Concealment of an asset bars exemption only if the debtor intentionally or fraudulently attempts to hide the asset from the estate.
Debtors filed for bankruptcy and later sought to amend their schedules to claim a tax refund as exempt property after spending it on counsel's advice. The district court denied the exemption claim, finding the debtors concealed the asset. The Eleventh Circuit holds that a tax refund is property of the estate and that a court may deny leave to amend only upon a showing of bad faith or prejudice to creditors. The court finds no bad faith or prejudice here, as the debtors disclosed the expected refund and acted on legal advice. Because the debtors did not intentionally or fraudulently conceal the asset, the concealment bar does not apply, and the amendment to claim the exemption must be allowed.
At page 833 Barring asset exemption for concealment or bad faith amendment101 citing cases“a court might deny leave to amend on a showing of a debtor's bad faith or of prejudice to creditors.”
- In re Kenneth L. Kaelin, Debtor. Kenneth L. Kaelin v. Daniel Bassett, Patricia Bassett, John v. Labarge, Jr., 308 F.3d 885 (8th Cir. 2002).published ([A] court might deny leave to amend on a showing of a debtor’s bad faith or of prejudice to creditors.)
- In re Cudeyro, 213 B.R. 910 (Bankr. E.D. Pa. 1997).published(concealment of an asset will bar exemption of that asset)
- In re Fournier, 169 B.R. 282 (Bankr. D. Conn. 1994).published(Simple delay in filing an amendment where ... the case is not closed does not alone prejudice creditors.)
- United States v. Howard Allen Feldman, 338 F.3d 212 (3d Cir. 2003).published ([C]oncealment of an asset will bar exemption of that asset.)
- Marchand v. Whittick (In re Whittick), 547 B.R. 628 (Bankr. D.N.J. 2016).publishedIndeed, courts have held that an amendment of an exemption claim “may be denied upon a showing of bad faith or prejudice to creditors or third parties.” Matter of Yonikus, 996 F.2d 866, 872 (7th Cir.1993) (citing Matter of Doan, 672 F.2d 8…
- In re Saldana, 531 B.R. 141 (Bankr. N.D. Tex. 2015).published See, e.g., In re Yonikus, 996 F.2d 866, 872-873 (C.A.7 1993); In re Doan, 672 F.2d 831, 833 (C.A.11 1982) (per curiam); Stewart v. Ganey, 116 F.2d 1010, 1011 (C.A.5 1940).
- Mateer v. Ostrander (In re Mateer), 525 B.R. 559 (Bankr. D. Mass. 2015).publishedSee, e.g., Matter of Yonikus, 996 F.2d 866, 868 (7th Cir.1993); Doan v. Hudgins (In re Doan), 672 F.2d 831, 833 (11th Cir.1982); In re Morgan 10-40497, 2011 WL 5025333 , *7 (Bankr.
- Webster v. Mooney (In re Mooney), 526 B.R. 421 (Bankr. M.D. Ga. 2015).publishedDoan v. Hudgins (In re Doan), 672 F.2d 831, 833 (11th Cir.1982).
- In re Bodensiek, 522 B.R. 737 (Bankr. S.D. Fla. 2015).publishedDoan v. Hudgins (In re Doan), 672 F.2d 831, 833 (11th Cir.1982).
- Elliott v. Weil (In Re Elliott), 523 B.R. 188 (B.A.P. 9th Cir. 2014).publishedMartinson v. Michael (In re Michael), 163 F.3d 526, 529 (9th Cir.1998) (adopting test set forth in Doan v. Hudgins (In re Doan), 672 F.2d 831, 833 (11th Cir.1982)).
