|
|
•
•
|
|
|
|
§ 523. Exceptions
to discharge
|
|
|
|
|
|
|
|
|
(1)
for a tax or a customs duty—
(A) of the kind and for the periods specified in
section
507(a)(2)(3)
or
507(a)(8) of this title, whether or not a
claim for such tax was filed or allowed;
(B) with respect to which a return,
or equivalent report or notice,
if required—
(i) was not filed or given;
or
(ii) was filed or given
after the date on which such return,
report, or notice
was last due, under applicable law or under any extension,
and after two years before the date of the filing of the
petition; or
(C)
with respect to which the
debtor made a fraudulent return or willfully attempted
in any manner to evade or defeat such tax;
|
|
|
|
|
|
|
|
(2)
for money, property, services, or an extension, renewal,
or refinancing of credit, to the extent obtained by—
(A)
false pretenses, a false representation, or actual fraud,
other than a statement respecting the
debtor's or an
insider's financial condition;
(B)
use of a statement in writing—
(i)
that is materially false;
(ii)
respecting the
debtor's or an
insider's financial condition;
(iii)
on which the
creditor to whom the
debtor is liable for such money, property, services,
or credit reasonably relied; and
(iv)
that the
debtor caused to be made or published with intent to
deceive; or
(C)(i)
for purposes of subparagraph
(A)—
of this paragraph,
(I)
consumer debts owed to a single
creditor and aggregating more than
$650
$1,000 [$1,225 effective April
1, 2004] for
"luxury goods
or services"
incurred by an individual
debtor on or within 60
90 days before
the
order for relief under this title,
or are presumed to
be nondischargeable; and
(II) cash advances
aggregating more than $925
$1,000 [$1,225 effective April
1, 2004] that are extensions of consumer
credit under an open end credit plan obtained by an individual
debtor on or within 60
70 days before
the
order for relief under this title, are presumed to be
nondischargeable; and
(ii)
for purposes of this subparagraph—
(I) the terms "consumer",
"credit", and "open end credit plan" have the same meanings
as in section 103 of the Truth in Lending Act;
and
(II) the term
"luxury goods or services" does
not include goods or services reasonably
acquired
necessary for the support or
maintenance of the
debtor or a
dependent
of the
debtor;.
an extension of
consumer credit under an open end credit plan is to be defined
for purposes of this subparagraph as it is defined in the
Consumer Credit Protection Act;
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(3)
neither listed nor scheduled under section
521(a)(1)
of this title, with the name, if known to the
debtor, of the
creditor to whom such
debt is owed, in time to permit—
(A)
if such
debt is not of a kind specified in paragraph
(2),
(4),
or (6)
of this subsection, timely filing of a proof of
claim, unless such
creditor had notice or actual knowledge of the case
in time for such timely filing; or
(B)
if such
debt is of a kind specified in paragraph
(2),
(4),
or (6)
of this subsection, timely filing of a proof of
claim and timely request for a determination of dischargeability
of such
debt under one of such paragraphs, unless such
creditor had notice or actual knowledge of the case
in time for such timely filing and request;
|
|
|
|
|
|
|
|
(4)
for fraud or defalcation while acting in a fiduciary capacity,
embezzlement, or larceny;
|
|
|
|
(5)
for a
domestic support obligation;
to a spouse, former spouse,
or child of the
debtor, for alimony to,
maintenance for, or support of such spouse or
child, in connection with a separation agreement, divorce
decree or other order of a court of record, determination
made in accordance with State or territorial law by a governmental
unit, or property settlement agreement, but not to the extent
that—
(A) such debt is assigned
to another entity, voluntarily, by operation of law, or
otherwise (other than debts assigned pursuant to section
408(a)(3) of the Social Security Act, or any such debt which
has been assigned to the Federal Government or to a State
or any political subdivision of such State); or
(B) such debt includes
a liability designated as alimony, maintenance, or support,
unless such liability is actually in the nature of alimony,
maintenance, or support;
|
|
|
|
(6)
for willful and malicious injury by the
debtor to another
entity or to the property of another
entity;
|
|
|
|
(7)
to the extent such
debt is for a fine, penalty, or forfeiture payable to
and for the benefit of a
governmental unit, and is not compensation for actual
pecuniary loss, other than a tax penalty—
(A)
relating to a tax of a kind not specified in paragraph
(1) of
this subsection; or
(B)
imposed with respect to a transaction or event that occurred
before three years before the date of the filing of the
petition;
|
