Tag Archives: taxpayers

Tax Time: Is a Short Sale Covered?

Considering selling your home as a short sale or have you started the process? You will want to know the consequences regarding the amount forgiven by your lender(s). Federal law has extended the forgiveness of tax liability; however, as of this writing, California tax law extension is pending. For those of you outside the state of California, it is imperative you contact your local experts regarding the short sale of houses and debt forgiveness.

With real estate values on the rise, you’re probably thinking you will be okay and your home will have equity shortly. Not so fast! I suggest you have your specific situation evaluated by a qualified short sale agent expert to calculate your home and all the trends for your area.

As always, I recommend seeking out a qualified CPA accountant familiar with these laws. For any further questions or help regarding this issue, feel free to contact me.

short saleTaxation of Short Sales

What are the tax implications of a short sale?

A. Cancellation of Debt (COD) Income

A short sale, where the lender agrees to reduce some or all of the outstanding debt, may give rise to forgiveness of debt income (also called cancellation of debt” or COD income). The amount of the debt that the lender agrees to write off is treated as “ordinary income” (as opposed to capital gains income, which is taxed at a lower rate). Even though the lender may be taking this action to facilitate the sale by the owner who is under a notice of default and facing a foreclosure, the agreement between the owner and the lender is considered voluntary and the amount of the loan written off by the lender is treated as forgiveness of debt (cancellation of debt – COD). The taxpayer will generally receive a 1099 tax form from the lender in the amount of the cancellation of debt.

This forgiveness or cancellation of debt which is treated as “ordinary income” under certain circumstances may or may not be subject to taxation.

Federal Mortgage Forgiveness Debt Relief

Under the Mortgage Forgiveness Debt Relief Act of 2007 (H.R. 3648) signed by President Bush on December 20, 2007, Internal Revenue Code §108(a)(1)(E) was added and provides that a taxpayer will not be taxed upon cancellation of debt income if the following conditions are met:

  • The property sold in the short sale is the taxpayer’s principal residence, as that term is used in IRC §121.
  • The cancellation of debt is Qualified Principal Residence Indebtedness** under IRC Section 163(h)(3)(B).
  • The indebtedness is discharged after January 1, 2007 and before January 1, 2014. (The end date was increased by three years from 2010 to 2013 pursuant to H.R. 1424, the Emergency Economic Stabilization Act of 2008 and extended to 2014 by H.R. 8, American Taxpayer Relief Act of 2012 signed into law January 2, 2013 by President Obama).

**Qualified Principal Residence Indebtedness is a loan secured by the residence used to acquire, construct or substantially improve the residence. The income relief provided is capped at $1,000,000 in the case of a married person filing a separate return and $2,000,000 for all others.

Any reduction of indebtedness excluded by IRC §108(a)(1)(E) will be applied to reduce the basis of the taxpayer’s principal residence, but not below zero. This could result in a higher amount of capital gains tax owed by the taxpayer.

California Mortgage Debt Forgiveness Relief

California law, SB 401, conforms California Revenue and Tax Code Section 17144.5 to federal law, but with the following changes:

(1) The maximum amount of qualified principal residence indebtedness is $800,000 for married couples filing jointly, registered domestic partners filing jointly, single persons, head of household, widow/widower; and $400,000 for married couples or registered domestic partners filing separately; and

(2) The maximum amount of debt relief income that can be forgiven is $500,000 for married couples filing jointly, registered domestic partners filing jointly, single persons, head of household, widow/widower; and $250,000 for married couples or registered domestic partners filing separately; and

(3) California’s debt relief statute applies to property sold on or after Jan. 1, 2009 and before Jan. 1, 2013.

California has not currently passed a law which extends the California debt relief statute to bring it into conformity with the federal law which extended the federal debt relief statute to January 1, 2014 (see above). C.A.R. has sponsored SB 30 (Calderon, D-Montebello) to extend California’s debt relief protections which are currently pending. The proposed law would be effective retroactive to January 1, 2013. Information on the status of the bill can be found at www.leginfo.ca.gov.