Show 87 more citing cases
- In re Ian Nehemiah Gray & Cynthia Jackson Gray, 523 B.R. 170 (B.A.P. 9th Cir. 2014).publishedThe Eleventh Circuit in Doan v. Hudgins (In re Doan), 672 F.2d 831, 833 (11th Cir.1982), first recognized that bankruptcy courts had discretion to deny leave to amend on a showing of either debtor’s bad faith or prejudice to creditors base…
- In re Hale, 511 B.R. 870 (Bankr. W.D. Mich. 2014).publishedSuch a disclosure might well have “negate[d] an indication of intent to conceal.” In re OBrien, 443 B.R. at 141 (citing Doan v. Hudgins (In re Doan), 672 F.2d 831, 833-34 (11th Cir.1982)).
- Matos v. Rivera (In re Matos), 478 B.R. 506 (B.A.P. 1st Cir. 2012).publishedSee, e.g., In re Meyers, 616 F.3d 626, 628 (7th Cir.2010) ("Courts have recognized that tax refunds received after the petition may, in some cases, represent pre-petition assets and thus are part of the bankruptcy estate"); Benn v. Cole (I…
- Santiago v. Rivera, 478 B.R. 516 (B.A.P. 1st Cir. 2012).publishedSee, e.g., In re Meyers, 616 F.3d 626, 628 (7th Cir.2010) (“Courts have recognized that tax refunds received after the petition may, in some cases, represent pre-petition assets and thus are part of the [chapter 7 debtor’s] bankruptcy esta…
- Ellman v. Baer, 467 B.R. 635 (D. Md. 2012).published E.g., In re Meyers, 616 F.3d 626, 630 (7th Cir.2010) (applying “pro rata by days” method for calculating what portion of debtor’s tax refund was subject to turnover); In re Benn, 491 F.3d 811 , 813 (8th Cir.2007) (“A debtor’s anticipated t…
- In re Allen, 454 B.R. 894 (Bankr. S.D. Fla. 2011).publishedIn this circuit, the bankruptcy court may deny a debtor the right to amend his or her schedules, including the schedule of exempt assets, only “on a showing of a debtor’s bad faith or of prejudice to creditors.” Doan v. Hudgins (In re Doan…
- Claybrook v. AutoZone Texas, L.P. (In Re Am. Remanufacturers, Inc.), 451 B.R. 349 (Bankr. D. Del. 2011).publishedR.Evid. 602; Snyder v. Rockland Trust Co. (In re Snyder), 279 B.R. 1, 6 (1st Cir. BAP 2002) (stating that prejudice to a single creditor is sufficient basis to deny amendment); Arnold v. Gill (In re Arnold), 252 B.R. 778, 784 (9th Cir. BAP…
- In re Hamilton, 461 B.R. 878 (Bankr. D.N.M. 2011).publishedGrogan, 300 B.R. at 807 (citing Matter of Yonikus, 996 F.2d 866, 868 (7th Cir.1993) (“fraudulent concealment of an asset works as a forfeiture of exemption, rights”); Doan, 672 F.2d at 833. (“concealment of an asset will bar exemption of t…
- In re Wilson, 446 B.R. 555 (Bankr. M.D. Fla. 2011).published Id. (citing Doan, 672 F.2d at 833). 37 .
- In re Orozco, 444 B.R. 472 (Bankr. S.D. Fla. 2011).published (decision based on Bankruptcy Rule 110, the predecessor to Rule 1009.)
- In re OBrien, 443 B.R. 117 (Bankr. W.D. Mich. 2011).published “Courts may still refuse to allow an amendment where the debtor has acted in bad faith or where property has been concealed.” Lucius v. McLemore, 741 F.2d at 127 (citing Doan v. *141 Hudgins (In re Doan), 672 F.2d 831, 833 (11th Cir.1982)).
