. The father is taking the lender to Court for a ruling that by virtue of his discharge, he is released from that debt like all his other debts. It has raised the question whether the same student loans debt rules should apply in that case.

The Canadian perspective

We are not qualified to express any opinion on the US legal case before the US Court, but we are qualified to discuss the issue from the Canadian perspective. We started thinking whether this same situation could arise in Canada for student loans.

Last week we discussed student debt bankruptcy from the perspective of the student. Previously, we have written blogs and created a vlog about student loan debt, including:

So this week, we’re discussing student loan debt and bankruptcy from a very different and interesting angle. Could a Canadian lender take the position against a Canadian parent borrower who on the loan application described the purpose of the loans for the funding of his or her child’s Canadian post-secondary education, that the loans qualify as student loans under the applicable Canadian statutes, including, the Bankruptcy and Insolvency Act (Canada) (BIA). Stated otherwise, are such loans the same as student loans under Canadian law and can bankruptcy cut such loans if you’re not the student?

Are student loans necessary?

Many young Canadians need student loans to get a post-secondary education. To qualify as Canadian student loan debt, the loans must be issued under a specific Canadian student loan statute: the (i) Canada Student Loans Act; (ii) Canada Student Financial Assistance Act; (iii) Apprentice Loans Act; or (iv) any enactment of a province that provides for loans or guarantees of loans to students.

All students need financial help to be full-time university students. The only real places that such assistance can come from is either the parents, if they are willing and able to do so, student loans, or both. Many Canadian parents pay a hefty part of students’ tuition fees, even if it means sacrificing their financial stability, to help their children avoid a post-graduation life burdened by tens of thousands of dollars of student debt. Others may wish to, but they cannot afford to do so.

So are student loans and the resultant debt necessary? In most cases, yes.

Can a parent co-sign for or guarantee their child’s student loans?

The short answer is no. As I have already stated, to qualify as a student loan, the loan has to be made under the provisions of one of the Federal loan statutes mentioned above, or any such similar Provincial legislation. Nowhere in those student loans statutes is there a place for either a guarantor or cosigner. In fact, the Federal statutes all have similar language stating that upon the death of the borrower, the Federal government will repay the outstanding part of the loan. In addition to there not being any sections that allow for a guarantor or cosigner, the specific section dealing with the death of the borrower does not limit the government’s guarantee by using words like “….and if the lender is unable to collect in full from any guarantor or cosigner”. The reason is simple, student loans cannot be guaranteed or otherwise borrowed by anyone other than the student.

Will bankruptcy eliminate student loans debt?

Student loans are nearly impossible to get rid of in bankruptcy. Section 178(1) of the BIA states:

“(g) any debt or obligation in respect of a loan made under the Canada Student Loans Act, the Canada Student Financial Assistance Act or any enactment of a province that provides for loans or guarantees of loans to students where the date of bankruptcy of the bankrupt occurred:

(i) before the date on which the bankrupt ceased to be a full- or part-time student, as the case may be, under the applicable Act or enactment, or

(ii) within seven years after the date on which the bankrupt ceased to be a full- or part-time student;

(g.1) any debt or obligation in respect of a loan made under the Apprentice Loans Act where the date of bankruptcy of the bankrupt occurred

(i) before the date on which the bankrupt ceased, under that Act, to be an eligible apprentice within the meaning of that Act, or

(ii) within seven years after the date on which the bankrupt ceased to be an eligible apprentice;”

So if you’re a student, bankruptcy will only end student loans if you’ve ceased to be a full or part-time student for more than seven years and either declare personal bankruptcy or make a debt proposal to your creditors, most likely through a consumer proposal. The only other option is to attempt to seek from the Court relief because of undue hardship, but this is very difficult, if not impossible.

What is required to meet the burden of undue hardship?