A Happy New Year With a Few Twists

mortgage debt forgivenessThe HOT topic for real estate that everyone was talking about coming up to the new year is official, but with an asterisk regarding the extensions of the Mortgage Forgiveness Debt Relief Act and American Taxpayer Relief Act. This is a little lengthy article, but worth your extra 15 minutes to digest. While federal government has extended the tax law, California to this date has not extended their tax law, but more importantly the Mortgage Debt Forgiveness has been definitely extended. What does all this mean to you and your situation, whether owner-occupied or an investment property that is upside down and you’re wanting an answer to what you have to do, CALL ME for help. Letting a property go to foreclosure or doing a Deed in Lieu could put you in a liability situation for all the debt of a Trust Deed. I work with CPAs and attorneys that can help. After over 20 years of short sales, hundreds closed, you owe it to yourself to only talk to the BEST!  CALL NOW! JOHN A SILVA — 619-890-3648. MAKE IT YOUR BEST YEAR!

III. Extension of Mortgage Cancellation of Debt Relief

Q 4. What is mortgage cancellation of debt relief?

A. As a result of a foreclosure on a recourse loan, a short sale or a deed in lieu of foreclosure, a lender may cancel, reduce or forgive the debt that the borrower owes on the loan. The IRS and the California Franchise Tax Board consider this cancelled or forgiven debt as income to the borrower. As a result, the forgiveness or cancellation of the whole or a portion of the loan balance, often termed “cancellation of debt income,” may result in a tax liability.

The cancellation of debt income is generally treated as “ordinary income,” as opposed to capital gains income which is taxed at a lower rate, and the taxpayer will typically receive a 1099 tax form from the lender in the amount of the cancellation of debt.

Under the tax law there exist various situations where the cancellation of debt income is not taxable including bankruptcy, insolvency and when there is a foreclosure on a non-recourse loan. However, for most homeowners involved in a short sale, foreclosure or deed in lieu of foreclosure, the tax relief provided by the Mortgage Forgiveness Debt Relief Act of 2007 (H.R. 3648) signed by President Bush on December 20, 2007 and subsequently extended by the Emergency Economic Stabilization Act of 2008, provides the most important protection against having to pay tax on the cancellation of debt income.

As a result of the Mortgage Forgiveness Debt Relief Act of 2007, Internal Revenue Code §108(a)(1) (E) was added and provides that a taxpayer will not be taxed upon cancellation of debt income if the following conditions are met:

The property sold in the short sale is the taxpayer’s principal residence, as that term is used in IRC §121.

The cancellation of debt is Qualified Principal Residence Indebtedness under IRC Section 163(h)(3)(B). Qualified Principal Residence Indebtedness is a loan secured by the residence used to acquire, construct or substantially improve the residence. The income relief provided is capped at $1,000,000 in the case of a married person filing a separate return and $2,000,000 for all others. Any reduction of indebtedness excluded by IRC §108(a)(1)(E) will be applied to reduce the basis of the taxpayer’s principal residence, but not below zero. This could result in a higher amount of capital gains tax owed by the taxpayer. Also the cancellation of debt relief provided by the law, therefore, does not apply to any portion taken as “cash out” and not used to substantially improve the residence.

Q 5. How does the American Taxpayer Relief Act affect the mortgage cancellation of debt relief?

A. The original law applied to indebtedness discharged before January 1, 2010. That end date was extended by three years from 2010 to 2013 pursuant to H.R. 1424, the Emergency Economic Stabilization Act of 2008. The new law extends the date one year further to any indebtedness discharged prior to January 1, 2014.

Q 6. Does the federal law apply to potential cancellation of debt income under California tax law?

