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Question: Under the federal exemptions and assuming a debtor does not own a home and the unused portion of the homestead exemption up to $10,825 be used to protect a tax refund up to that amount?
Response: Unfortunately, you cannot because New York State has opted out of the Federal Exemptions. You have to use New York State Exemptions to exempt the tax refund. Unfortunately, the maximum that you can exempt for cash, savings bond, and tax refunds is $5,000.00 for individual debtor and $10,000.00 for joint debtors. See New York Debtor & Creditor Law Section 283.
Well, I am still not aware of it. All my manuals (which supposed to be the best manuals for bankruptcy in the country) still indicate that New York is still an opt out State. I will check with the publishers tomorrow as to why I apparently have an outdated manual!!!
Getting back to your original question and assuming that you are infact right as to New York now not being an opt in State, yes, you can use the wild card exemption for tax refund, 11 U.S.C. Section 522(d)(5). One is for $1,150.00 plus (2) unused portion from Homestead $10.825.00.
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