Tax clock is ticking for underwater homeowners

Real estate tax talk

Ordinarily, if all or part of a home loan is forgiven by the lender, either in a short sale or foreclosure, the amount forgiven is taxable income. Thus, for example, a homeowner who had $100,000 in mortgage debt forgiven through a short sale would have to pay income tax on the $100,000.

However, Congress adopted the Mortgage Debt Relief Act of 2007 to save millions of underwater homeowners from this tax disaster. Under the Act, homeowners can exclude from their taxable income up to $2 million of debt forgiven on their principal residence during 2007 through 2012. The Act applies to debt reduced through mortgage restructuring, as well as forgiven in connection with a foreclosure.

But the Mortgage Debt Relief Act expires on January 1, 2013. Any mortgage debt forgiven after that date will be fully taxable, unless the Act is extended. To avoid this deadline, a home must not only be sold before the deadline, but the lender must formally forgive the loan in a letter issued before January 1, 2013.

Will the Mortgage Debt Relief Act be extended past 2012? No one knows. In its 2013 budget, the Obama Administration asked that the Act be extended for two years. Several bills have been pending in Congress to extend it as well, but so far nothing has happened. No one has any idea what Congress will do, and it likely won’t act until after the election on November 8, if then. It may depend on who wins the election.

Homeowners who want to take advantage of the Mortgage Debt Relief Act must sell their homes before the end of the year. It may already be too late for most homeowners, since short sales often take many months to complete. But some homeowners may be able to complete a short sale before the deadline if they act now — it all depends on the property and lenders involved. There will likely be a deluge of sellers trying to meet the end of year deadline.

Keep in mind, however, that even if the Mortgage Debt Relief Act is allowed to expire, many homeowners will still be able to avoid paying income tax on their forgiven mortgage debt.

One way to do this is for the home to file for bankruptcy and have the debt discharged by the bankruptcy court. Debts discharged through bankruptcy are not considered taxable income.

Alternatively, if the homeowner is insolvent when the debt is cancelled, some or all of the cancelled debt may not be taxable. You are insolvent when your total debts are more than the fair market value of your total assets. For these purposes your assets the value of everything you own. This includes things like your interest in a pension plan and the value of your retirement account.

For details, see IRS Publication 4681, Canceled Debts, Foreclosures, Repossessions, and Abandonments.

Stephen Fishman is a tax expert, attorney and author who has published 18 books, including "Working for Yourself: Law & Taxes for Contractors, Freelancers and Consultants," "Deduct It," "Working as an Independent Contractor," and "Working with Independent Contractors." He welcomes your questions for this weekly column.

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