Real Estate Update in Palo Alto & Los Altos

So yes, you could indeed pay tax on the money that was used to pay back the mortgage even though you don’t get any of it.

Let’s assume the example homeowner mentioned earlier has nonrecourse mortgage debt of $110,000 and an adjusted basis of $20,000 in the home, which has a fair market value of $100,000. The owner has no ordinary tax liability for that $10,000 difference in his debt and the home’s value. But when a nonrecourse mortgage is foreclosed and that debt is greater than the home’s value, the property is treated for tax purposes as if it were sold for the balance of the mortgage.

That means this homeowner would have a $90,000 difference between the mortgage debt and his basis ($110,000 less $20,000) and that $90,000 is taxable capital gain from the “sale or other disposition” of the home. So even though the foreclosed-upon owner didn’t get any cash from the transaction, he still owes taxes on what is known as phantom income. The only good news is that the taxes are collected at the lower 15 percent (or 5 percent for lower-income taxpayers) capital gains rate.

If that same homeowner’s mortgage was recourse debt and his lender canceled the $10,000 difference between the outstanding loan and the home’s fair market value, the foreclosed-upon owner would owe higher, ordinary taxes on that forgiven 10 grand. In addition, his capital gains bill would be based on $80,000 — the property’s fair market value of $100,000, less his $20,000 adjusted basis.

For some struggling homeowners, the taxes on forgiven debt or phantom income are all too real.

“If it’s $10,000, that’s a relatively small spread; $2,000 to $2,500 in federal and state taxes,” says Lanzaro. “But it’s not just the working man having this problem. Everybody’s getting in over their head these days.

“If you have a $700,000 mortgage and the bank can only get $500,000 in a foreclosure sale, now you’re talking about some tax liability.”

And don’t think the IRS won’t find out. The agency has a mechanism to catch foreclosure sales. The lender is supposed to issue a 1099-C to alert the former homeowner and IRS of the canceled debt, and, in certain cases, a 1099-A showing the information you need to figure your gain or loss.

“Some people are moving and the 1099 has trouble catching up,” says Gary Garwitz, tax partner with BKD LLP in Springfield, Mo. “If you’re in that situation and had a mortgage you didn’t pay off, make sure you get that 1099.”

The IRS definitely will get its copy and expect the associated taxes. If they’re not paid, penalties and interest will be added.

Home-sale exclusion opportunity
There is one bit of good news for our hypothetical homeowner and others dealing with foreclosure-induced taxes. You can get out from under at least part of the IRS bill if you meet the homeownership tax-exclusion rules.

This popular tax break allows a single homeowner who sells his property under more favorable circumstances to exclude up to $250,000 profit from taxes; the exclusion is $500,000 for married couples filing jointly.

The exclusion also applies in foreclosures. As long as the seller, in this case the foreclosed-upon owner, lived in the home as his principal residence for two of the last five years, he also can avoid taxes on any capital gain profit, phantom or real.

Bankruptcy and insolvency solutions
Two other circumstances offer tax relief in foreclosures, but both could cause other financial problems.

If a homeowner can show he’s insolvent before the discharge of the mortgage and turnover of the property, as well as afterward, any proceeds are not taxed. However, says Trenholm, “insolvency is a little tricky. There’s no strict definition of what assets (go in the calculation), but for the most part, a lot of people caught in the real estate crunch can establish that condition.”

The other option is bankruptcy.

“Forgiveness debts, in these cases, are not taxed,” says Roth. “They don’t want the bank chasing them down, which is why many times people going through foreclosure also go through bankruptcy.”

However, filing for bankruptcy has its own set of considerations. “New bankruptcy rules don’t give (filers) a lot of relief,” says William S. Bost, a member of the Raleigh, N.C.-based law firm Ragsdale Liggett PLLC. “If you have a job and are making money, the new bankruptcy rules don’t give you a whole lot of help. It gives you some time, but I don’t think that’s necessarily the way to go.

“It used to be like going to church, you walk in and walk out absolved, but it’s not like that anymore,” says Bost. “Now, it’s not worth the pain you pay the rest of your life.”

One thing lending and tax experts all agree on: If you’re facing foreclosure, take action as soon as you realize you’re in trouble. And get professional help to determine exactly what your personal tax liability might be in the transaction.

Lanzaro has two other recommendations: “The best advice is, don’t buy a house you can’t afford and don’t get an adjustable-rate mortgage.”

Other options
If you’re stuck with more house than you can pay for, there are a couple of options in addition to foreclosure. Either is likely to reduce the stress of this terrible time and probably will do a little less damage to your credit report.

Each, however, still has tax and other potential long-term financial implications.

Short sale: This real-estate transaction has become popular among homeowners who are having problems making payments on a mortgage that is more than their house is worth. Rather than waiting for the bank to foreclose, the owner works with the lender to complete a sale of the home for less than the loan balance.

“You have a property you’re just trying to get out from under,” says Paul Haarman, vice president of Renaissance Mortgage in Salem, N.H. “Everybody is all lined up at the table and the buyer buys the property and the lender agrees to the price. You have a $250,000 debt, the bank nets only $220,000 and that $30,000 is written as a foreclosure shortage.”

A short sale keeps a foreclosure from showing up in your credit record, but the shortfall will appear there as a delinquent loan. It’s not as bad as a foreclosure, but, says Bost, “It’s on the credit report and, as a (future) borrower and consumer, it will haunt you.”

Deed-in-lieu of foreclosure: In this case, says Trenholm, the homeowner basically says to the lender, “I want to save you some time, some money. How about I just turn over the property?”

This way the foreclosure process is avoided, which will help the borrower, because it won’t show up on a credit record. However, it could still show up on a credit report as forgiven debt.

This process has “pretty much the same tax consequences as a foreclosure,” says Trenholm. Because you are being relieved of the indebtedness on the property, for tax purposes it’s still considered sale of the property.

“All it does is make it a little bit easier to go through the process,” he says.

Tax liabilities remain
The argument for short sales and deeds-in-lieu is that they are beneficial to strapped borrowers. From a tax and financial perspective, however, they don’t really matter.

“All of these situations are basically the same,” says Stein. “The mechanics and timing may be a little different, but essentially in all of them at some point a lender is saying to the borrower you don’t have to pay the rest of what you owe. When he tells the borrower that, that’s cancellation of indebtedness income.”

“The only benefit,” says Bost, “is the ‘It’s over’ factor.”