Are taxes due on your foreclosure?

Taxing your loss

Nobody has to pay taxes on a loss, no matter the source.  But you may have to pay taxes on a partially  forgiven mortgage loan.

The rule: While borrowed money isn’t regarded by Uncle Sam as income, if you  don’t pay it all back, the unpaid balance is taxed just like income.

Example: I loan you $10,000 and you pay back only $4,000. The day I give  up trying to collect and write off the $6,000, as far as the IRS is concerned, I  lost $6,000 and you earned it. It’s the same as if you’d won $6,000 in a  contest, or at a casino. In short, you’re $6,000 richer, and Uncle Sam wants his  cut.

If you owe $100,000 on a mortgage, give the house back in a foreclosure and  the bank recoups only $40,000, the bank takes a $60,000 deductible  loss. As far as the IRS is concerned, that’s $60,000 you earned.

So whenever you pay back less than you borrow, if the forgiven debt exceeds  $600, it’s possible you’ll get a 1099-C form in the mail the following  January.

If you find yourself facing this misery, at least you’ll have plenty of  company. Millions  of 1099-Cs are issued annually.

Is it fair?

At first blush, this may seem the epitome of kicking someone when they’re  down. After all, you already lost a house, along with the down payment and any  improvements. Going after you for taxes on the forgiven portion of the debt  smacks of emptying a carton of Morton’s into the wound.

But there’s logic behind this seemingly cruel rule. If no tax were required  for forgiven debt, it would be easy to cheat the government. For example,  suppose I took a $100,000-per-year job, but asked to be paid in the form of a  forgiven loan. Since loans aren’t taxable income, without this rule, I’d be  earning $100,000 tax-free.

When forgiven debt isn’t taxable

Fortunately for millions of hapless homeowners, since 2007,  forgiven foreclosure-related mortgage debt is rarely taxable.

The 2007  Mortgage Forgiveness Debt Relief Act, extended through the end of 2013,  specifically excludes forgiven mortgage debt from income. At least, as long as  it related to a primary residence, was less than $2 million for joint filers,  and, as the IRS puts it, was “directly related to a decline in the home’s value  or the taxpayer’s financial condition.”

Here are some other situations where forgiven debt isn’t taxable:

  • If the debt was discharged in bankruptcy.
  • If the debt was forgiven when you were insolvent. This  is the strategy used by many with canceled or settled credit card debts. You’re  insolvent when what you owe exceeds what you own; in other words, your debts  exceed your assets. This doesn’t mean, however, you don’t report it. The  forgiveness is nontaxable only to the extent of your insolvency, and you’ll have  to fill out a worksheet and file an IRS form.
  • Non-recourse loans. When the lender’s only recourse is  to repossess the financed property, that’s a non-recourse loan. In other words,  the lender can’t come after you personally. While some real estate fits  this bill, car loans almost never do.
  • Some student loans can be canceled in exchange for  entering certain professions or performing public service. If they meet the  criteria, cancellation of these debts is nontaxable.

Note that qualifying to have your forgiven loan rendered nontaxable doesn’t  make it automatic. If you get a 1099-C, so did the IRS. So if you’re entitled to  an exemption, you’ll need to include the amount on the 1099-C in your gross  income, then file a Form  982 with your tax return to show why it’s not taxable.

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Jeff Corporon, Owner

Attorney/Realtor/CDPE

Corporon & Associates LLC

Attorneys at Law

Brix Real Estate LLC

1315 South Clayton Street #200

Denver, Colorado 80210

Fax: 303-496-0534

Cell: 303-475-1276

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