- Tyner v. Nicholson (In Re Nicholson), 435 B.R. 622 (B.A.P. 9th Cir. 2010).published In Andermahr v. Barrus (In re Andermahr), the panel adopted the rule of the Eleventh Circuit in In re Doan that a bankruptcy court may disallow a claim of exemption on a showing of “bad faith by the debtor or prejudice to creditors.” 30 B.…
- Leslie S. Osborne v. Denise J. Dumoulin, 326 F. App'x 498 (11th Cir. 2009).unpublishedCourts have no “discretion to deny amendments to claims of exemption, unless a showing of bad faith by the debtor or prejudice to a *501 creditor is made by clear and convincing evidence.” In re Jordan, 332 B.R. 472, 475 (Bankr.M.D.Fla.200…
- In re Bennett, 395 B.R. 781 (Bankr. M.D. Fla. 2008).publishedThe Doan Court included one limitation on the right to amend — that an amendment might be denied if there is a showing of bad faith or prejudice to creditors. 672 F.2d at 833.
- In re Shethi, 389 B.R. 588 (Bankr. N.D. Ill. 2008).published Id. at 832.
- In re Azbill v., No. 06-8074 (B.A.P. 6th Cir. Mar. 11, 2008).unpublishedCourts may “refuse to allow an amendment where the debtor has acted in bad faith or where property has been concealed.” Lucius v. McLemore, 741 F.2d 125, 127 (6th Cir. 1984) (citing Doan v. Hudgins (In re Doan), 672 F.2d 831, 833 (11th Cir…
- In re LaPlana, 363 B.R. 259 (Bankr. M.D. Fla. 2007).published(the right to a refund is property of the estate, citing Bankruptcy Code legislative history and Segal v. Rochelle, 382 U.S. 375 , 86 S.Ct. 511 , 15 L.Ed.2d 428 (1966))
- In re Mathews, 360 B.R. 732 (Bankr. M.D. Fla. 2007).published(Schedule C may be amended at any time before the case is closed, but a court might deny leave to amend on a showing of a debtor’s bad faith or prejudice to creditors)
- Opel v. Daly (In Re Daly), 344 B.R. 304 (Bankr. M.D. Pa. 2005).publishedFirst espoused by the Eleventh Circuit Court in Doan v. Hudgins, 672 F.2d 831, 833 (11th Cir.1982), which relied in part on the Third Circuit Court’s decision in Matter of Gershenbaum, 598 F.2d 779 (3d Cir.1979), a number of courts have ad…
- Walsh v. Helsel (In Re Helsel), 326 B.R. 591 (Bankr. W.D. Pa. 2005).publishedDoan v. Hudgins (Matter of Doan), 672 F.2d 831, 833 (11th Cir.1982).
- Bracewell v. Kelley (In Re Bracewell), 322 B.R. 698 (M.D. Ga. 2005).publishedDoan v. Hudgins (In re Doan), 672 F.2d 831, 833 (11th Cir.1982).
- Baldwin v. Citigroup, Inc. (In Re Baldwin), 307 B.R. 251 (M.D. Ala. 2004).publishedMatter of Doan, 672 F.2d 831, 833 (11th Cir.1982) (discussing Fed. R.
- In re Grogan, 300 B.R. 804 (Bankr. D. Utah 2003).published(holding "concealment of an asset will bar exemption of that asset)
- In re Kauffman, 299 B.R. 641 (Bankr. M.D. Fla. 2003).publishedDoan v. Hudgins (In re Doan), 672 F.2d 831, 833 (11th Cir.1982).
- Wood v. Premier Capital, Inc. (In Re Wood), 291 B.R. 219 (B.A.P. 1st Cir. 2003).published See id. at 871; Matter of Doan, 672 F.2d 831, 833 (11th Cir.1982).
- In re Santaella, 298 B.R. 793 (Bankr. S.D. Fla. 2002).publishedThe law is clear, however, that “concealment of an asset will bar exemption of that asset.” Matter of Doan, 672 F.2d 831, 833 (11th Cir.1982); see also In re Talmo, 185 B.R. 637, 644, 649 (Bankr.S.D.Fla.1995).
