§ 36.6 — Statement of Social Security Number

Revised: May 6, 2009

[1]

Bankruptcy Rule 1007(f) requires the following statement of the debtor’s social security number:

(f) Statement of Social Security Number
An individual debtor shall submit a verified statement that sets out the debtor’s social security number, or states that the debtor does not have a social security number. In a voluntary case, the debtor shall submit the statement with the petition. In an involuntary case, the debtor shall submit the statement within 15 days after the entry of the order for relief.1
[2]

Rule 1007(f) is implemented by Official Bankruptcy Form 21, which requires each Chapter 13 debtor to check a box indicating that the debtor has a social security number and to reveal all nine digits of that number. Otherwise, each debtor must certify the absence of a social security number. If the debtor has a taxpayer identification number other than a social security number, that other number must be provided. This form is submitted under penalty of perjury and must be signed by the debtor and by the joint debtor in a husband-and-wife case.

[3]

Rule 1007(f) and Official Bankruptcy Form 21 are the consequences of a Privacy Policy adopted by the Judicial Conference of the United States in September of 2001. The goal of the Conference was to minimize public disclosure of social security numbers for individual debtors while capturing all nine digits so that initial notices will contain enough information to allow creditors to identify debtors. The Form is a compromise between the statutory requirement of social security numbers in notices in § 342(c) and the Privacy Policy expressed by the Judicial Conference.

[4]

Official Bankruptcy Form 21 must be “submitted”—not “filed”—with the petition.2 Use of “submitted” seems to be intentional because the comments to Rule 1007(f) state: “The debtor submits the statement, but it is not filed, nor is it included in the case file.”3 This is an interesting concept for bankruptcy court clerks and practitioners. What will the clerk do with the statement once the complete social security number has been culled and used for noticing? Who will have access to these statements and for what purposes? Will the U.S. trustee (or someone else?) routinely consult the statements to verify the numbers given? Are debtors’ counsel required to maintain special privacy with respect to the statement? The electronic case filing system (ECF) segregates Official Form 21 when submitted by the debtor and precludes electronic access to that document. Ultimately, it is the debtor’s and debtor’s attorney’s responsibility to ensure that only the last four digits of the social security number appear on documents that are available for public view.

[5]

The Bankruptcy Code does not require submission of the statement of social security number to commence a Chapter 13 case.4 The consequences of failing to submit the new statement are not clear. Bankruptcy Rule 5005(a) requires the clerk of the bankruptcy court to accept the petition for filing notwithstanding that it is not accompanied by an Official Bankruptcy Form 21 statement of social security number.5 Failing to submit the statement with the petition will disable the clerk and the Chapter 13 trustee from giving proper notice of the filing and of the scheduling of the § 341 meeting of creditors. Neglect or refusal to file the statement might be an included “cause” for conversion or dismissal under § 1307.6 There is no obvious good reason for the debtor to fail or refuse to file the new statement—even if the debtor does not have a social security number, the new form simply requires the debtor to state under oath that there is no social security number. The debtor’s failure to provide an accurate social security number is likely to generate discharge issues.7


 

1  Fed. R. Bankr. P. 1007(f).

 

2  Fed. R. Bankr. P. 1007(f).

 

3  Fed. R. Bankr. P. 1007(f) 2003 committee comment.

 

4  See 11 U.S.C. § 521.

 

5  As amended in 1993, Bankruptcy Rule 5005(a) states: “The clerk shall not refuse to accept for filing any petition or other paper presented for the purpose of filing solely because it is not presented in proper form as required by these rules or any local rules or practices.”

 

6  See §§ 312.1 [ Cause for Conversion ] § 141.3  Cause for Conversion and 333.1 [ Cause for Dismissal—In General ] § 152.2  Cause for Dismissal—In General.

 

7  See, e.g., Ellett v. Stanislaus (In re Ellett), 506 F.3d 774, 775–76, 781 (9th Cir. 2007) (Alarcón, Thompson, Tallman) (“[D]ue to Mr. Ellett’s negligence in listing an erroneous SSN on his bankruptcy petition and § 341(a) notice, proper notice was not provided to the FTB. Consequently, Mr. Ellett’s Chapter 13 plan did not ‘provide for’ the FTB taxes.” Incongruously, the Ninth Circuit states, “The FTB received the § 341(a) notice regarding the commencement of Mr. Ellett’s bankruptcy action,” and “the FTB did not learn of Mr. Ellett’s bankruptcy proceedings until after the claims bar date had passed.” The FTB had a procedure to determine whether a debtor owed taxes when the name and the SSN on a bankruptcy notice did not match up, but this procedure “was used infrequently, if at all, due to resource limitations when Mr. Ellett filed for bankruptcy.”).