Is pay for unused vacation time earned before six months considered income?

[phxtoatl]

Is pay for unused vacation time earned before six months income?
Greetings,

I plan to file pro se this week. I have a question about how to list my income. I am right under the median if I file this month (based on income from May 1 2010 to Oct 31 2010). However, I am expecting a check of about $2900 between filing and my 341 meeting from my previous employer for unused vacation hours. If I include that into income earned for the last six months I’m over the median and can’t file chapter 7. BUT, I read somewhere that it depends on when you earned the money not when you get paid for it. In this case I earned 57 hours of vacation during the last 6 months (valued at $1292). The rest of the value of the $2900 payout would be for vacation earned prior to May 1, so it should not count as earnings for the last 6 months, right? I’m thinking not. It may still put me over the median to add even the $1292 portion of my expected payout to my 6 months gross

BUT I ALSO have been paid for vacation hours I used during the last six months that should ALSO be considered to be earned prior to May 1. On May 1, I had unused vacation that I used and have been paid for during last 6 months; probably $2000 worth, if the concept I am imagining holds true, I shouldn't have to include that annual leave (vacation) either, right? I'm thinking not. If I can somehow not include the value of these payouts because I earned them prior to 6 months ago I will be under the median. In a nutshell, I earned 6 hours of vacation every two weeks for the last few years I worked there (I no longer do work there) and some of pay I received during the last 6 months and some of the pay I am expecting are for vacation hours I accrued prior to 6 months ago. If I am forced to include it, it would seem like I would be getting double hit by it.

So, can I somehow exclude part of my gross earnings if they were paid out for vacation I earned prior than 6 months earlier and part of my expected payout as earnings for the last 6 months for the same reason?

If I can, How do I list it?

I saw a court finding in New York where someone did something like that but I didn’t understand well enough.

Almost ready, want to file this week.

Thanks

[justbroke]

It may be and this will depend on your District. This is one of the hardest areas to really nail down as well, as it may even differ by Trustee. Suffice it to say, that if it was paid out in the month that is part of the look-back period, it is a part of your "current monthly income" (CMI).

The problem with manipulating your numbers is that most Trustees will see this quite easily (they actually use your prior income tax returns to gauge your "average annual income"). Since you want to file pro se, you'd then be in a battle with the Trustee and perhaps even the United States Trustee (UST).

Are you over or under the median income? I ask because if you are over-the-median, the likelihood of increased scrutiny of your "numbers" will mean that you need to be sure of what you're doing.

CMI doesn't go based on earnings, it goes based on income received (11 USC 101 reads income that the debtor receives from all sources). However, even if the Trustee /UST looks at it as receives, the Earned but Unused Vacation pay would be a "cash asset". If you can't exempt it, then it would go to the creditors.

Again, whether the Trustee will notice this or not, I can't tell you. I will say that you need to be honest and you may need to do some more research. Perhaps you should just see if there's an exemption that would cover the value of the unused vacation time?