A. No. California has its own cancellation of debt relief law which has been codified as California Revenue and Tax Code Section 17144.5 which is similar to the federal law but with some significant differences (see next question). That law has expired. However, C.A.R. has sponsored Senate Bill 30 (Calderon, D- Montebello) to extend California’s debt relief protections which is currently pending. The proposed law would be effective retroactive to January 1, 2013. Information on the status of the bill can be found at www.leginfo.ca.gov.

Q 7. What are some of the differences between the state and federal law on cancellation of debt on qualified principal residences?

A. California law has different limits for maximum indebtedness and the amount of cancellation of debt income that can be forgiven which are detailed below:

The maximum amount of qualified principal residence indebtedness is $800,000 for married couples filing jointly, registered domestic partners filing jointly, single persons, head of household, or widow/widower; and $400,000 for married couples or registered domestic partners filing separately;

The maximum amount of debt relief income that can be forgiven is $500,000 for married couples filing jointly, registered domestic partners filing jointly, single persons, head of household, or widow/widower; and $250,000 for married couples or registered domestic partners filing separately.

This is an excerpt from California Association of Realtors Legal — Part 2 coming next week will be on Taxation of Foreclosures and Short Sale.

NEW Government Ruling Devastating

Fannie, Freddie: the two government entities leader or housing regulator Edward DeMarco said this last Tuesday there will be no benefit to principle reductions of troubled borrowers who are upside down and has ordered all firms or institutions to not allow any help that is provided in the guidelines of the HAMP (Home Affordable Modification Program) and HARP (Home Affordable Refinance Program). He stated: “we concluded that the potential benefit was too small and uncertain, relative to the known and unknown costs and risks”. THIS IS DEVASTATING!!!

Treasury Secretary, Timothy Geithner noted that in the agency’s own analysis, that Fannie  and Freddie could save $3.7 billion by participating in the administration’s housing programs (HAMP & HARP), the taxpayers would save $1 billion. My commentary is that the institutions once again are controlling this country and not the government. The Obama administration, lawmakers on Capitol Hill, and housing advocates argue that principle reduction is an essential tool to help the 5 year crisis that is still going strong due to millions or about a quarter of the nation’s homeowners are under water, representing excessive mortgage debt of about $700billion!! This decision could burst the bubble that was going down in size due to the workout programs in place that have temporarily bandaged the real estate market, but now with no real help in the near future, the average homeowner who is on the fence will bail or walk away from their home. Coupled with the fact that many state laws have provisions protecting homeowners through the end of this year, I expect an onslaught of upside down homeowners to short sale their homes to take advantage of salvaging incentives currently being offered by most banks.

DeMarco, in his statement noted that only a small percentage of homeowners would strategically default on their mortgage, while most advocates would encourage it, so the savings would literally disappear for the agencies and the taxpayer. I say this is Chicken Little-type thinking and he is playing this game to not allow further losses to the institutions, who I believe are running the show!! Further, he also stated that the institutions investors would be spooked over this reduction program causing an increase in mortgage costs in the future. Another statement that shows the banks rule!!

In conclusion, the gains that have been made in the current real estate market are clearly at risk now, and will no doubt cause an increase of activity in sales and foreclosures in the near future, resulting in values stagnating, to possible reductions more likely. You can view more on this recent development here: http://www.fhfa.gov/webfiles/24113/pfstatement73112.pdf

Your comments are appreciated. What are your thoughts on this recent real estate news?

California targets property-tax payers

Beginning with the 2012 tax bill (due in April 2013), the state Franchise Tax Board will require property owners to break down their property taxes into deductible and non-deductible portions.

As many as 5 million California property-tax payers who have been taking the entire amount they pay off their state income taxes could see a major cut in their deductions when they file next year.

Beginning with the 2012 tax bill (the one due in April 2013), the state Franchise Tax Board will require property owners to break down their property taxes into deductible and non-deductible portions.

That means property owners who have been deducting their Mello-Roos fees — often running into thousands of dollars — will no longer be able to deduct those or any other special assessments like vector control or mosquito abatement.

