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3/22/2010

SHORT SALE IRS RULES

Excerpts from IRS website this is not legal advise:


The Home Affordable Foreclosure Alternatives (HAFA) program goes into effect April 5. This is an extension of the first HAFA which hopes to provide default solutions to homeowners. Lenders and sellers will receive cash incentives to complete short sales. There is no real incentive for lenders to complete costly short sales; hopefully the number of closed units will be published. In the past months Lenders did not staff up their loss mitigation departments to answer calls and receive packages and the process was slow and difficult. Many lenders have made the process more transparent by posting requirements and forms. These set of pointers will aid sellers and real estate professionals to move the bottle neck of pending defaults in to closed short sales.



1. Work together with a title company, a tax advisor and a lender. These transactions are complex and the tax consequences are very important to review in advance.

2. Have seller contact both the first and second. If the second is a different lender than the first they may not be willing to cut their losses to 90% or more.

3. Review the type of second. Purchase money seconds have less tax liability. Credit Unions and private money seconds may not be willing to cooperate at all. There is no incentive for these to take the loss on their books today.

4. Review offers which have more strict property requirements such as FHA and VA since there is no money to pay for property improvements the buyer will need to pay for any repairs and this may not be allowed.

5. If the seller is not doing termite, do not accept an offer which mentions termite as FHA and VA loans will not waive Section I and Section II if called for in any contracts or counteroffers.

6. Review title report for liens, Homeowner Association past dues and back taxes, these numbers are moving targets which will grow larger as time unfolds.

7. Time is of the essence. Today the Seller can get approval from their lender for the listing dollar amount before they have a buyer under contract.





OFFSET Capitol losses against gains or no more than $3000 a year.

Sellers can offset their capital losses against capital gains.With the absence of capital gains, the yearly cap is $3,000 ($1,500 for married couples filing separately) on the losses they can offset against their "ordinary income," meaning income from sources like salaries, pensions and withdrawals from retirement plans.



Terms and definitions:

1099-A There can be severe tax consequences for an owner who simply walks away because he or she has little or no equity and the lender takes over and sells the place. Unless the owner is insolvent they will receive a 1099-A as income to declare

Owner occupied residence bought for $300,000, down payment of $15,000 and a mortgage $285,000. He is personally liable for the mortgage. The bank accepts a voluntary conveyance of the house Value of house is $230,000.

Tax code treats the transaction as a sale. A nondeductible loss of $70,000, is adjusted basis of $300,000 exceeding its market value of $230,000. No deduction for the loss is available.

Add the income of $50,000 when the bank cancels the loan. The $50,000 is the amount by which the debt of $280,000 exceeds market value of $230,000.

When the property is foreclosed or repossessed, the bank sends a Form 1099-A to owner/borrower and the IRS. A 1099-A indicates the foreclosure bid price ($230,000), the amount of debt ($280,000), and whether he was personally liable. Debt cancellation (here, $50,000) is taxed at the rates for ordinary income, same as for salary.





1099-C If you borrow money from a commercial lender and the lender later cancels or forgives the debt, you may have to include the cancelled amount in income for tax purposes, depending on the circumstances. When you borrowed the money you were not required to include the loan proceeds in income because you had an obligation to repay the lender. When that obligation is subsequently forgiven, the amount you received as loan proceeds is normally reportable as income because you no longer have an obligation to repay the lender. The lender is usually required to report the amount of the canceled debt to you and the IRS on a Form 1099-C, Cancellation of Debt.


 You borrow $10,000 and default on the loan after paying back $2,000. If the lender is unable to collect the remaining debt from you, there is a cancellation of debt of $8,000, this is taxable income to you.



Is Cancellation of Debt income always taxable?

Not always. There are some exceptions. The most common situations when cancellation of debt income is not taxable involve:

• Qualified principal residence indebtedness: This is the exception created by the Mortgage Debt Relief Act of 2007 and applies to most homeowners.

• Bankruptcy: Debts discharged through bankruptcy are not considered taxable income.

• Insolvency: If you are insolvent when the debt is cancelled, some or all of the cancelled debt may not be taxable to you. You are insolvent when your total debts are more than the fair market value of your total assets.
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• Non-recourse loans: A non-recourse loan is a loan for which the lender’s only remedy in case of default is to repossess the property being financed or used as collateral. That is, the lender cannot pursue you personally in case of default. Forgiveness of a non-recourse loan resulting from a foreclosure does not result in cancellation of debt income. However, it may result in other tax consequences.


Mortgage Forgiveness Debt Relief Act of 2007 ENDS 2012

Act allows exclusion of income realized as a result of modification of the terms of the mortgage, or foreclosure on your principal residence.

What does exclusion of income mean?

Normally, debt that is forgiven or cancelled by a lender must be included as income on your tax return and is taxable. But the Mortgage Forgiveness Debt Relief Act allows you to exclude certain cancelled debt on your principal residence from income. Debt reduced through mortgage restructuring, as well as mortgage debt forgiven in connection with a foreclosure, qualifies for the relief.



Does the Mortgage Forgiveness Debt Relief Act apply to all forgiven or cancelled debts?

No. Only forgiven or cancelled debt used to buy, build or substantially improve your principal residence, or to refinance debt incurred for those purposes. In addition, the debt must be secured by the home. This is known as qualified principal residence indebtedness. The maximum amount you can treat as qualified principal residence indebtedness is $2 million or $1 million married filing separately.



Does the Mortgage Forgiveness Debt Relief Act apply to debt incurred to refinance a home?

Debt used to refinance your home qualifies for this exclusion, but only to the extent that the principal balance of the old mortgage, immediately before the refinancing, would have qualified. Cash out refinance is a grey area.





What is limit on the amount of forgiven qualified principal residence indebtedness that can be excluded from income?

The maximum amount you can treat as qualified principal residence indebtedness is $2 million ($1 million if married filing separately for the tax year), at the time the loan was forgiven.



How do I know or find out how much debt was forgiven?

Your lender should send a Form 1099-C, Cancellation of Debt, by February 2, 2010. The amount of debt forgiven or cancelled will be shown in box 2.



Can I exclude debt forgiven on my second home, credit card or car loans?

NO. Only cancelled debt used to buy, build or improve your principal residence or refinance debt incurred for those purposes qualifies for this exclusion.



If part of the forgiven debt doesn't qualify for exclusion from income under this provision, is it possible that it may qualify for exclusion under a different provision?

Yes. The forgiven debt may qualify under the insolvency exclusion. It is not required to include forgiven debts in income to the extent that you are insolvent. You are insolvent when your total liabilities exceed your total assets. The forgiven debt may also qualify for exclusion if the debt was discharged in a Title 11 bankruptcy proceeding.



I lost money on the foreclosure of my home. Can I claim a loss on my tax return?

No. Losses from the sale or foreclosure of personal property are not deductible.



If I sold my home at a loss and the remaining loan is forgiven, does this constitute a cancellation of debt?

Yes. To the extent that a loan from a lender is not fully satisfied and a lender cancels the unsatisfied debt, you have cancellation of indebtedness income. If the amount forgiven or canceled is $600 or more, the lender must generally issue Form 1099-C.