The California Association of REALTORS (C.A.R.) declared "victory" upon the Senate passage of SB 1178 on June 3, 2010 (the mortgage relief bill now moves to the Assembly for approval). Should this bill become law, California real estate agents should be cautioned to read the legislation very carefully because the protections afforded will be very narrow in scope.
Upon the foreclosure or short sale of a piece of real estate, the lender with the deficiency will issue a Form 1099-C, Cancellation of Debt to both the taxpayer and the IRS. In past years, the amount of cancelled debt would give rise to what is sometimes referred to as "phantom income". This phantom income would be taxable as ordinary income and would result in tax that had to be paid by the taxpayer. The taxpayer however, having never taken actual receipt of any cash, would many times be unable to pay the tax this phantom income produced.Fortunately for taxpayers, Congress addressed this very issue in The Mortgage Forgiveness Debt Relief Act of 2007.
The mortgage relief bill ; H.R. 3648, was passed by Congress and was signed by President George W. Bush in December of 2007. The bill, grants relief to homeowners that have been given relief from mortgage debt through a foreclosure, short sale or other similar agreement with the lender. Generally, eligible debt is what is referred to as acquisition indebtedness. Acquisition indebtedness is defined as debt incurred to acquire, construct or rehabilitate a residence. However, refinanced debt will qualify, so long as the debt does not exceed the original amount and home equity debt will qualify so long as the funds were used to improve the taxpayer's home. No relief is available for cash-outs. The forgiven mortgage debt must have been secured by the residence and no more than $2 million of mortgage debt is eligible for the exclusion ($1 million of mortgage debt for a married person filing separately). The relief applies to qualified debt forgiven between January 1st 2007 and December 31st 2012.
While the State of California does not conform exactly to Federal law, it also provides relief from tax on forgiven mortgage debt for calendar years 2007 and 2008. Senate Bill 1055, enacted September 25th, 2008 allows taxpayers to exclude up to $250,000 of cancellation-of-debt income resulting from a discharge of a loan that was used to acquire, construct, or substantially improve the principal residence of the taxpayer. The maximum amount of a loan eligible to be excluded is $800,000. The exclusion is further phased-out for discharged loans that exceed $800,000. Some taxpayers may need to file an amended California return for 2007 in order to take advantage of these provisions. Doing so may result in a refund or reduction of tax liability.
If this bill is signed into law by the Governor, we should be careful not to overstate of the victory, as was done upon the passage of the Mortgage Forgiveness Debt Relief Act of 2007 (borrowers were being told that all cancellation of debt was tax free - this is simply not the case). While SB 1178 will produce a very good law, it will not be a panacea for the aftermath of California's refinance boom.
Upon the foreclosure or short sale of a piece of real estate, the lender with the deficiency will issue a Form 1099-C, Cancellation of Debt to both the taxpayer and the IRS. In past years, the amount of cancelled debt would give rise to what is sometimes referred to as "phantom income". This phantom income would be taxable as ordinary income and would result in tax that had to be paid by the taxpayer. The taxpayer however, having never taken actual receipt of any cash, would many times be unable to pay the tax this phantom income produced.Fortunately for taxpayers, Congress addressed this very issue in The Mortgage Forgiveness Debt Relief Act of 2007.
The mortgage relief bill ; H.R. 3648, was passed by Congress and was signed by President George W. Bush in December of 2007. The bill, grants relief to homeowners that have been given relief from mortgage debt through a foreclosure, short sale or other similar agreement with the lender. Generally, eligible debt is what is referred to as acquisition indebtedness. Acquisition indebtedness is defined as debt incurred to acquire, construct or rehabilitate a residence. However, refinanced debt will qualify, so long as the debt does not exceed the original amount and home equity debt will qualify so long as the funds were used to improve the taxpayer's home. No relief is available for cash-outs. The forgiven mortgage debt must have been secured by the residence and no more than $2 million of mortgage debt is eligible for the exclusion ($1 million of mortgage debt for a married person filing separately). The relief applies to qualified debt forgiven between January 1st 2007 and December 31st 2012.
While the State of California does not conform exactly to Federal law, it also provides relief from tax on forgiven mortgage debt for calendar years 2007 and 2008. Senate Bill 1055, enacted September 25th, 2008 allows taxpayers to exclude up to $250,000 of cancellation-of-debt income resulting from a discharge of a loan that was used to acquire, construct, or substantially improve the principal residence of the taxpayer. The maximum amount of a loan eligible to be excluded is $800,000. The exclusion is further phased-out for discharged loans that exceed $800,000. Some taxpayers may need to file an amended California return for 2007 in order to take advantage of these provisions. Doing so may result in a refund or reduction of tax liability.
If this bill is signed into law by the Governor, we should be careful not to overstate of the victory, as was done upon the passage of the Mortgage Forgiveness Debt Relief Act of 2007 (borrowers were being told that all cancellation of debt was tax free - this is simply not the case). While SB 1178 will produce a very good law, it will not be a panacea for the aftermath of California's refinance boom.
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