If the Court is satisfied that you meet the two-pronged test, you’ll be discharged from your student loans obligations in bankruptcy only if the :

acted in good faith in connection with your obligation to repay your student loan debt; and (emphasis added)
have experienced, and will continue to experience, financial difficulty that will prevent you from repaying this debt

It’s then up to the bankruptcy court to decide whether they forgive your loans, either in full or in part. One of the difficulties in trying to prove undue hardship is that there is no clear definition for what makes up hardship; each bankruptcy court across Canada may use a slightly different interpretation. The only thing that’s clear is that you must prove that having to continue to pay the student loans after bankruptcy would be a financial hardship for you. If you try this route, the Court will look at ALL of your income and expenses.

The Court may decide you are not trying hard enough, or, may look at things like your small car you use to get to work, which you purchased used (instead of taking public transit), your cell phone and your internet expenses, and decide that these are luxuries you do not need. If you are a smoker, the Court may very well decide that if you were not addicted to tobacco, you could start to repay some part of your student loans.

If you think my examples are picayune or silly, just look up the case of Fournier (Re), 2009 CanLII 31606 (ON SC).

Will bankruptcy eliminate student loan debt if you are not the student?

I don’t know what the eventual disposition of the US case which I mentioned at the beginning of this blog will be, but based on all the above, in my view in the Canadian context, a parent, relative or friend cannot guarantee, cosign or borrow for a loan that qualifies as a Canadian student loan. If you borrow to fund your child’s education, then you are borrowing under an ordinary commercial transaction and the applicable student loan sections of the BIA do not apply.

So if you have borrowed for this purpose, only the normal provisions of the BIA apply, and you will get a discharge from that and your other debts upon your discharge from bankruptcy. However, if you pledged any of your assets in support of such borrowings, such as your home, the lender does have the right to enforce its security against such assets if you cannot repay, whether you are bankrupt or not.

What should you do if you have too much debt?

If you’re drowning because of your finances, we know we can help you. Although many people believe that bankruptcy is the only way of out serious debt, that’s not always the case. Ira Smith Trustee & Receiver Inc.can discuss other bankruptcy alternatives with you which include credit counselling, debt consolidation and consumer proposals.

If we get to see you early enough, at the first sign of trouble, you can use and carry out one of the bankruptcy alternatives, to free you from the burden of your financial challenges to go on to be a productive, contributing member of society and not be plagued by debt problems.

Bankruptcy law is very complicated and requires the expertise of a professional licensed insolvency trustee. Ira Smith Trustee & Receiver Inc. is here to help. With a cumulative 50+ years of experience dealing with diverse issues and complex files, we can get you back on your feet Starting Over, Starting Now. We can help. Call us today.

People consider us bankruptcy experts because we wrote the eBook which is sold on Amazon.ca, explaining the Canadian personal insolvency and bankruptcy system, specifically directed to the person stressed out with too much debt.

Brandon Blog Post

#VIDEO – SURPLUS INCOME LIMITS FOR 2015, 2016 & BEYOND: YOU WILL REALLY FEEL IT IN YOUR BANKRUPTCY #

Post author By Ira Smith
Post date April 13, 2016

Our inspiration for this vlog

This vlog was inspired by our new eBook: PERSONAL BANKRUPTCY CANADA – Not Because You Are A Dummy, Because You Need To Get Your Life Back On Track, which is sold on Amazon.com. The eBook explains the Canadian personal insolvency and bankruptcy system, specifically directed to the person stressed out with too much debt.

The most asked question is about surplus income limits

The question we are always asked is: What are the surplus income limits for 2015 and 2016 if I am in bankruptcy? I don’t have any cash left over from each paycheque, so, how can you say that I have surplus income?

What are the surplus income limits for 2015, 2016 and beyond?

Surplus income is the amount of a debtor’s total income that exceeds what is necessary to maintain a reasonable standard of living according to the standards set by the Office of the Superintendent of Bankruptcy (remember, the actual standard is right at the poverty line so don’t get happy when you see words like “reasonable standard of living”). The bankrupt must make payments out of this surplus income to the Licensed Insolvency Trustee for distribution among the creditors.

