Cancellation of Debt A Special Focus on Home Foreclosures

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1 Cancellation of Debt A Special Focus on Home Foreclosures Mary M. Gillum, Coordinator and Attorney Tennessee Taxpayer Project Legal Aid Society of Middle Tennessee and the Cumberlands (Graphics from Microsoft clipart and Google images) 09/25/2008

2 Income Gross income includes all income from whatever source derived, unless specifically exempted in the Internal Revenue Code. 26 U.S.C. 61(a). Gross income includes cancellation of debt income. 26 U.S.C. 61(a)(12). The justification for taxing cancellation of debt income is that the elimination of a liability makes available to the taxpayer assets previously offset to pay liabilities. United States v. Kirby Lumber Co., 52 S. Ct. 4 (1931). Cancellation of debt is analogous to an accession to wealth. Forgiveness of a debt or other obligations places a taxpayer in a better position equivalent to an accession to wealth.

3 Cancellation of Debt Cancellation of debt is reported by the creditor to the IRS and to the taxpayer through the issuance of IRS Form 1099 C. Taxpayers who have lost their home in a foreclosure often do not get the form 1099 C from the creditor and learn about it in a deficiency proceeding.

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5 Cancellation of Debt It is not uncommon for the creditor to list the entire amount of the debt in box 2 amount of cancelled debt and list the fair market value of repossessed property in box 7. Box 2 should show the original unpaid debt minus the fair market value of the repossession as cancelled debt. 1. Start by asking for a corrected 1099 C from the creditor. 2. If the creditor does not correct the 1099 C, get a statement from the bank showing the mortgage balance immediately before the foreclosure.

6 Practice Tip Sometimes creditors erroneously issue an IRS Form 1099 A titled Acquisition or Abandonment of Secured Property instead of IRS Form 1099 C. It is also common for the IRS to treat a 1099 A like a 1099 C. Form 1099 A is only for informational purposes. Where a creditor had a security interest in property, 1099 A is used to report an acquired possession of property for full or partial satisfaction of a debt. Some advocates choose to submit proof to the IRS that the taxpayer can exclude cancellation of debt from income and treat the 1099 C like a 1099 A.

7 Exclusions from Gross Income For this presentation, we will focus on three remedies. 1.Mortgage Forgiveness Debt Relief Act of Internal Revenue Code Section 108 s bankruptcy exception. 3.Internal Revenue Code Section 108 s Insolvency exception.

8 Mortgage Forgiveness Debt Relief Act of 2007 On December 20, 2007, Congress passed a new law aimed at excluding cancellation of debt income from gross (taxable) income if the cancellation of debt was related to qualified principal residence. indebtedness. Mortgage Forgiveness Debt Relief Act of 2007, P.L , 2007 HR The new law is known as the Mortgage Forgiveness Debt Relief Act of It is codified in Internal Revenue Code Section 108(a)(1)(E).

9 What is Qualified Principal Residence Indebtedness? Qualified principal residence indebtedness is defined as acquisition indebtedness. 26 U.S.C. 108(h)(2); 26 U.S.C. 163(h)(3)(B). According to IRC 163(h)(3)(B) and IRS Publication 4681, acquisition indebtedness is any debt incurred in: Acquiring; Constructing; or Substantially improving a principal residence, AND Secured by the principal residence. The cancellation of debt must be related to either 1. A decline in the residence s value, or 2. A decline in the taxpayer s financial situation.

10 Qualified Principal Residence Indebtedness Further Defined Refinancing. Qualified principal residence indebtedness also includes any debt secured by the residence from refinancing of debt to acquire, construct or improve the residence but only to the extent that the amount of debt does not exceed the refinanced debt. No home equity loans allowed!

11 Qualified Principal Residence Indebtedness Further Defined Qualified principal residence indebtedness is NOT A reduction in a mortgage loan due to services performed for a lender or Cancellation of a mortgage debt for any factor not directly related to a decline in value of the residence or due to the taxpayer s declining financial position.