|
|
|
|
|
|
|
(8)
unless excepting such
debt from discharge under
this paragraph would impose an undue hardship on the
debtor and the
debtor's
dependents, for—
(A)(i) an educational
benefit overpayment or loan made, insured or guaranteed
by a
governmental unit, or made under any program funded
in whole or in part by a
governmental unit or nonprofit institution, or
(ii)
for an obligation
to repay funds received as an educational benefit, scholarship
or stipend; or
(B) any other educational
loan that is a qualified education loan, as defined in section
221(d)(1) of the Internal
Revenue Code of 1986, incurred by a
debtor who is an individual;
, unless excepting such debt
from discharge under this paragraph will impose an undue
hardship on the debtor and the debtor's dependents
|
|
|
|
|
|
|
|
(9) for death or personal injury caused by the
debtor's operation of a motor vehicle,
vessel, or aircraft
if such operation was unlawful because the
debtor was intoxicated from using alcohol, a drug, or
another substance;
|
|
|
|
|
|
|
|
(10)
that was or could have been listed or scheduled by the
debtor in a prior case concerning the
debtor under this title or under the Bankruptcy Act
in which the
debtor waived discharge, or was denied a discharge under
section
727(a)(2),
(3),
(4),
(5),
(6), or
(7) of this title, or under section 14c(1), (2), (3),
(4), (6), or (7) of such Act;
|
|
|
|
|
|
|
|
(11)
provided in any final judgment, unreviewable order, or consent
order or decree entered in any court of the United States
or of any
State, issued by a
Federal depository institutions regulatory agency, or
contained in any settlement agreement entered into by the
debtor, arising from any act of fraud or defalcavtion
while acting in a fiduciary capacity committed with respect
to any depository institution or
insured credit union;
|
|
|
|
|
|
|
|
(13)
for any payment of an order of restitution issued under
title
18, United States Code;
|
|
|
|
(14)
incurred to pay a tax to the United States that would be
nondischargeable pursuant to paragraph
(1);
|
|
|
|
(14A)
incurred to pay a tax to a
governmental unit, other
than the United States, that would be nondischargeable under
paragraph
(1);
|
|
|
|
(14B)
incurred to pay fines or penalties
imposed under Federal election law;
|
|
|
|
(15)
to a spouse, former spouse, or child
of the
debtor
and
not of the kind described in paragraph
(5) that
is incurred by the
debtor in the course of a divorce or separation or in
connection with a separation agreement, divorce decree or
other order of a court of record,
or
a determination made in accordance with
State or territorial law by a
governmental unit;
unless—
(A) the debtor does not
have the ability to pay such debt from income or property
of the debtor not reasonably necessary to be expended for
the maintenance or support of the debtor or a dependent
of the debtor and, if the debtor is engaged in a business,
for the payment of expenditures necessary for the continuation,
preservation, and operation of such business; or
(B) discharging such
debt would result in a benefit to the
debtor
that outweighs the detrimental consequences to a spouse,
former spouse, or child of the debtor;
|
|
|
|
|
|
|
|
(16) for a fee or assessment that becomes due and
payable after the
order for relief to a membership association with respect
to the
debtor's interest in a
dwelling
unit that has condominium ownership,
or
in a share of a cooperative
housing
corporation, but only
if such fee or assessment is payable for a period during
which—
(A) the debtor physically
occupied a dwelling unit in the condominium or cooperative
project; or
(B) the debtor rented the
dwelling unit to a tenant and received payments from the
tenant for such period,
or a lot in a homeowners association,
for as long as the
debtor or the trustee has
a legal, equitable, or possessory ownership interest in
such unit, such
corporation,
or such lot,
but nothing in this paragraph shall except from discharge
the
debt of a
debtor for a membership association fee or assessment
for a period arising before entry of the
order for relief in a pending or subsequent bankruptcy
case;
|
|
|
|
|
|
|
|
(17) for a fee imposed on
a prisoner by any
court for the filing of a case, motion, complaint, or appeal,
or for other costs and expenses assessed with respect to
such filing, regardless of an assertion of poverty by the
debtor under subsections (b) or
(f)(2) of section 1915(b)
or (f)
of title
28 (or a similar non-Federal
law),
or the
debtor's status as a prisoner, as defined in section
1915(h) of title
28 (or a similar non-Federal law);
or
|
|
|
|
|
|
|
|
(18)
owed under State law to a State or municipality that is—
(A) in the nature of support,
and
(B) enforceable under part
D of title IV of the Social Security Act (42 U.S.C. 601
et seq.).
