Cancellation of Debt

Cancellation of Debt ROBERT E. MCKENZIE Arnstein & Lehr LLP Arnstein & Lehr LLP 1 Debt Cancellation If a debt is canceled or forgiven, other than as a gift or bequest, the debtor generally must include the canceled amount in gross income for tax purposes. Arnstein & Lehr LLP 2 1

Exceptions and Exclusions The cancellation of a student loan for a student required to work for certain employers. The cancellation of debt that would have been deductible if paid. The reduction of a debt by the seller of property if the debt arose from the purchase of the property. The cancellation takes place in a bankruptcy case under the U.S. Bankruptcy Code. Arnstein & Lehr LLP 3 Introduction Consequences to Debtor and Lender Four Scenarios Reduce Debt Modify Debt Convey Property for Debt Bankruptcy Arnstein & Lehr LLP 4 2

Cancellation of Debt Income ("COD") General Rule: Taxed as Ordinary Income What it is: "Freeing Up of Assets ; "Accretion of Wealth What it is Not: Medium of Exchange, Settlement of Disputed Claims, Release of Guaranty Arnstein & Lehr LLP 5 Cancellation of Debt Income ("COD") Trap for Unwary: Modification of Debt Example: Result: Assume $1MM Note bearing interest of 8% is modified to provide for 0% interest (principal remains $1MM); assume that imputed interest equals $50K New issue price equals $950K and debtor recognizes COD of $50K Related Party Acquisition of Debt Arnstein & Lehr LLP 6 3

COD vs. Gain from Sale or Exchange COD: Ordinary Income Exclusions may apply Sale or Exchange (Property Conveyed): 1001 Gain Foreclosure or Deed in Lieu of Foreclosure NotCOD Potential Capital Gain (FMV Exceeds Basis) No Exclusions Arnstein & Lehr LLP 7 Sale or Exchange Non Recourse Debt Sale or Exchange: Debt is amount realized Value irrelevant No COD Arnstein & Lehr LLP 8 4

Sale or Exchange Recourse Debt: Bifurcate FMV of Property Reduces Debt: Sale or Exchange Foreclosure: Bid price equals value (presumption) Deficiency Amount COD if reduced Arnstein & Lehr LLP 9 Example: Debt $1,000,000 FMV $800,000 Basis $700,000 If Debt is Non-recourse: Amount Realized:$1,000,000 Basis: $700,000 Gain: $300,000 Arnstein & Lehr LLP 10 5

Example: If Debt is Recourse, and Discharged: Amount Realized (FMV):$800,000 Basis: $700,000 Gain: $100,000 COD Income: $200,000 Arnstein & Lehr LLP 11 Exclusions The cancellation takes place when you are insolvent (see insolvency exclusion, later), and the amount excluded is not more than the amount by which you are insolvent. The canceled debt is qualified farm debt (debt incurred in operating a farm). The canceled debt is qualified real property business indebtedness (certain debt connected with business real property). The canceled debt is acquisition indebtedness on a principal residence. See Mortgage Forgiveness Debt Relief Act of 2007 (HR 3648). Arnstein & Lehr LLP 12 6

Exceptions to COD (Not Taxable COD) (1) Qualified Real Property Indebtedness Debt to Acquire or Improve Real Estate Secured by Property Used in Trade or Business Reduces Basis of Depreciable Realty Arnstein & Lehr LLP 13 Limits: Exceptions to COD (Not Taxable COD) Only Excess of All Debt on Property Over FMV Example: If total debt secured by property equals $1.4MM and FMV of property equals $1MM, only $400K of COD qualifies for exception Aggregate Basis of All Depreciable Real Estate Not for C Corporations Arnstein & Lehr LLP 14 7

Bankruptcy Cancellation of the debt is granted by the court or occurs as a result of a plan approved by the court. None of the debt canceled in a bankruptcy case is included in taxpayer s gross income in the year canceled. Instead, certain losses, credits, and basis of property must be reduced by the amount of excluded income (but not below zero). These losses, credits, and basis in property are called tax attributes Arnstein & Lehr LLP 15 Exceptions to COD (Not Taxable COD) (2) Bankruptcy No limits Taxpayer (not partnerships) Attribute Reduction Timing: 1 st day of following year Arnstein & Lehr LLP 16 8

Insolvency Exclusion Exclude from your gross income debt canceled when you are insolvent, but only up to the amount by which you are insolvent. However, you must use the amount excluded to reduce certain tax attributes, as explained later under Reduction of Tax Attributes. Arnstein & Lehr LLP 17 Exceptions to COD (Not Taxable COD) (3) Insolvent Taxpayer Limited to Excess of Liabilities over FMV of Assets Example: If all liabilities equal $1.8MM and FMV of all property equals $1MM, only $800K qualifies for exception Attribute Reduction Arnstein & Lehr LLP 18 9

Reduction of Tax Attributes Net operating loss General business credit carryover Minimum tax credit Capital losses Basis Passive activity loss and credit carryovers Foreign tax credit Arnstein & Lehr LLP 19 Amount of Reduction Except for the credit carryovers, reduce the tax attributes listed earlier one dollar for each dollar of canceled debt that is excluded from income. Reduce the credit carryovers by 33-l/3 cents for each dollar of canceled debt that is excluded from income Arnstein & Lehr LLP 20 10