- In re Knapp, 283 B.R. 819 (Bankr. W.D. Pa. 2002).publishedIn re Kaelin, 271 B.R. 316, 320 (8th Cir. BAP 2002); See also In re Clark, 274 B.R. 127, 136 (Bankr.W.D.Pa.2002). “[Pjrejudice to the trustee or creditors may prevent the debtor in bankruptcy from amending the petition or schedules.” In re…
- In re Terry, 279 B.R. 240 (Bankr. W.D. Ark. 2002).publishedDoan v. Hudgins (In re Doan), 672 F.2d 831, 833 (11th Cir.1982).
- In re Zenone, 278 B.R. 792 (Bankr. E.D. Ark. 2002).publishedFurthermore, allowing an amendment to exemptions would be prejudicial to the creditors and Trustee who are now without a remedy to object to the Debtor’s claim of exemption, pursuant to 11 U.S.C. § 522 (c)(10). 4 In re Yonikus, 996 F.2d 86…
- Kaelin v. Bassett (In Re Kaelin), 271 B.R. 316 (B.A.P. 8th Cir. 2002).published See Martinson v. Michael (In re Michael), 163 F.3d 526, 529 (9th Cir. 1998); Doan v. Hudgins (In re Doan), 672 F.2d 831, 833 (11th Cir. 1982); Magallanes v. Williams (In re Magallanes), 96 B.R. 253, 256 (B.A.P. 9th Cir. 1988); Lucius v. Mc…
- Marie v. Green (In Re Green), 268 B.R. 628 (Bankr. M.D. Fla. 2001).published Matter of Doan, 672 F.2d 831, 833 (11th Cir.1982).
- In re Asbury, 263 B.R. 839 (Bankr. S.D. Ohio 2001).publishedDoan v. Hudgins (Matter of Doan), 672 F.2d 831, 833 (11th Cir.1982).
- Arnold v. Gill (In Re Arnold), 252 B.R. 778 (B.A.P. 9th Cir. 2000).published(bad faith by debtor or prejudice to creditors might bar amendment)
- Hunerwadel v. Dulock (In Re Dulock), 250 B.R. 147 (Bankr. N.D. Ga. 2000).publishedDoan v. Hudgins (In re Doan), 672 F.2d 831, 833 (11th Cir.1982).
- Travelers Indem. Co. of Illinois v. Griner (In Re Griner), 240 B.R. 432 (Bankr. S.D. Ala. 1999).publishedDoan v. Hudgins (In re Doan), 672 F.2d 831, 833 (11th Cir.1982).
- In re Dipzinski, 234 B.R. 746 (Bankr. E.D. Ark. 1999).publishedIn re Yonikus 996 F.2d 866, 873 (7th Cir.1993); Doan v. Hudgins (In re Doan), 672 F.2d 831, 833 (11th Cir.1982); In re St.