(18)
owed to a pension, profit-sharing, stock bonus, or other
plan established under section 401, 403, 408, 408A, 414,
457, or 501(c) of the Internal Revenue Code of 1986, under—
(A) a loan permitted
under section 408(b)(1) of the Employee Retirement Income
Security Act of 1974,
or subject to section 72(p) of the Internal Revenue Code
of 1986; or
(B) a loan from a thrift
savings plan permitted under subchapter III of chapter 84
of title 5,
that satisfies the requirements of section 8433(g)
of such title;
but nothing in this paragraph may
be construed to provide that any loan made under a governmental
plan under section 414(d), or a contract or account under
section 403(b), of the Internal Revenue Code of 1986 constitutes
a
claim
or a
debt under this title;
or
|
|
|
|
|
|
|
|
(19) that—
(A) is for—
(i) the violation of any of
the Federal securities laws (as that term is defined in
section 3(a)(47) of the Securities Exchange Act of 1934),
any of the
State securities laws, or any regulation or order issued
under such Federal or
State securities laws; or
(ii) common law fraud, deceit,
or manipulation in connection with the purchase or sale
of any security; and
(B) results, before, on, or
after the date on which the petition was filed,
from—
(i) any judgment, order, consent
order, or decree entered in any Federal or
State judicial or administrative proceeding;
(ii) any settlement agreement
entered into by the
debtor; or
(iii) any court or administrative
order for any damages, fine, penalty, citation, restitutionary
payment, disgorgement payment, attorney fee, cost, or other
payment owed by the
debtor.
|
|
|
|
|
|
|
|
|
|
|
|
|
|
For purposes of this subsection, the
term "return" means a return that satisfies the requirements
of applicable nonbankruptcy law (including applicable filing
requirements). Such term
includes a return prepared
pursuant to section
6020(a) of the Internal
Revenue Code of 1986, or similar
State
or local law, or a written stipulation to a judgment or
a final order entered by a nonbankruptcy tribunal, but does
not include a return made pursuant to section
6020(b) of the Internal
Revenue Code of 1986, or a similar
State
or local law.
|
|
|
|
|
|
|
|
(b)
Notwithstanding subsection
(a) of
this section, a
debt that was excepted from discharge under subsection
(a)(1),
(a)(3),
or (a)(8)
of this section, under section 17a(1), 17a(3), or 17a(5)
of the Bankruptcy Act, under section 439A of the Higher
Education Act of 1965, or under section 733(g) of the Public
Health Service Act in a prior case concerning the
debtor under this title, or under the Bankruptcy Act,
is dischargeable in a case under this title unless, by the
terms of subsection
(a) of
this section, such
debt is not dischargeable in the case under this title.
|
|
|
|
|
|
|
|
(c)(1) Except as provided in subsection
(a)(3)(B)
of this section, the
debtor shall be discharged from a
debt of a kind specified in paragraph
(2),
(4),
or
(6),
or (15)
of subsection
(a) of
this section, unless, on request of the
creditor to whom such
debt is owed, and
after notice and a hearing, the court determines such
debt to be excepted from discharge under paragraph
(2),
(4)
or
(6),
or (15),
as the case may be, of subsection
(a) of
this section.