Exceptions to COD (Not Taxable COD) (6) Qualified Farm Indebtedness Lender must be "Qualified": Government or Unrelated Institutional Lenders Debt: directly incurred in farming business 50% or more of taxpayer's gross receipts are from farming Arnstein & Lehr LLP 21 Exceptions to COD (Not Taxable COD) Farming Indebtedness Exclusion Limitation: Cannot exceed sum of "adjusted" tax attributes plus basis of "qualified property" (any business or investment property) Arnstein & Lehr LLP 22 11

Making Elections Form 982, Reduction of Tax Attributes Due to Discharge of Indebtedness Arnstein & Lehr LLP 23 Foreclosure Tax Consequences to Mortgagor Nonvendor Mortgagee Vendor Mortgagee Arnstein & Lehr LLP 24 12

Foreclosure A sale of mortgaged property to a third party pursuant to a foreclosure is treated, for federal income tax purposes, as a sale or exchange of the property. Gain or loss is measured by the difference between the mortgagor's basis in the property and the amount realized. Arnstein & Lehr LLP 25 Nonrecourse & Recourse Debt If the mortgage balance exceeds the sale proceeds and the mortgagor is discharged from liability for the excess under the mortgage, the amount realized is the mortgage balance, and the excess is cancellation of indebtedness income If the mortgage balance exceeds the sale proceeds, but the mortgagor is not discharged from liability for the excess, the amount realized is the amount of the foreclosure sale proceeds. Arnstein & Lehr LLP 26 13

Unpaid Interest and Taxes To the extent that the proceeds of the foreclosure sale, rather than being paid to the mortgagee, are used to discharge interest arrearages and real property taxes of the mortgagor, such items should be deductible to the mortgagor. Arnstein & Lehr LLP 27 Conveyance to Mortgagee The voluntary conveyance of mortgaged property by the mortgagor to a nonvendor mortgagee, or a deed in lieu of foreclosure, which extinguishes the debt, is treated as a taxable sale by the mortgagor. Arnstein & Lehr LLP 28 14

Timing of COD to Debtor Agreement Court Order Statute of Limitations See 1.6050P Modification of Debt Contingent Agreements Conditions Precedent and Conditions Subsequent Arnstein & Lehr LLP 29 Mortgage Relief Act Allows taxpayers to exclude up to $2 million of mortgage debt forgiveness on their principal residence Basis of the taxpayer's principal residence is reduced Any loan is discharged, in whole or in part Indebtedness incurred in the acquisition, construction, or substantial improvement of an individual's principal residence that is secured by the residence Arnstein & Lehr LLP 30 15

Q & A Does the Mortgage Forgiveness Debt Relief Act of 2007 apply to all forgiven or cancelled debts? No, the Act applies only to forgiven or cancelled debt used to buy, build or substantially improve your principal residence, or to refinance debt incurred for those purposes. Arnstein & Lehr LLP 31 Q & A What about refinanced homes? Debt used to refinance your home qualifies for this exclusion, but only up to the extent that the principal balance of the old mortgage, immediately before the refinancing, would have qualified. Arnstein & Lehr LLP 32 16

Q & A If the forgiven debt is excluded from income, do I have to report it on my tax return? Yes. The amount of debt forgiven must be reported on Form 982 and the Form 982 must be attached to your tax return. Arnstein & Lehr LLP 33 Q & A Do I have to complete the entire Form 982? Form 982, Reduction of Tax Attributes Due to Discharge of Indebtedness (and Section 1082 Adjustment), is used for other purposes in addition to reporting the exclusion of forgiveness of qualified principal residence indebtedness. If you are using the form only to report the exclusion of forgiveness of qualified principal residence indebtedness as the result of foreclosure on your principal residence, you only need to complete lines 1e and 2. If you kept ownership of your home and modification of the terms of your mortgage resulted in the forgiveness of qualified principal residence indebtedness, complete lines 1e, 2, and 10b. Attach the Form 982 to your tax return. Arnstein & Lehr LLP 34 17

Q & A How do I know or find out how much was forgiven? Your lender should send a Form 1099-C, Cancellation of Debt, by January 31, 2008. The amount of debt forgiven or cancelled will be shown in box 2. If this debt is all qualified principal residence indebtedness, the amount shown in box 2 will generally be the amount that you enter on lines 2 and 10b, if applicable, on Form 982. Arnstein & Lehr LLP 35 Q & A Can I exclude debt forgiven on my second home, credit card or car loans? Not under this provision. Only cancelled debt used to buy, build or improve your principal residence or refinance debt incurred for those purposes qualifies for this exclusion. Arnstein & Lehr LLP 36 18

Q & A 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. Normally, a taxpayer is not required to include forgiven debts in income to the extent that the taxpayer is insolvent. A taxpayer is insolvent when his or her total liabilities exceed his or her total assets. The forgiven debt may also qualify for exclusion if the debt was discharged in a Title 11 bankruptcy proceeding or if the debt is qualified farm indebtedness or qualified real property business indebtedness. If you believe you qualify for any of these exceptions, see the instructions for Form 982. Arnstein & Lehr LLP 37 2009 Stimulus Act Provides Election for Deferral of COD Applies to debt incurred by a C corporation or any other person in connection with a trade or business COD is deferred for 4 or 5 years; then taxed ratably over 5 years Acceleration of deferred income in certain circumstances Arnstein & Lehr LLP 38 19

2009 Stimulus Act Provides Election for Deferral of COD Election: Entity makes election Consequence: No COD exceptions available Conflicts: Partners having differing tax positions (e.g. insolvent or bankrupt) Arnstein & Lehr LLP 39 20