In Orange County, 181,550 of the county’s approximately 900,000 parcels were subject to Mello-Roos in the 2011-2012 tax year, according to the auditor-controller’s office.  They were billed a total of $207.8 million.

The difference between deductible and non-deductible property taxes is not a new rule. Mello-Roos fees, which pay for roads, schools, fire stations and other public facilities in new developments, have not been deductible from state income taxes since the legislature authorized the special assessments 30 years ago.

Many property owners, however, routinely deduct the entire amount of their property tax bill from their state income taxes instead of only the parts that legally are deductible. Others just use the amount on the Form 1098 that their mortgage holder paid to the county tax collector on their behalf.

Until now the Franchise Tax Board didn’t to go after them. A new computer system being installed this year, however, will allow the agency to distinguish the portions of property tax bills that are deductible and non-deductible, said Daniel Tahara, a FTB spokesman.

He said the new scrutiny of property taxes is not due to any political pressure to increase tax revenues to close the state’s gaping budget deficit.

“Every year we look at areas of non-compliance and this happened to be one that came up,” he said.

Tahara said the agency is announcing the new rules now so taxpayers can make any adjustments this year for their 2012 state tax filing next year.

He said the FTB had planned to impose the new rules on 2011 tax filings due this April, but held off after getting “negative feedback” from tax preparers and the public.

Pat Yeckel, president of Canyon Tax and Bookkeeping Service Inc. in Rancho Santa Margarita, said that she and other tax preparers have known Mello-Roos and other fees weren’t deductible, but that clients usually don’t have the breakdown of their property tax bill.

It will be a particularly big deal for property owners in South County and other new developments where many of the public amenities were paid through Mello-Roos districts.

“This is going to be a big pain,” Yeckel said, noting that just getting the property tax paperwork can be a hassle.

Taxpayers will need a copy of their tax bills whether or not they pay their own property taxes or have them paid through their mortgage payment because they will need their parcel number in addition to the deductible/non-deductible breakdown for their 2012 state income tax filing.

For a full explanation of how the new deductible rules will work, CLICK HERE.

This article and information is from the Orange County Register: “State targets property-tax payers.”

Watch Out for This Law Expiring: the Mortgage Debt Forgiveness Relief Act

If you know someone who is upside down or owes more on their property than it is worth of residential real estate, NOW is the time to really take a close, hard look at the law that has saved millions of homeowners over the past several years: the Mortgage Debt Forgiveness Relief Act that expires on January 1, 2013. Federal and California state guidelines are listed below.

For anyone you know in a modification, I strongly suggest you have your agreement reviewed ASAP with a real estate attorney if you haven’t already.  For a referral, I can help; I keep in contact with several top-quality attorneys and accountants.  The modification agreement in place may circumvent the Mortgage Debt Forgiveness Relief Act–causing liability for the difference of the home loan on your property of what it is worth, whether you let your home go to foreclosure, or sell the property as a short sale now or after this law expires this year. 

mortgage debt forgiveness relief act

Mortgage Debt Forgiveness Relief act

Please do yourself, friends, and family a favor–YOU will always be remembered as the knight in shining armor to them if you help them out.  And I can always help to answer any questions about this Mortgage Debt Forgiveness Relief Act and the effect it will have on you and them once it expires.  Since short sales can take several months to process in some cases, immediate action is necessary, and with that a financial windfall is possible–even if there is no equity in your property.  Call me now for details–(619) 890-3648!

Below you will find some of the details pertinent to the Federal and California government laws, but there are others as well (not noted here) that will also be expiring.  I am here to help!

New law–Taxable years 2009 through 2012

California law conforms, with modifications, to federal mortgage forgiveness debt relief for discharges that occurred in the tax years of 2007 through December 31, 2012.  The amount of qualifying indebtedness is less than the federal amount, and California imposes a state-only limitation on the total amount of relief excluded from the gross income.  The following summarizes the differences between the Federal and California provisions.