- Hannigan v. White (In Re Hannigan), 409 F.3d 480 (1st Cir. 2005).published
- Lester Shackman Shirkey, Jr. v. John G. Leake, 715 F.2d 859 (4th Cir. 1983).published
- Frederick C. Lucius v. John C. McLemore Tr.-Appellee, 741 F.2d 125 (6th Cir. 1984).published
- 15 Collier bankr.cas.2d 1225 v. Clyde E. Williamson, 804 F.2d 1355 (5th Cir. 1986).published
- In the Matter of Michael Don HARDAGE, Appellant, v. HERRING Nat'l BANK, Appellee, 837 F.2d 1319 (5th Cir. 1988).published
- In re Calder, 973 F.2d 862 (10th Cir. 1992).published
- Bankr. L. Rep. P 77,861 v. Jereld Joe Michael Shirley Kay Michael, 163 F.3d 526 (9th Cir. 1998).published
- In re Dussing, 205 B.R. 332 (Bankr. M.D. Fla. 1996).published
- In re Swanson, 207 B.R. 76 (Bankr. D.N.J. 1997).published
- In re Fisher, 27 B.R. 71 (Bankr. M.D. Pa. 1983).published
- In re McNulty, 142 B.R. 106 (Bankr. D.N.J. 1992).published
- Kobaly v. Slone (In Re Kobaly), 142 B.R. 743 (Bankr. W.D. Pa. 1992).published
- In re McDonald, 353 B.R. 287 (Bankr. D. Kan. 2006).published
- In re Williams, 26 B.R. 741 (Bankr. M.D. Tenn. 1982).published
- Andermahr v. Barrus (In Re Andermahr), 30 B.R. 532 (B.A.P. 9th Cir. 1983).published
- Wright v. Internal Revenue Serv. (In Re Canon), 130 B.R. 748 (Bankr. N.D. Tex. 1991).published
- Hunter v. Patton (In Re Patton), 200 B.R. 172 (Bankr. N.D. Ohio 1996).published
- McFatter v. Cage, 204 B.R. 503 (S.D. Tex. 1996).published
- In re Bading, 154 B.R. 687 (Bankr. W.D. Tex. 1993).published
- Matter of Williams, 197 B.R. 398 (Bankr. M.D. Ga. 1996).published
- In re St. Angelo, 189 B.R. 24 (Bankr. D.R.I. 1995).published
- In re Waller, 424 B.R. 306 (Bankr. S.D. Ohio 2010).published
- Bierbach v. Brooks (In Re Brooks), 393 B.R. 80 (Bankr. M.D. Pa. 2008).published
- In re Salvucci, 339 B.R. 279 (Bankr. D. Mass. 2006).published
- Am. Gen. Fin., Inc. v. Tippins (In Re Tippins), 221 B.R. 11 (Bankr. N.D. Ala. 1998).published
- In re Tapley, 66 B.R. 348 (Bankr. S.D. Fla. 1986).published
- In re Smura, 84 B.R. 327 (Bankr. W.D.N.Y. 1988).published
- Nelson v. White (In Re White), 61 B.R. 388 (Bankr. W.D. Wash. 1986).published
- Lake Minnewaska Mountain Houses, Inc. v. Smiley (In Re Lake Minnewaska Mountain Houses, Inc.), 42 B.R. 366 (S.D.N.Y. 1984).published
- In re Myatt, 101 B.R. 197 (Bankr. E.D. Cal. 1989).published
- In re Gaines, 106 B.R. 1008 (Bankr. W.D. Mo. 1989).published
- In re Doemling, 127 B.R. 954 (W.D. Pa. 1991).published
- In re Hardy, 234 B.R. 94 (Bankr. W.D. Mo. 1999).published
- In re Handshaw, 198 B.R. 633 (Bankr. M.D. Fla. 1996).published
- In re Gaudet, 109 B.R. 548 (Bankr. D.R.I. 1989).published
- Neary v. Leech (In Re Leech), 408 B.R. 222 (Bankr. E.D. Wis. 2009).published
- In re McVay, 345 B.R. 846 (Bankr. N.D. Ohio 2006).published
- In re Gonzalez, 149 B.R. 9 (Bankr. D. Mass. 1993).published
- In re Miller, 113 B.R. 98 (Bankr. D. Mass. 1990).published
- United States ex rel. Internal Revenue Serv. v. Johnson (In Re Johnson), 136 B.R. 306 (Bankr. M.D. Ga. 1991).published
- In re Drake, 39 B.R. 75 (Bankr. E.D.N.Y. 1984).published
- In re Davis, 38 B.R. 585 (Bankr. M.D. Tenn. 1984).published
- Martinson v. Michael (In re Michael), 163 F.3d 526 (9th Cir. 1998).published
- Ellman v. Baker (In re Baker), 514 B.R. 860 (E.D. Mich. 2014).published
- In re Bogan, 534 B.R. 346 (Bankr. W.D. Wis. 2015).published
- Stinson v. Williamson, 804 F.2d 1355 (5th Cir. 1986).published
- Calder v. Job (In re Calder), 973 F.2d 862 (10th Cir. 1992).published
- In the Matter of Daniel J. YONIKUS & Carolyn S. Yonikus, Debtors. Appeal of Daniel J. YONIKUS, 996 F.2d 866 (7th Cir. 1993).published
