Tax Impact of Principal Reduction

Posted on March 19, 2010 by Neil Garfield

With the Obama administration and private lenders actively considering mortgage-principal-reduction programs to help financially distressed homeowners, the Internal Revenue Service has issued an advisory to taxpayers who receive — or seek to receive — such assistance if it’s offered.

Editor’s Note: The only thing I would add to this, for the moment, is that any principal reduction is basically an admission that your property is not worth the amount of the mortgage. If you have made demand for damages or relief based upon appraisal fraud or other causes of action in or out of court, the taxpayer can take the position that the debt reduction is also in lieu of payment of damages which often is not taxable. Under this theory — which may or may not apply — you would NOT be limited to your principal residence to claim an exemption. Consulting with a licensed attorney or accountant familiar both with federal and state tax law would be strongly advisable.

The reason I mention state law is that the reduction of principal might be the basis for contesting the assessed valuation of your home for real estate taxes, property insurance etc.

IRS tells homeowners how to get tax relief if a lender forgives part of their debt

Reduction of mortgage principal, usually considered taxable income, is expected to become more prevalent as the Obama administration and banks seek ways to prevent foreclosures.

By Kenneth R. Harney

March 14, 2010

Reporting from Washington

With the Obama administration and private lenders actively considering mortgage-principal-reduction programs to help financially distressed homeowners, the Internal Revenue Service has issued an advisory to taxpayers who receive — or seek to receive — such assistance if it’s offered.

The IRS gets involved in mortgage principal write-downs because the federal tax code generally treats any forgiveness of debt by a creditor in excess of $600 as ordinary taxable income to the recipient.

However, under legislation that took effect in 2007, certain home mortgage debt cancellations — such as through loan modifications, short sales or foreclosures — may be exempted from tax treatment as income.

Sheila C. Bair, chairwoman of the Federal Deposit Insurance Corp., recently confirmed that her agency was working on a new program to expand the use of principal mortgage reductions to keep underwater borrowers out of foreclosure.

Most major banks and mortgage companies have preferred monthly payment reductions and other loan modification techniques over cuts of principal balances, but a handful have made limited use of the concept.

One of the largest servicers of subprime home loans, Ocwen Financial Services of West Palm Beach, Fla., has strongly advocated principal reductions to keep people out of foreclosure, and claimed broad success with them. Ocwen President Ron Faris testified to a congressional subcommittee this month that borrowers with negative equity were as much as twice as likely to re-default after a standard payment-reduction loan modification than those who receive partial forgiveness on their principal debt.

But what are the tax implications when your lender essentially says: OK, we recognize that you’re underwater, maybe you’re thinking about walking away, and we’re going to write off some of what you owe to keep you in the house?

IRS guidance issued March 4 spelled out step by step how financially troubled and underwater borrowers can qualify for tax relief when a lender agrees to lower their debt. Here are the basics, should you be considering a short sale or loan modification involving principal reduction.

First, be aware that the federal tax exclusion only applies to mortgage balances on your principal residence — your main home — and not on second homes, rental real estate or business property. The maximum amount of forgiven debt eligible under the law is $2 million for married taxpayers filing jointly and $1 million for single filers.

But there are some potential snares: Your debt reduction can only be for loan amounts that you’ve used to “buy, build or substantially improve your principal residence.” This includes refinancings that increased your total mortgage debt attributable to renovations and capital improvements of your house. But if you used the proceeds for other personal purposes, such as to pay off credit card bills, buy cars or invest in stocks, the mortgage debt attributable to those expenditures is not eligible for tax exclusion.

When your lender forgives all or part of your mortgage balance, the lender is required by law to issue you an IRS Form 1099-C, a “Cancellation of Debt” notice, which is also sent to the IRS. The form shows not only the amount of debt discharged but the estimated fair market value of the house securing the debt as well.

A few other noteworthy features of the IRS rules: If you’ve been foreclosed upon or you do a short sale and lose money in the process, don’t claim a tax loss on your federal filing. The IRS will turn you down. However, if you go to foreclosure and your lender agrees to cancel all or part of the unpaid mortgage balance as part of the deal, then you can file for an exemption from the IRS.

What if your lender reduces the debt on your house but you continue to own the property and live in it? There’s a tax wrinkle in the fine print: The IRS will require you to reduce your “basis” in the house — your “cost” for tax purposes — by the amount of the forgiven debt. But that’s not likely to be a big concern for most homeowners digging their way out.

Finally, if you want to claim the debt-forgiveness exemption, download IRS Form 982 at www.irs.gov and attach it to your return for the year in which the debt was forgiven. And don’t assume that this tax code benefit to homeowners will be around forever. It expires at the end of 2012.

kenharney@earthlink.net.