Federal provision applies to discharges occurring in 2007 through the end of 2012, and:

  • Limits the amount of qualified principal residence indebtedness to $2,000,000 for taxpayers who file as married filing jointly, single, head of household, or widow/widower, and to $1,000,000 for taxpayers who file as married filing separately.
  • Does not limit the debt relief amount; it only limits the indebtedness amount used to calculate the debt relief amount.
  • See the Federal law: Mortgage Forgiveness Debt Relief Act and Debt Cancellation for more information.

California provision applies to discharges that occurred in 2007 through 2012, and:

Taxable years 2009 through 2012
  • Limits the amount of qualified principal residence indebtedness to $800,000 for taxpayers who file as married/registered domestic partners (RDP) filing jointly, single, head of household, or widow/widower, and to $400,000 for taxpayers who file as married/RDP filing separately.
  • Limits debt relief to $500,000 for taxpayers who file as married/RDP filing jointly, single, head of household, or widow/widower, and to $250,000 for taxpayers who file as married/RDP filing separately.
Taxable years 2007 and 2008
  • Limited the amount of qualified principal residence indebtness to $800,000 for taxpayers who file as married/(RDP) filing jointly, single, head of household, or widow/widower, and to $400,000 for taxpayers who file as married/RDP filing separately.
  • Limited debt relief to $250,000 for taxpayers who file as married/RDP filing jointly, single, head of household, or widow/widower, ad to $125,000 for taxpayers who file as married/RDP filing separately.

You can read more about the Mortgage Debt Forgiveness Relief Act and Debt Cancellation via the IRS website

If you’re confused still about this law, or need help getting the ball rolling NOW–please give me, John A. Silva, a call.  I would love to help sort this all out for you and save you headaches in the future–call me! (619) 890-3648

Mortgage aid open to more Calif. borrowers

A state-run program that helps homeowners struggling to pay their mortgages now has broader eligibility guidelines, opening up help to borrowers who did “cash-out” refinances and own multiple properties, said California Housing Finance Agency officials on Monday.

The mortgage-aid effort, called Keep Your Home California, so far has helped close to 8,000 low- and moderate-income households that are behind on loan payments or close to default, according to agency leaders.

Keep Your Home California“This expanded eligibility will allow more families to qualify and receive greater assistance,” said California Housing Finance Agency Executive Director Claudia Cappio, in a statement. “We are continuously evaluating our experience so far and making adjustments like these based on the initial results of the Keep Your Home California program.”

Keep Your Home California has four parts that include: mortgage help for the unemployed, mortgage aid for homeowners with documented financial hardship, relocation help for those in the midst of a short sale or deed-in-lieu of foreclosure, and reduction of principal. The programs, paid for by the U.S. Treasury Department’s Hardest Hit Fund, is costing taxpayers $2 billion.

Monday’s announced changes include:

–Allowing homeowners who completed “cash-out” mortgage refinancing to take part in the four programs. Such borrowers were excluded before.

–Allowing borrowers who own more than one property to apply. Program officials said this will be particularly helpful to those who co-signed on properties for family members.

–Offering mortgage aid to unemployed borrowers for nine months, instead of six. Such homeowners can get up to $3,000 a month. To qualify, you must receive unemployment benefits.

–Reinstating up to $20,000 in past-due mortgage payments instead of the previous $15,000 cap.

To qualify, your mortgage servicer must take part in Keep Your Home California. Click here for the list of servicers.

Info: Call 888-954-KEEP(5337) between 7 a.m. and 7 p.m. Monday through Friday, and 9 a.m. to 3 p.m. on Saturdays. Visit: www.KeepYourHomeCalifornia.org or www.ConservaTuCasaCalifornia.org.

This article is from SignOnSanDiego: “Mortgage Aid Open to More Calif. Borrowers.”