- In re Tarrer, 273 B.R. 724 (Bankr. N.D. Ga. 2001).published
- Grzesnikowski v. Shaffer (In Re Shaffer), 92 B.R. 632 (Bankr. E.D. Pa. 1988).published
- In re Welton, 448 B.R. 76 (Bankr. M.D. Fla. 2011).published
At page 832 Court discretion to deny amendment to claim exemption4 citing casesdebtors received refund in April, spent it, and listed amended exemption in September; the court permitted amendment because there was no intentional or fraudulent concealment
- In re OBrien, 443 B.R. 117 (Bankr. W.D. Mich. 2011).published “Courts may still refuse to allow an amendment where the debtor has acted in bad faith or where property has been concealed.” Lucius v. McLemore, 741 F.2d at 127 (citing Doan v. *141 Hudgins (In re Doan), 672 F.2d 831, 833 (11th Cir.1982)).
- In re Shethi, 389 B.R. 588 (Bankr. N.D. Ill. 2008).published Id. at 832.
- In re Rash, 22 B.R. 323 (Bankr. D. Kan. 1982).published
- In re Smith, 77 B.R. 633 (Bankr. N.D. Ohio 1987).published
At page 834 “should not serve as a model for a petitioner in bankruptcy to follow,”1 citing case
- In re Haskett, 297 B.R. 637 (Bankr. N.D. Ala. 2003).publishedIn Doan, the Court insinuated its foresight of such a rule’s future criticism by commenting that though debtors’ failure to schedule their potential tax refund as an asset was not necessarily model behavior, there was no evidence that the…
v.
Gary A. HUDGINS, Trustee
Robert and Elizabeth Doan filed a joint petition for bankruptcy in November 1979. The petition stated that the Doans expected a tax refund for 1979 but did not list the refund on the schedule of property of the estate or claim the refund as an exemption from the assets available for liquidation. The Doans again mentioned the expected refund at a December 1979 meeting of creditors. They became eligible for a $767 refund early in 1980. At one point the Doans’ attorney asked the trustee if the refund was being held up and was informed that the trustee had not put a lien on the refund.
Although the Internal Revenue Service generally sends a bankrupt’s refund to the bankruptcy trustee, in this case it was mailed to the Doans themselves in April 1980. On advice of counsel, they spent the money. Wondering why he had not received the refund, the trustee made inquiries and was told by the Doans of what had transpired. In September 1980 the Doans moved to amend the schedules to list the refund as property of the estate and to claim it as exempt property.
The bankruptcy judge denied the motion to amend to claim the additional exemption and implicitly allowed an amendment to add the refund to the assets of the estate. The district court affirmed after modifying the decision to include in the schedule of assets only the pro rata portion of the refund allowable to the part of 1979 before the bankruptcy petition was filed. The Doans appeal the inclusion of this portion of the refund in the estate without also allowing the claim of exemption.
We first consider the Doans’ contention that their 1979 tax refund is not property of their estate. Section 541 of the Bankruptcy Code, 11 U.S.C.A. § 541, defines the estate quite broadly as including “all legal or equitable interests of the debtor in property as of the commencement of the case.” The[*833] Doans argue that practical difficulties should cause us to hold that this language, broad though it is, should not include the refund. They note that because the amount of the refund does not become fixed until the end of the tax year — after filing in this instance — the disposition of a case could be held up for many months until the amount of the refund finally is resolved.