Distributed by the Washington Post Writers Group

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Cancel that Mortgage!: Bankruptcy Lawyers Get Wise

Posted on August 1, 2008 by Neil Garfield

Cancel That Mortgage: The Grounds

By L. Jed Berliner, Springfield Bankruptcy Attorney on Jul 31, 2008 in Consumer Protection, Massachusetts, Mortgages, Predatory Lending

Mortgages can be cancelled in a process called rescission. Here’s an overview. Grounds for exercising this right given borrowers by Congress are found in problems with the mortgage closing documents for a residential second mortgage or refinanced mortgage.

Problems include the absence of Truth In Lending Disclosures, such as the Annual Percentage Rate (APR) for interest and the amounts and schedule of payments. The absence of “monthly” in the payment schedule has been held to be a defect allowing rescission. The APR might not be calculated correctly, or the Truth In Lending Disclosure form might never have been given at all.

Another problem can be a failure to give two separate cancellation notices to each borrower. For example, a married couple should get a total of four cancellation notices. Here’s an earlier discussion of this.

A third problem can be the use of incomplete cancellation notices. The suggested form tells a borrower that the cancellation must take place within three business days of the date of the transaction, with a blank space for a date. It adds that the cancellation notice must be sent no later than midnight of the third business day following the triggering date, with another blank space for a date.

If both blanks are not completed, then the cancellation notice is defective and the right to cancel continues beyond the initial three days. This was the ruling in the recent Massachusetts federal case of Bonney v. Washington Mutual Bank.

Another ground might be an Unfair or Deceptive Trade Practice from the terms of the mortgage. A Massachusetts state judge has ruled that a mortgage might be subject to cancellation if a mortgage had (1) interest which adjusted within its first three years, and (2) an initial “teaser” rate was at least 3% lower than the fully indexed rate, and (3) a borrower with a debt-to-income ratio of over 50% if the fully indexed interest rate is used, and (4) either the loan-to-value ratio is 100% (no equity), or there is a substantial prepayment penalty, or any prepayment penalty extends beyond the introductory period.

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Housing Meltdown: Better or Worse than We Think?

Posted on May 30, 2008 by Neil Garfield

Figures don’t lie but liars figure. See if you figure this one out. Home sales statistics announced to the public do not include cancellations which are running at 30%. The good news is that cancellations are declining lately so maybe the figures lie, but not as much as they did?

New Home Sales and Cancellations

by CalculatedRisk

Barry Ritholtz discusses the impact of revisions and cancellations with regards to the New Home sales report: April New Home Sales – Revisited. I’ll have more on revisions, but I’ll try to clear up cancellations first. Barry writes:

Cancellations: Of course, none of the new home sales data includes cancellations, which were running north of 30% — and with the recently tightened credit, it may be even worse.

Yes. New home sales data doesn’t include cancellations, and cancellations were probably just over 30% in Q1 2008 (based on my survey of public builder reports), but …

Cancellations are not getting worse. In fact they are getting better. For most builders, cancellation rates peaked in Q3 2007 (with the credit crunch) and have improved significantly since then. And it’s the change in cancellation rates that matter when analyzing the New Home data.

This is a key point: right now the Census Bureau is probably underestimating sales!

Here is how the Census Bureau handles cancellations:

The Census Bureau does not make adjustments to the new home sales figures to account for cancellations of sales contracts. The Survey of Construction (SOC) is the instrument used to collect all data on housing starts, completions, and sales. This survey usually begins by sampling a building permit authorization, which is then tracked to find out when the housing unit starts, completes, and sells. When the owner or builder of a housing unit authorized by a permit is interviewed, one of the questions asked is whether the house is being built for sale. If it is, we then ask if the house has been sold (contract signed or earnest money exchanged). If the respondent reports that the unit has been sold, the survey does not follow up in subsequent months to find out if it is still sold or if the sale was cancelled. The house is removed from the “for sale” inventory and counted as sold for that month. If the house it is not yet started or under construction, it will be followed up until completion and then it will be dropped from the survey. Since we discontinue asking about the sale of the house after we collect a sale date, we never know if the sales contract is cancelled or if the house is ever resold. Therefore, the eventual purchase by a subsequent buyer is not counted in the survey; the same housing unit cannot be sold twice. As a result of our methodology, if conditions are worsening in the marketplace and cancellations are high, sales would be temporarily overestimated. When conditions improve and these cancelled sales materialize as actual sales, our sales would then be underestimated since we did not allow the cases with cancelled sales to re-enter the survey. In the long run, cancellations do not cause the survey to overestimate or underestimate sales.
emphasis added

The housing outlook is grim, but there is no need to borrow trouble. We are now in a period of improving cancellation rates, and this means the Census Bureau is likely underestimating actual sales. 

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