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Wednesday, November 28, 2012

Tax Exemption for Mortgage Debt Relief is Extended for 2017

   2017 Update-

"On February 9, 2018 the President signed into law a one-year extension of the exclusion. The retroactive extension was buried in the 652 page Bipartisan Budget Act of 2018, Public Law No. 115-123 § 40201....The Act revives the exclusion from taxable income for qualifying principal residence indebtedness discharged before January 1, 2018 and to written discharge agreements executed before January 1, 2018. This will enable individual taxpayers to claim the exclusion for returns they file for their 2017 calendar year income. Given that Congress has rejected prior attempts to make the exclusion permanent, the likelihood of future extensions is doubtful." see full article @ 

  Update for 2014-As of January 1, 2014 the tax relief act was not extended. There is a bill sponsored by two CT congressman to extend pending, but with our gridlocked Congress no guarantee that any extension is forthcoming. There is still a way for many sellers with pending short sales or in need of short sales to avoid negative tax consequences in 2014. If the seller is insolvent at time of sale the forgiven debt will not be considered as income if their liabilities exceed their assets in an amount equal to or in excess of the forgiven amount. IRS Publication 4681 provides examples of the application of this exception and a worksheet to calculate personal assets and liabilities to use for individuals tax returns. Although unusual some bankrupt homeowners seek to short sell after receiving a bankruptcy discharge. In these situations the mortgage debt  discharged by the bankruptcy does not constitute taxable income and there is no debt cancelled by the bank's acceptance of a short sale just the release of the mortgage securing the home.
      In 2007 to avoid hitting distressed homeowners with the double whammy of foreclosure and tax debt from uncollected foreclosure deficiencies The Mortgage Forgiveness Debt Relief Act was enacted. This Act is set to expire on December 31, 2012 and based on the current political climate in Congress things do not look good for the extension of this Act. This Act applies not only to foreclosure deficiencies forgiven, but to short sales, deeds in lieu of foreclosure and mortgage modifications with principal forgiveness.  It has allowed underwater financially strapped homeowners to take advantage of government and lender mortgage relief efforts without the consequence of receiving a 1099 with phantom income and related high tax liability. Short sales have become an attractive option for many homeowners and lenders since the homeowner is relieved of the underwater property and mortgage debt and the lender receives an acceptable payment from the sale without having to incur the costs and delays involved with the foreclosure, maintenance and sale of the property. Short sales have also been fueled by the National Mortgage Settlement stemming from the litigation brought by the State Attorney Generals against mortgage lenders. This Settlement has also spawned mortgage modifications with actual principal forgiveness which I have personally seen increase this year. Before this settlement act my clients that received debt forgiveness were in contested foreclosure cases that I had filed special defenses and counterclaims. The impact of the loss of the tax forgiveness in 2012 will take the teeth out of this settlement leaving distressed homeowners without the relief it was intended to provide them. They will not benefit from a short sale or mortgage modification with forgiven debt if they are faced with a large tax liability.  Unfortunately these tax liabilities will be large since many of these mortgages have been in default for years combined with properties that are significantly underwater so phantom income in excess of $100,000.00 or more will not be an unusual consequence. Also since the IRS is provided with such extraordinary collection powers and income tax debt is treated as a priority debt in bankruptcy there is no debt more frightening to any U.S. citizen than delinquent income tax debt.
What the loss of this tax relief will mean is that more distressed homeowners who cannot afford their underwater homes will simply walk away from them. Homeowners who would have originally viewed a mortgage modification with principal forgiveness as a godsend will not accept these offers due to the accompanying tax burden. These facts will in turn lead to more foreclosures and more borrowers may have to file bankruptcy to discharge foreclosure deficiencies that could have been avoided with the Act in place with a short sale or mortgage modification. Another sad consequence is that for distressed homeowners who really want to hold onto there homes they may be forced to accept a mortgage modification with no debt forgiveness despite being eligible for it just to avoid the negative tax consequences. This would negate the intended benefit of the attorney general’s settlement act and provide an unintended benefit to lenders. There is little more than a month for Congress to act and there are even larger issues being debated in Washington that overshadow the need to extend this mortgage debt relief act. One can only hope that as the year closes the vital need for the extension of this act is recognized for the sake of not only distressed homeowners, but for the entire housing market since the negative effects of increased foreclosures will continue to drag the U.S. economy down into 2013 and beyond.