12 Ordering Rules Bankruptcy exclusion must be applied first. Insolvency exclusion can be applied last. Taxpayer s choice. If a principal residence includes both acquisition debt and home equity debt, the qualified principal residence exclusion only applies to the extent amount of cancelled debt exceeds the loan amount that is not qualified principal residence indebtedness.

13 Ordering Rules Example. John bought a house for $800,000. When the fair market value increased to $1,000,000, he refinanced for $850,000. At the time he re financed, he owed $740,000. He used the remaining $110,000 to pay off credit card debt. The market declined. The lender allowed John to sell the home for $735,000. It cancelled $115,000 of the debt($850 $735=$115). Only $5,000 qualifies for the principal residence exclusion. ($740 $735). The remaining $110,000 might qualify under other IRC Section 108 exclusions.

14 Ordering Rules The principal residence exclusion takes precedence over the insolvency exclusion unless the taxpayer specifies otherwise. 26 U.S.C. 108(a)(2)(C).

15 What is a Principal Residence? Principal Residence. It is the home where the taxpayer ordinarily lives most of the time. 26 U.S.C. 108(h)(5). It is further defined in Internal Revenue Code Section 121. You can only have one principal residence for purposes of the qualified principal residence exclusion.

16 Exclusion Limit There is a $2,000,000 limit ($1,000,000 if married filing separately) on the amount of debt that qualifies under the principal residence indebtedness exclusion.

17 Limited Application Period The Mortgage Forgiveness Debt Relief Act of 2007 only applies to discharges made between January 1, 2007, and December 31, Recent legislation extended this law until It must be made on the tax return for the tax year it applies. Must be made on a timely file tax return. If a return is timely filed and no election is made, you can amend within 6 months of the due date and make the election by writing Filed Pursuant to Section Cannot be revoked without IRS consent.

18 Practice Tip Advocates should consider using Internal Revenue Code Section 108 s insolvency exception for any qualified principal residence debt, such as home equity debt, that does not qualify for the principal residence indebtedness exclusion.

19 Reduction of Tax Attributes The amount excluded from gross income for qualified principal residence indebtedness under IRC 108(a)(1)(E) will be used to reduce the basis in the home. 26 U.S.C. 108(h)(1). Basis cannot be reduced below zero.

20 How to Claim Principal Residence Indebtedness Exclusion Complete IRS Form 982. Attach IRS Form 982 to the federal income tax return. Check the box on line 1e of IRS Form 982. On line 2 of Form 982, include the amount of the taxpayer s principal residence indebtedness exclusion. Do not include more than the maximum exclusion amount of $2,000,000 ($1,000,000 if married filing separately). On line 10b enter the smaller of The amount of principal residence indebtedness included on line 2 or The home s basis (cost). Reduce the basis of the home if the taxpayer continues to own the home after the cancellation of debt.

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22 Section 108 s Bankruptcy Exception A taxpayer does not have to include cancellation of debt in gross income if the discharge occurs while the taxpayer is in a title 11 case. 26 U.S.C. 108(a)(1)(A). For purposes of the cancellation of debt exclusion, a Title 11 case is defined as a case under Title 11 of the United States Code (bankruptcy) but only if Taxpayer is under jurisdiction of the bankruptcy court AND Discharge of indebtedness is granted by the Bankruptcy Court or pursuant to a plan approved by the Court. Schachner v. Comm r, U.S.Tax Ct WL , unreported.

23 How to Claim Bankruptcy Exclusion What you do depends on where you are at in the IRS controversy process. However, all steps ultimately include attaching proof of the bankruptcy filing and discharge order. 1. With a timely filed tax return, fill out IRS Form 982. Check box 1a of Form 982. On line 2 of Form 982, include amount of cancelled debt excluded from gross income. On line 10a, include the smaller of The property s basis (cost), or Amount of cancelled debt. Attach proof of bankruptcy filing and discharge order. 2. File an appeal or other correspondence letter with the IRS if the IRS has sent a CP2000 or other under reporter notice. Attach all evidence, including a copy of the bankruptcy petition and discharge order to the IRS.

