All United States citizens can request a Social Security Number, as well as some noncitizens that work or attend school who are authorized by the Dept of Homeland Security. In some cases, even those with a valid nonwork reason may request one.
Bankruptcy Code Section 109 requires that, in order to be a debtor that can file for bankruptcy, a person must reside in or have a home, a place of business, or property in the United States. That is to say, the Code does not require a social security number, or documentation of citizenship or legal immigration status.[1] Form 121 of the Bankruptcy Petition, entitled “Statement About Your Social Security Number” includes an option for debtors who do not have a social security number and for debtors who do not have an Individual Taxpayer Identification Number.
When a Debtor appears at a Section 341(a) meeting of creditors, the U.S. Trustee will require proof of residency, as well as proof of identity, that meets certain standards. While the Code does not require a government-issued photo ID, the Trustee will require identification proofs, along with other usually necessary documentation in bankruptcies such as income documents, insurance documents, titles to property, and so forth. Even where an individual does not have a Social Security Number, having an Individual Tax Payer Identification Number (discussed further below) may make the bankruptcy filing proceed more efficiently.
While some states do not allow noncitizens to leverage state exemptions that protect assets in bankruptcy filings, The United States Bankruptcy Court, District of New Jersey does allow its residents to use the federal bankruptcy exemptions regardless of citizenship status.
It is also important to consider how and whether filing for bankruptcy may trigger criminal liability or affect your immigration status. Bankruptcy petitions require disclosure of all Social Security Numbers and/or Individual Tax Payer Identification Numbers you have ever used. This allows creditors the ability to make their claims against you under penalty of fraud charges. But if you work under a different Social Security Number than you file taxes under, or if your Social Security Number is “invented” or “borrowed”, then use of that Social Security Number is likely a crime. Not only are you possibly exposed to criminal liability, but also the debt you took on while using that false Number is likely to be dismissed due to fraud as well. Bankruptcy records are public records that the United States Department of Justice is obligated to investigate through the Office of the United States Trustee. We recommend discussing the possibility of bankruptcy with an immigration attorney to evaluate the possible risks that might affect your immigration status or pending application.
From a practical perspective, if you do not have a Social Security Number, the best way to proceed with a bankruptcy petition is to get an Individual Taxpayer Identification Number (ITIN).
Why you might have or need an ITIN:
Does the following apply to you?
- You do not have an SSN and are not eligible to obtain one, and
- You have a requirement to furnish a federal tax identification number or file a federal tax return, and
- You are in one of the following categories:
- Nonresident alien who is required to file a U.S. tax return
- U.S. resident alien who is (based on days present in the United States) filing a U.S. tax return
- Dependent or spouse of a U.S. citizen/resident alien
- Dependent or spouse of a nonresident alien visa holder
- Nonresident alien claiming a tax treaty benefit
- Nonresident alien student, professor or researcher filing a U.S. tax return or claiming an exception
If so, then you may already have an ITIN, or should apply for an ITIN.
You should be cautioned that ITINs can expire. For example: If your ITIN was not included on a U.S. federal tax return at least once for tax years 2020, 2021, and 2022, your ITIN will expire on December 31, 2023. If you ITIN is due to expire, make sure to renew your ITIN.
Overall, if you do not have a Social Security Number, you should likely consider acquiring an ITIN from the IRS to file your bankruptcy case.
If you do not have a Social Security Number, or are unable to procure an Individual Tax Payer Identification Number, but are considering bankruptcy, we encourage you to reach out and speak to qualified bankruptcy counsel. At Scura, we’re not just lawyers. We’re professional problem solvers ready to help you solve any and all problems you face with bankruptcy or personal injury in the state of New Jersey. We have experience representing bankruptcy clients who do not have a Social Security Number, and we are here to help you.
If you feel you might require legal counsel or support, please contact our team of lawyers for a free consultation.
[1] In re Merlo, 265 B.R. 502, 503 (Bankr. S.D. Fla. 2001) (“The Bankruptcy Code does not exclude debtors from bankruptcy protection simply because they have no social security number. Section 109 of the Bankruptcy Code does not require a social security number as a condition of being a debtor.”)
