Debt Forgiveness
It makes sense, doesn’t it? Generally, if some part of a debt is forgiven, then the forgiven part is treated as ordinary income by the IRS and taxed accordingly. Of course, there are a few exceptions. Bankruptcy, for instance, will wipe out debts without tax consequence as will insolvency and a few other situations.
Two Questions: Deficiency Judgment + Tax After Short Sale
So, what about a short sale? If a Pasadena homeowner does a short sale and walks away from a staggering mortgage debt, does the bank pursue? Does the IRS treat the unpaid balance of the mortgage as forgiven debt and therefore tax it as ordinary income?
These are two separate issues, both of which the homeowner considering a short sale must face. Luckily, the answer to both questions is NO and NO. The bank does not pursue for a first, second, third or fourth lien on the short sole house. The IRS does not consider the unpaid balance of the mortgage forgiven debt and does not expect to tax the homeowner. Here’s why on both counts.
California Does Not Allow Deficiency Judgments
As for the bank demanding a “deficiency judgment” after a short sale, Pasadena homeowners are lucky because they live in California. California legislators passed two laws within the last couple of years: one outlawed deficiency judgments for first mortgages and the other, which went into effect January 2012 outlawed those judgments for secondary mortgages. These apply whether it’s a primary residence or a rental. Banks have certainly gotten the message. California homeowners do not face deficiency judgments, though homeowners in many other states do.
Does a Short Sale Trigger a Tax? NO, NO, NO
As for the second question–will the unpaid mortgage balance be taxed? In fact, it used to be taxed. In 2007 Congress passed legislation which changed that. From 2007 until the end of 2012 a borrower’s forgiven debt is not treated as ordinary income and the borrower owes no tax. Some caveats apply. This applies to a principal residence and the amount forgiven cannot be larger than the original amount owed plus the cost of any improvements.
This law applies to an ordinary sale, a short sale or a foreclosure. Further, if the homeowner is so fortunate as to get a principal reduction from the lender, this law applies there, too.
The law does not apply to rental property, so doing a short sale there may well generate a taxable event. Refinanced mortgages are also a murky area with special provisions so that part of a forgiven debt may or may not be eligible for this special tax treatment. Usually, the forgiven debt cannot exceed the amount of the original debt plus any improvements. Equity lines and cash-out refinances must have been used for home improvements. Consulting an accountant is a good idea.
In practice, the lender files a 1099 about the sale with the IRS and the homeowner. The homeowner then files a form 982 to show the amount forgiven and the reason why it is not taxable. These days with the mountain of short sales and foreclosures, this is not hard to do. If there is any taxable part, the homeowner used form 1040, the normal income tax form, to report it as income.
The law is expiring this year, but the homes of millions of Americans and thousands of Pasadena homeowners remain underwater. The National Association of Realtors is lobbying to get the law extended a few more years, 5 at least. And. as we cannot fail to notice, it is an election year. Maybe this is one subject we will see some of the scant “bipartisan support” that actually makes the government work.








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