Supreme Court precedent makes clear, however, that this argument does not limit the broad sweep of Section 541. In Segal v. Rochelle, 382 U.S. 375, 86 S.Ct. 511, 15 L.Ed.2d 428 (1966), the debtor received a “loss carryback” refund for losses suffered during the tax year in which the bankruptcy case was filed. The Court held that this refund was property of the estate even though the amount of the refund did not become fixed until the end of the tax year, after the date of filing. The Court rejected arguments that discharge of the debtor would be delayed unduly, noting that the expectancy of the refund could be sold or liquidated or that, if the delay was too inconvenient given the expected amount of the refund, the trustee could opt to proceed without the refund. Segal was decided under the old Bankruptcy Act rather than the Code; the legislative history of the Code, however, makes clear that Segal retains its vitality and also that the applicability of the holding is not limited to loss carrybacks. “The result of Segal v. Rochelle, 382 U.S. 375, 86 S.Ct. 511, 15 L.Ed.2d 428 (1966), is followed, and the right to a refund is property of the estate.” S.Rep. No. 989, 95th Cong., 2d Sess. 82 (footnote omitted), reprinted in [1978] U.S.Code Cong. & Ad. News 5787, 5868; H.R. Rep. No. 595, 95th Cong., 2d Sess. 367 (footnote omitted), reprinted in [1978] U.S.Code Cong. & Ad. News 5963, 6323, U.S.Code Cong. & Ad. News 1978, pp. 5787, 5868, 6323.
We turn next to whether the lower court had discretion to deny the Doans’ amendment to claim their refund as an exemption. Bankruptcy Rule 110 states that “[a] voluntary petition, schedule or statement of affairs may be amended as a matter of course at any time before the case is closed.” The Third Circuit has held that this rule denies the courts discretion to deny leave to amend or to require a showing of good cause. In re Gershenbaum, 598 F.2d 779, 781-82 (1979). See also In re Burgess, 1 B.R. 421, 423-24 (Bkrtcy.M.D.Tenn.1979). We agree with this holding, with the limited caveat that a court might deny leave to amend on a showing of a debtor’s bad faith or of prejudice to creditors. Applying this reading of Rule 110, we rule that the amendment should have been allowed. As we discuss below, we find no bad faith. The lower court cited prejudice to creditors as a reason for denying leave to amend. We find no evidence of prejudice on the record. Simple delay in filing an amendment where, as here, the case is not closed does not alone prejudice creditors. Nor does prejudice to creditors occur merely because a claimed exemption, if held timely, would be granted.[1]
Finally, we address the bankruptcy court’s conclusion that the Doans’ claim to an exemption should be denied because they concealed the asset, their refund, that they now seek to exempt. We agree that concealment of an asset will bar exemption of that asset. See Stewart v. Ganey, 116 F.2d 1010 (5th Cir. 1941); 3 L.King (ed.), Collier on Bankruptcy ¶ 522.08 (1981). On the facts of this case, however, we find the court’s conclusion that the Doans intentionally or fraudulently attempted to conceal their tax refund to be clearly erroneous. They disclosed the expected refund in their initial filing. Their attorney discussed the refund with the trustee and asked if a lien had been placed on it. Only on their attorney’s advice, based on his reading of the law, did they spend the money. When the trustee inquired about the refund, they readily submitted all information to him. Their sole default lay in not informing the trustee immediately after receiving the re[*834] fund. Although that action should not serve as a model for a petitioner in bankruptcy to follow, it does not show intentional or fraudulent concealment, or even bad faith.
The order of the district court is REVERSED and the case is REMANDED with instructions to grant appellants’ motion to amend to claim the exemption of their tax refund from the property of the debtors’ estate.
Rule 110 merely allows a claim to be made. Under Rule 403 the trustee then considers whether he should allow the claim. See In re Burgess, 1 B.R. 421, 424 (Bankr.M.D.Tenn.1979). The trustee does not contest that the claim, if permitted, should be granted.