I’ve been doing this job for quite a while now and have talked to countless potential clients and debtors. In my conversations with potential bankruptcy debtors, a common topic is the misunderstanding of how taxes are treated in bankruptcy.
Most people I discuss bankruptcy with are under the impression that there is no way to get relief when it comes to taxes. This is simply not the case. In fact, in some situations it is possible to get 100% relief from taxes owed, of course, depending on the circumstances.
There are many options for tax releif in bankruptcy. It’s possible to disharge tax debt, it’s possible to pay a portion that is not dischargible and discharge another portion. There are many different scenerios and options.
They say you can count on death and taxes. Yes you can count on both, however, you may be able to escape one, and not the other. If you take anything away from this post, it should be that when it comes to taxes in bankruptcy, there are options. It is very case specific as to what those options are. So if you’re considering bankruptcy and have taxes owed, give me a call and we’ll figure it out.
The Tax Consequences of Debt Forgiveness after Foreclosure and Short Sale
The IRS states that there is no debt forgiveness on non-recourse debt/loans. In Arizona, non-recourse debts are mortgages that were used to purchase and/or improve homes, also known in most cases as, “purchase money loans.” An example of non-recourse debt/loan is a first mortgage which purchased 100% of a home. Another example of a non-recourse debt/loan is both a first and a second mortgage where the first mortgage went towards a percentage of the home purchase, and the second mortgage went towards another percentage of the home purchase. Here, because the second mortgage went towards purchasing the home, it is a non-recourse debt/loan. An example of what a non-recourse debt is not, is a second mortgage where the homeowner took out cash and used it for something else (e.g. buying a car, boat, etc.). Most of these loans are know as “home equity lines of credit” or “HELOCs”.
The Mortgage Debt Relief Act of 2007, provides for no tax on short sale difference or foreclosure deficiency of non-recourse loans, if the home is a primary residence. So, for example, if the homeowner had a simple 80/20 mortgage where both went 100% towards purchasing the home, the homeowner will not be taxed after short sale or foreclosure. If, however, the homeowner had a “HELOC”, or some other non-recourse loan which was forgiven, they will be issued form 1099 and taxed for the forgiveness.
Debt forgiveness on “HELOCs” and other non-recourse debts are rare after foreclosure and short sale on most occasions. Almost always, after short sale/foreclosure, the homeowner must make arrangements with their lender to pay the HELOC (unless of course in the foreclosure sale, the HELOC is satisfied or paid off entirely). If the homeowner does not make arrangements, they face collection and/or civil action.
After foreclosures or short sales which involve “HELOCs” many homeowners consider options available to them under the bankruptcy code. Filing for bankruptcy protection after foreclosure/short sale can discharge a homeowner’s obligations to pay a HELOC. Many homeowners who “see the writing on the wall” are considering their options even before foreclosure/short sale, when they know they will be unable to pay the HELOC afterwards. Filing for bankruptcy protection even before foreclosure or short sale can work retroactively in protecting homeowners from their obligations under a HELOC. It is important to seek the advice of an experienced bankruptcy attorney to know your rights and obligations.
If I Short Sale, Will I be Liable for the Difference of the Sale and What I Owe???
If your home is “under water” or “upside down” and the lender approves a short sale, the difference of what you owe on the note (your loan) and what the home actually sells for, is waived by the lender, unless you agree to be responsible for it.
For example, assume you originally bought your home for $200,000, and now it’s worth $100,000. The lender approves a short sale, of $100,000, making the short sale difference $100,000. After this sale closes, you have no liability to the lender for the $100,000 short sale difference, unless you agree to pay the $100,000 back to the lender.
If you’re short selling, you MUST READ THE SELLER APPROVAL DOCUMENTS CLOSELY. Be cautious of what realtors are telling you. Remember, they are not attorneys. If you are considering a short sale, it is always recommended that you seek the advice of an experienced attorney in Arizona, who is familiar with this area.