24 How to Claim Bankruptcy Exclusion 3. Petition the United States Tax Court if the taxpayer has received a Notice of Deficiency. 4. File for audit reconsideration, a late administrative appeal. 5. Petition the Federal District Court if the taxpayer s 90 day period on the Notice of Deficiency has expired.

25 Section 108 s Insolvency Exclusion A taxpayer does not have to include cancellation of debt in gross income if the discharge occurs while the taxpayer is insolvent. 26 U.S.C. 108(a)(1)(B). Insolvency means the excess of liabilities (what taxpayer owes) over fair market value of assets (what taxpayer owns). 26 U.S.C. 108(d)(3). Liability and asset valuations are determined immediately before the cancellation of debt event. Miller v. Comm r, U.S.Tax Ct.2006, 2006 WL , Unreported. Even though taxpayer's Collection Information Statement for Individuals indicated that taxpayer had positive net worth, taxpayer demonstrated that various creditors held judgments against him in amount exceeding his assets, which were entered in the year preceding the debt cancellation. Toberman v. Comm r, C.A , 294 F.3d 985.

26 How to Claim Insolvency Exclusion What you do depends on where you are at in the IRS controversy process. However, all steps ultimately include attaching proof that liabilities exceed assets. 1. With a timely filed tax return, fill out IRS Form 982. Check box 1b of Form 982. On line 2 of Form 982, include amount of cancelled debt excluded from gross income. On line 10a, include the smaller of The property s basis (cost), Amount of cancelled debt, or Amount assets exceed liabilities after discharge. Attach proof that liabilities exceed assets. 2. File an appeal or other correspondence letter with the IRS if the IRS has sent a CP2000 or other under reporter notice. Attach all evidence, including a client affidavit, credit report, proof of liabilities, an assets and liabilities table, etc.

27 How to Claim Insolvency Exclusion 3. Petition the United States Tax Court if the taxpayer has received a Notice of Deficiency. Tabezi v. Comm r., U.S. Tax Ct WL , Unreported. 4. File for audit reconsideration, an administrative late appeal. 5. Petition the Federal District Court if the taxpayer s 90 day period on the Notice of Deficiency has expired.

28 Practice Tip Submit Proof! Generally, these cases can be easily won by attaching A client affidavit listing assets and liabilities. The affidavit should include a statement that liabilities exceed assets, including the amount by which liabilities exceeds assets. A letter listing facts, legal authority and analysis. The letter should include a specific reference to Internal Revenue Code Section 108(a)(1)(B). Some third party document. This can include Credit report listing liabilities before cancellation of debt event and Loans and other notes evidencing liabilities.

29 Practice Tip Insolvency exception is not an election. If you are insolvent, the cancellation of debt can be excluded whether you File IRS Form 982 correctly, File IRS Form 982 incorrectly, or Do not file IRS Form 982 at all!

30 Practice Tip Submit Proof! Taxpayer claiming benefit of insolvency exception to recognition of discharge of indebtedness income must prove: (1) with respect to any obligation claimed to be a liability, that, as of the calculation date, it is more probable than not that he will be called upon to pay that obligation in amount claimed, and (2) that total liabilities so proved exceed fair market value of his assets. Acuncius v. Comm r, U.S.Tax Ct WL 80273, Unreported. Taxpayer was not able show what income he earned from other sources during years at issue, he did not present any documentary evidence to prove his gross receipts from farming, and his testimony regarding his estimated income earned from farming was contradictory and inconsistent. Campbell v. Comm r, U.S.Tax Ct WL , Unreported, affirmed 28 Fed.Appx. 613, 2002 WL

31 Practice Tip The insolvency must exceed the cancellation of debt amount. If the insolvency does not exceed the cancellation of debt amount, only the cancelled debt equal to the insolvency is excluded from gross income. Prepare an income tax return. Even if the client has to include some of the cancelled debt, they may not have a federal income tax liability after applying deductions, exemptions and credits.

32 Resources Internal Revenue Code Section 108. IRS Publication Case law.