Short Sale Consultations

When you come to the tough decision to short sale or foreclose your home working with Wagner & Associates Tax Solutions Inc will help prevent the wound the IRS would inflict by trying to collect massive amounts of tax from your family. Losing a home is hard enough and add the IRS implications it can be the one scariest thing your family will face in today’s complex tax world. Wagner & Associates Tax Solutions have Enrolled Agents and tax professionals who understand and don’t judge anyone who comes in for help. Call Wagner & Associates Tax Solutions at (702) 564-1040 or make an appointment 24 hours a day on the appointment tab at the top of this page if you find your family in this situation.

As this tax season approaches especially 2012, and more importantly, the expiration of the Mortgage Debt Relief Act of 2007 after 2013, it is important to review the tax consequences following a short sale.  In general, the IRS will treat any canceled debt, such as forgiveness of a mortgage loan, as taxable income.

The most common exemptions are insolvency and bankruptcy. To prove insolvency, your total debts have to be greater than the total fair market value of your assets. A lesser known exemption, and one that is due to expire at the end of 2013, is the Mortgage Debt Relief Act of 2007. According to the Debt Relief Act, a homeowner may exclude the forgiven debt as taxable income if you can prove to the IRS that the indebtedness was incurred on your “qualified principal residence.” Most homeowners qualify for tax relief under the Debt Relief Act. Keep in mind, however, that not all states recognize the Debt Relief Act and you should always check with a qualified tax professional prior to agreeing to a short sale. The following paragraphs will explain why the IRS considers forgiven debt as taxable income and how to qualify for a tax exemption following a short sale.

The IRS Treats Forgiven Debt As Taxable Income

According to current tax laws, if you owe a debt to a third party and they cancel or forgive that debt, the IRS considers the canceled debt as “taxable income.” In the case of a mortgage loan, if you don’t repay your debt, you will be taxed on the amount of the money you failed to repay the lender, commonly referred to as the loan deficiency. In other words, if default on your loan, and the lender waives their right to seek repayment, the unpaid loan proceeds are converted into taxable income because you no longer have the obligation to repay the lender.  Thus, following a short sale in which the lien holder relinquishes their right to collect the deficiency amount, they are obligated to report any forgiven debt to the IRS on a Cancellation of Debt form 1099-C. Individuals are similarly required to report the forgiven debt to the IRS on Tax Form 982 and attach the form to your tax return.

Exceptions To The Rule

As previously mentioned above, the only way to exclude forgiven debt from taxable income is to qualify for one of the tax exemptions from the Mortgage Debt Relief Act of 2007. Unless you can prove insolvency or file for bankruptcy, the tax implications of a short sale will primarily depend on whether the property being sold is your primary residence and, if so, whether you qualify for a tax exemption. The most common scenarios when cancellation of debt is not taxable income involve the following:

  • Qualified principal residence indebtedness: This is the exception created by the Mortgage Debt Relief Act of 2007; The Act applies only to forgiven or canceled debt used to buy, build or substantially improve your principal residence, or to refinance debt incurred for those purposes.  The maximum amount you can treat as qualified principal residence indebtedness is $2 million or $1 million if married filing separately. The Debt Relief Act expires at the end of 2013, as it was just extended one year in the “fiscal cliff” bill Congress passed January 3, 2013.
  • 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;
  • Certain farm debts(granted there are not many farmers in Nevada): If you incurred the debt directly in operation of a farm, more than half your income from the prior three years was from farming, and the loan was owed to a person or agency regularly engaged in lending, your cancelled debt is generally not considered taxable income;
  • 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. It is important to determine whether your jurisdiction is considered recourse or non-recourse.

Qualified Principal Residence Indebtedness

The  Mortgage Forgiveness Debt Relief Act of 2007 is the most common exception to the rule that canceled debt is taxable income.  According to the Debt Relief Act, taxpayers may exclude debt forgiven on their “qualified principal residence” if the balance of their loan is $2 million or less. Qualified principal residence indebtedness is limited to forgiven or cancelled debt used to buy, build or substantially improve your principal residence, or to refinance debt incurred for those purposes. Thus, even debt incurred as a result of a refinance loan will qualify for this exclusion, but only to the extent that the principal balance of the old mortgage would have qualified.

In other words, if the debt forgiven was a result of a short sale of your qualified principle residence, and you never refinanced, you will qualify for the tax relief.  If, however, you took out a refinance loan on your principal residence, you will qualify for tax relief only up to the principal amount of the original mortgage.  This is a very important consideration and one that is overlooked by many so- called experts. Debt forgiveness on second homes, rental property, business property, credit cards or car loans does not qualify for the tax-relief provision of the Debt Relief Act.  The Debt Relief Act of 2007 is set to expire at the end of 2012. Keep in mind, however, that not all states recognize the debt relief act and you should always check with a qualified tax professional prior to agreeing to a short sale.

Tax Consequences Following a Short Sale

At the end of the day, the general rule states that a homeowner will suffer tax consequences following a short sale because the IRS treats the forgiven debt as taxable income. The only way to avoid tax liability following a short sale is to qualify for the principal residence exemption, prove insolvency or file for bankruptcy. Regardless, the important thing to remember is that all of the exemptions require the homeowner to take affirmative action on their subsequent tax returns. Your lender is required to issue a 1099-C Form following a short sale.  It is your responsibility, however, to prove to the IRS that you qualify for a tax exemption by filing Tax Form 982 .

Tax liability is not negotiable, you either qualify or you don’t. You should never, under any circumstances, take a lender’s word that a short sale will not result in tax consequences. In fact, if the lender is agreeing to waive their deficiency rights, they are required to issue 1099-C stating that they canceled your debt. The IRS, in turn, will treat that canceled debt as income unless you prove to them that you qualify for an exception.