Tax Effects of a Short Sale

Many of my short sale sellers have wondered about the tax effects of a short sale. I always recommend that they talk to a tax professional, such as a certified public accountant or tax attorney. Every situation is different, so it is best to talk to your tax professional about your tax situation. Below is just a little bit of information from the California Association of Realtors.

SOURCE: CALIFORNIA ASSOCIATION OF REALTORS®

TAXATION OF SHORT SALES

Question: What are the tax implications of a short sale?

Answer: 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" 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).

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. Under the Mortgage Forgiveness Debt Relief Act of 2007 (H.R. 3648) signed by the President 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, 2013. (The end date was increased by three years from 2010 to 2013 pursuant to H.R. 1424, the Emergency Economic Stabilization Act of 2008).

**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. Recently passed California law, SB 1055, conforms California Revenue and Tax Code Section 17144.5 to federal law with the following exceptions:

(1) The maximum amount of acquisition indebtedness is reduced to $800,000 for couples filing jointly and $400,000 for individual filers;

(2) The maximum amount of debt relief income that can be forgiven is $250,000 for couples filing jointly and $125,000 for individual filers; and

(3) California’s debt relief statute applies to property sold on or after January 1, 2007 and before January 1, 2009.

Finally, if the owner has owned the property for some time and has refinanced to take out some of the equity, the owner could be subject to capital gains taxation when selling the property as well.


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~Tina Jan~
DRE# 01505855
Coldwell Banker Kivett-Teeters
1655 E. Sixth St.
Beaumont, CA 92223
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tina.jan@coldwellbanker.com
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