The number of foreclosed homes and short sales has skyrocketed in recent years amongst a failing economy and an unemployment rate hitting historical highs. To make matters worse, some experts are predicting a “bottoming out” of the economy as late as 2012. In the meantime, the number of people losing their homes continues to rise.

The foreclosure of Real Property can give rise to many questions and concerns for taxpayers. 

Upon the foreclosure or short sale of a piece of real estate, the lender with the deficiency will issue a Form 1099-C, Cancellation of Debt to both the taxpayer and the IRS. In past years, the amount of cancelled debt would give rise to what is sometimes referred to as “phantom income”. This phantom income would be taxable as ordinary income and would result in tax that had to be paid by the taxpayer. The taxpayer however, having never taken actual receipt of any cash, would many times be unable to pay the tax this phantom income produced.

Fortunately for taxpayers, Congress addressed this very issue in The Mortgage Forgiveness Debt Relief Act of 2007. The bill; H.R. 3648, was passed by Congress and was signed by President George W. Bush in December of 2007. The bill, grants relief to homeowners that have been given relief from mortgage debt through a foreclosure, short sale or other similar agreement with the lender. Generally, eligible debt is what is referred to as acquisition indebtedness. Acquisition indebtedness is defined as debt incurred to acquire, construct or rehabilitate a residence. However, refinanced debt will qualify, so long as the debt does not exceed the original amount and home equity debt will qualify so long as the funds were used to improve the taxpayer’s home. No relief is available for cash-outs. The forgiven mortgage debt must have been secured by the residence and no more than $2 million of mortgage debt is eligible for the exclusion ($1 million of mortgage debt for a married person filing separately). The relief applies to qualified debt forgiven between January 1st 2007 and December 31st 2012.

While the State of California does not conform exactly to Federal law, it also provides relief from tax on forgiven mortgage debt for calendar years 2007 and 2008. Senate Bill 1055, enacted September 25th, 2008

For taxpayers who have lost their homes either through foreclosure or a short sale scenario these relief provisions are welcome news. However, it is important for taxpayers to remember that these provisions only apply to principle residence loans that were used to acquire, construct or rehabilitate a taxpayer’s principle residence. Taxpayers who have used loan proceeds for other purposes may still be facing a taxable income situation. Taxpayers who have experienced or are facing foreclosure or short sale scenarios on rental, business or investment properties are likewise at risk as these provisions will not apply. In these situations it is imperative that taxpayers have a competent tax professional to assist them with their tax planning and preparation. Taxpayers may still be able to obtain relief under other provisions such as the establishment of insolvency. However, navigating specific tax laws in these areas can be tricky.

Christopher R. Jacquez, EA

CEO, eTaxRelief – Tax Negotiation & Preparation Services, Debt Relief

www.eTaxRelief.com