Archive for the ‘anti-deficiency’ Tag

Relief if You Paid Tax on a Short-Sale 2011-2013

Originally published in the Cedar Street Times

February 21, 2014

Hopefully we are nearing the end of the short-sale and foreclosure saga that has continued since 2008.  My litmus test based on tax return filings is indicating that things are much closer to being back on track.  Prior to 2008, it was all about 1031 exchanges.  Those turned off like a faucet when the markets crashed, and then short-sales and foreclosures took center stage.  I have seen those tapering off over the last couple years, and I am starting to see 1031 exchanges again.  The cycles continue!

But before we leave short-sales and foreclosures in the dust, there is a possible silver-lining handed down by the IRS and FTB in the last few months.  Taxpayers that generated income tax as a result of a short-sale in California on their principal residence, retroactive to January 1, 2011, may be entitled to a refund.

California Code of Civil Procedure Section 580b has been dubbed California’s “anti-deficiency laws” for years.  It had a positive effect on homeowners because it basically said if you had never refinanced your home and you lost it in a short-sale or foreclosure that you could not be pursued for the balance you still owed (the deficiency), and the remaining debt would not be taxable income to you because the debt was considered nonrecourse debt.

This, however, left many people out in the cold that had refinanced.  Suddenly, it was a different ball game if you had done a refinance (and who didn’t during the run of good years up through 2007!?), and the debts were then allowed by lenders to be treated as recourse debts and they could pursue your personal assets.  Alternatively they could cancel the debt if it was not worth pursuing, leaving you with taxable income for the amount cancelled.

Congress stepped in (and California generally conformed) during the housing crisis and enacted favorable legislation which said you could exclude cancellation of debt income generated by your personal residence.  The catch, however, was that the debt had to be “qualified debt.”  In short, if you lived off the equity in your house by refinancing to pull cash out and did anything with it other than improve the property, then you were not eligible for the exclusion on that portion and would still have to pay tax.

Then, a few years ago, California passed Senate bills 931 and 458 which were codified into law as California Code of Civil Procedure Section 580e as of January 1, 2011.  This resulted because some unscrupulous lenders were entering into short-sale agreements to allow sellers to go through with the sale of their property for less than the amount owed to the bank, but then still pursuing the seller for the remaining debt after the fact (often a big surprise to the seller).  California’s enactment of this law was good news for homeowners because it basically said, even if you had refinanced, but had entered into a short-sale agreement with a lender, then you could not be pursued for the remaining balance owed and that lenders would basically have to cancel the debt.  Of course, cancelling the debt could mean tax was owed, but that was still better than being pursued for the remaining balance!

Finally, in November 2013 a letter from the Office of the Chief Counsel at the IRS written to Senator Barbara Boxer, due to an inquiry from her, stated that the IRS would treat any debt pursuant to California’s 580e as nonrecourse debt!  The Chief Counsel’s office at California’s Franchise Tax Board followed up with their own letter a month later saying they will conform to the IRS interpretation.

This means that anyone who filed a tax return in 2011 or 2012, or even this year, and reported cancellation of debt income related to the short sale of a principal residence, should consider filing an amendment for a possible refund.  It is still possible to have income tax, primarily if you did not live in the house for two of the last five years prior to your short-sale.  The reason is that when a home is disposed of with nonrecourse debt, the total amount of debt outstanding at the time of the short-sale becomes the sales price of the home.  You then subtract your cost basis, and the difference is your gain on sale.  However, if you lived in the home for two of the last five years, then you get a $250,000 gain exclusion for filing as a single status, and $500,000 gain exclusion if married filing jointly, pursuant to IRC Section 121.

You need to act on this during the next year if your short sale was in 2011 as the statute of limitations expires three years after filing.

Prior articles are republished on my website at www.tlongcpa.com/blog.

IRS Circular 230 Notice: To the extent this article concerns tax matters, it is not intended to be used and cannot be used by a taxpayer for the purpose of avoiding penalties that may be imposed by law.

Travis H. Long, CPA is located at 706-B Forest Avenue, PG, 93950 and focuses on trust, estate, individual, and business taxation. He can be reached at 831-333-1041.

Short-Sale: Effects of CA Senate Bills 931 and 458

Originally published in the Pacific Grove Hometown Bulletin

March 21, 2012

This past summer I wrote a series of six articles on short-sales and foreclosures.  I am still receiving calls/e-mails from people all over California that have seen the articles republished on my website.  One caller, a bankruptcy attorney from the Sacramento area, thought that an article addressing California Senate Bills (SB) 931, effective January 2011, and SB 458, effective July 2011, would be helpful.