It is part of the goals of the Canadian insolvency system that tries to balance the elimination of debt with the rights of creditors to be paid. The surplus income limits for 2015, 2016 and beyond, are set to allow Canadians to maintain what the Superintendent of Bankruptcy calls a reasonable standard of living during the bankruptcy process; the government has set thresholds or limits on net earnings (gross earnings after taxes and deductions) during the bankruptcy process. The Office of the Superintendent of Bankruptcy sets the threshold limits each year and these limits are indexed to inflation.

The threshold is set the same across Canada, regardless of what province or city you live in. So, someone living in the Greater Toronto Area, whose costs for shelter and probably transportation are higher than other parts of the country, will find that the threshold for them is essentially at the poverty line.

An example of how to apply the surplus income limits for 2015 and 2016

Here is an example of how the surplus income amount is calculated. Let’s assume we have a family of 4: a husband, wife and two young children in school. The husband earns (net of income tax) the annual amount of $46,000 and the wife earns (net of income tax) the annual amount of $18,000. To keep it simple, let’s assume that their monthly take-home pay can is their annual amount divided by 12 or a monthly income of $3,833.33 for the husband and $1,500 for the wife. Let’s assume that only the husband has to go bankrupt and not the wife.

The surplus income calculation for 2015 was:

(($3,833.33 + $1,500.00) – $3,831.00) X ($3,833.33/($3,833.33+$1,500)) = $539.90

This means the bankrupt husband will have to pay $539.90 to the Licensed Insolvency Trustee for a period of 21 months if he has never been bankrupt before, or for 36 months, if he has been bankrupt before, according to the Bankruptcy and Insolvency Act (Canada).

The surplus income calculation for 2016 is:

(($3,833.33 + $1,500.00) – $3,882.00) X ($3,833.33/($3,833.33+$1,500)) = $521.57

This means the bankrupt husband will have to pay $521.57 to the Licensed Insolvency Trustee for a period of 21 months if he has never been bankrupt before, or for 36 months, if he has been bankrupt before, according to the Bankruptcy and Insolvency Act (Canada) (BIA).

You cannot deduct your normal monthly living expenses against the monthly income in order to calculate the surplus income limits for 2015 or any other year. However, if the bankrupt has any of the following types of expenses, they can be deducted from income in calculating the surplus income amount.

Child Support
Spousal Support
Child Care Expense
Expenses associated with medical condition
Court imposed fines or penalties that are in process of being paid
Expenses permitted by Income Tax Act that are a condition of employment
Any other debt where the stay of proceeding has been lifted

The surplus income limits for 2015 and 2016, or put another way, the amount the Superintendent of Bankruptcy believes a family, where there is one bankrupt person in a family of four, should have a take-home monthly income of $3,882 or annual family take home pay of $46,584, before the bankrupt person has to start contributing 50% of his or her income for the benefit of the bankrupt’s creditors. That is why we say the Federal government’s idea of a “reasonable standard of living” is really at the poverty line.

What to do if you have too much debt

If you’re in “survival mode” when it comes to your finances, we’ve got solutions for you. Although many people believe that bankruptcy is the only way out of serious debt, that’s not always the case. Ira Smith Trustee & Receiver Inc. can discuss other bankruptcy alternatives with you which include credit counselling, debt consolidation and consumer proposals.

If we get to see you early enough, at the first sign of trouble, you can utilize and implement one of the bankruptcy alternatives, to free you from the burden of your company’s financial challenges to go on to be a productive, profitable employer allowing management to focus on business growth and not be plagued by debt problems. Come in for a no obligation, no fee consultation and let us help you get back on track to living a debt free life Starting Over, Starting Now. Give us a call today.

Tags Bankruptcy, bankruptcy alternatives, Bankruptcy and Insolvency Act, bankruptcy process, BIA, Consumer Proposal, consumer proposals, eBook, Ira Smith Trustee, licensed insolvency trustee, starting over starting now, surplus income calculation for 2016, surplus income limits for 2015