(2)
Paragraph
(1) shall not apply in the case of a
Federal depository institutions regulatory agency seeking,
in its capacity as conservator, receiver, or liquidating
agent for an
insured depository institution, to recover a
debt described in subsection
(a)(2),
(a)(4),
(a)(6),
or (a)(11)
owed to such institution by an
institution-affiliated party unless the receiver, conservator,
or liquidating agent was appointed in time to reasonably
comply, or for a
Federal depository institutions regulatory agency acting
in its corporate capacity as a successor to such receiver,
conservator, or liquidating agent to reasonably comply,
with subsection
(a)(3)(B)
as a
creditor of such
institution-affiliated party with respect to such
debt.
|
|
|
|
|
|
|
|
(d)
If a
creditor requests a determination of dischargeability
of a
consumer debt under subsection
(a)(2)
of this section, and such
debt is discharged, the court shall grant judgment in
favor of the
debtor for the costs of, and a reasonable attorney's
fee for, the proceeding if the court finds that the position
of the
creditor was not substantially justified, except that
the court shall not award such costs and fees if special
circumstances would make the award unjust.
|
|
|
|
|
|
|
|
(Pub. L. 95-598, Nov. 6, 1978, 92 Stat. 2590;
Pub. L. 96-56, § 3, Aug. 14, 1979, 93 Stat. 387; Pub.
L. 97-35, title XXIII, § 2334(b), Aug. 13, 1981,
95 Stat. 863; Pub. L. 98-353, title III, § 307, 371,
454, July 10, 1984, 98 Stat. 353, 364, 375; Pub.
L. 99-554, title II, § 257(n), 281, 283(j), Oct. 27,
1986, 100 Stat. 3115-3117; Pub. L. 101-581, §
2(a), Nov. 15, 1990, 104 Stat. 2865; Pub. L.
101-647, title XXV, § 2522(a), title XXXI, § 3102(a),
title XXXVI, § 3621, Nov. 29, 1990, 104 Stat.
4865, 4916, 4964; Pub. L. 103-322, title XXXII, § 320934,
Sept. 13, 1994, 108 Stat. 2135; Pub. L.
103-394, title II, § 221, title III, § 304(e), (h)(3),
306, 309, title V, § 501(d)(13), Oct. 22, 1994,
108 Stat. 4129, 4133-4135, 4137, 4145; Pub. L. 104-134,
title I, § 101((a)) (title VIII, § 804(b)), Apr.
26, 1996, 110 Stat. 1321, 1321-74; renumbered title
I, Pub. L. 104-140, § 1(a), May 2, 1996, 110
Stat. 1327; Pub. L. 104-193, title III, § 374(a),
Aug. 22, 1996, 110 Stat. 2255; Feb. 12, 1998,
63 Fed. Reg. 7179; Pub. L. 105-244,
title IX, § 971(a), Oct. 7, 1998, 112 Stat. 1837;
Feb. 20, 2001, 66 Fed. Reg. 10910; Pub. L. 107-204, title VIII, § 803, July 30, 2002,
116 Stat. 801; Feb. 24, 2004, 69 Fed. Reg.
8482; Pub. L.
109-8, Title II, Subtitle B, §§
215,
220, Subtitle C, §
224(c), Title III, §§
301,
310,
314(a), Title IV, Subtitle A, §
412, Title VII, §
714, Title XII, §§
1209,
1235, Title XIV, §
1404(a), Title XV, §
1502(a)(2), April 20, 2005, 119 Stat. 54,
59, 64, 75, 84, 88, 107, 128, 194, 204, 215, 216;
Feb. 14, 2007, 72 Fed. Reg. 7082;
Feb. 25, 2010, 75 Fed. Reg. 8747; Pub. L.
111-327, § 2(a)(18), Dec. 22,
2010, 124 Stat. 3559; Feb. 21,
2013, 78 Fed. Reg. 12089.)
|
|
|
|
|
|
|
|
©2005-2013 - WEBER LAW FIRM, P.C.
- All Rights Reserved
Page Last Updated:
April 28, 2013
|
|
|