Prior to these bills, there were cases where a lender would agree to a short-sale and the homeowner would give the home back thinking the remaining recourse debt was cancelled.  Later, they would find the lender was still pursuing them for the deficiency and that the papers they signed did not actually cancel the remaining debt.  SB 931 partly addressed this by not allowing the primary lender to pursue you for the deficiency once they agreed to a short-sale.

The problem then arose that junior lien holders such as a second loan or HELOC would continue to pursue the owner for the deficiency on their loan because the bill did not require them to cancel their remaining debt.  Hence the passage of SB 458 which does not allow them to pursue the deficiency either.  These bills have now both been codified into law in California Code of Civil Procedure Section 580e.

It is clearly good news that you will not be pursued for the debt, but you will still have a wrestling match with the taxing authorities.  The new law requires the lenders to accept the settled amount as payment in full and to fully discharge the remaining amount of indebtedness.  Since the lender will be getting a tax deduction for your bad debt, you will be getting a 1099-C and will have taxable income unless you can exclude a portion or all of the debt under the provisions in Internal Revenue Code Section 108 and related Treasury Regulations.

The new law makes junior lien holders less willing to accept a short-sale, since they are often giving up their right of pursuit and get very little out of the deal.  Kristin DeMaria, a short-sale attorney with Mallery & DeMaria PC in Monterey said, “Under this new law, the junior lien holders can no longer ask the sellers for money, but they can say no to the short-sale.  The sellers, however, can voluntarily offer money and may want to do so to avoid pursuit for the full deficiency after a foreclosure on a recourse second loan.”

For tax purposes, it is highly important that you file a timely tax return with the correct forms, statements and calculations, otherwise you will unknowingly waive your right to any possible discharge of cancelled debt to which you may be entitled.  Having an attorney and a CPA that specialize in the respective negotiation and tax issues is key to navigating these waters successfully.

Prior articles are republished on my website at www.tlongcpa.com/blog.

IRS Circular 230 Notice: To the extent this article concerns tax matters, it is not intended to be used and cannot be used by a taxpayer for the purpose of avoiding penalties that may be imposed by law.

Travis H. Long, CPA is located at 706-B Forest Avenue, PG, 93950 and focuses on trust, estate, individual, and business taxation. He can be reached at 831-333-1041.

Foreclosures and Short-Sales – Part III – Recourse and Nonrecourse Debt

Originally published in the Pacific Grove Hometown Bulletin

July 20, 2011

The last two issues I went over the basic concepts of foreclosures, short-sales, and an overview of excluding the related income and what you give up in return. If you missed these articles they are re-published on my website at www.tlongcpa.com/blog.  This issue I was intending to discuss the exclusion available to people losing their principal residence, but I am going to bump that to the next issue in order to cover one other fundamental concept – recourse and nonrecourse debt.

Recourse debt means that you are personally liable for the debt and the lender has the right to pursue you for the full balance of what you owe if the home is not enough to satisfy the debt you owe.  Nonrecourse debt means the lender has agreed, in event of default, to take the house as full settlement for the debt, and they cannot pursue you for the amount you are deficient.  This effectively means there is no debt for them to cancel, which means you can have no taxable income from cancelled debt.  Clearly, you hope your debt is nonrecourse!  How do you know?

Actually, if you have never refinanced your property, it is almost certainly nonrecourse.  Hooray!  This is due to the California anti-deficiency laws in California Code of Civil Procedures Section 580(b) which essentially makes it illegal for lenders to pursue borrowers for a deficiency on original purchase loans.  Unfortunately these same provisions do not apply if you refinanced, and you will almost always find those loans to be recourse. Un-hooray.

Even with a recourse loan, it is rare to hear of lenders pursuing the deficiency because they do not find it particularly cost effective (think legal fees) or good press to sue someone who just lost a home and has a family to support with no job.  It is often simpler for the lender to cancel the debt, take a loss, and write-it off as a bad debt on their tax returns.

There are two tax documents you may receive in the process of losing a property through foreclosure or short-sale.  A 1099-A is a tax notification that you have given up or “A”bandoned the property. The other document is a 1099-C which should be issued if the lender “C”ancels a recourse debt.  Both of these include the lender’s idea of its fair market value and if you are personally liable.  Both are notoriously incorrect assuming you receive them at all.  The 1099-C also includes the amount of debt you owed when cancelled.   A savvy tax professional will recognize these issues can affect your taxes and will help you take appropriate action.  If you have a foreclosure or short-sale looming, get help early.

IRS Circular 230 Notice: To the extent this article concerns tax matters, it is not intended to be used and cannot be used by a taxpayer for the purpose of avoiding penalties that may be imposed by law.

Travis H. Long, CPA is located at 706-B Forest Avenue, Pacific Grove, CA, 93950.  He can be reached at 831-333-1041.