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Ch 7 discharged secured/unsecured debts AND "reduction of tax attributes" on tax return.

Charlotte, NC |

Filed chapter 7 , II are 1 - mortgage on home , 2 - mortgage on rental 3 - unsecured cc . All debts were discharged , zero obligation . Bank has liens on homes and will get their money if / when those properties are sold . For tax purposes I have to file form 982 and report discharged debt which in essence can be excluded from gross income . Per my bankruptcy attorney I don't have to pay any taxes on the discharged debts . Net result - wash . ( per bk attorney ) . Tax Time - Here's what I don't understand - " reduction of tax attributes . " So now my accountant says I have to reduce my cost basis by the amount discharged . Therefore in the future if I sell the house I could potentially pay capital gains tax . What ? If I sell the bank get all the money to cover the liens . Why do I have to pay cap gain ?

I truly don't understand the reduction in basis. Ch 7 relieved me of the debts. If Ch 7 relieved me of the debts AND gave me the house as well - I WILL GLADLY PAY CAP GAINS at disposition of the homes. Yes I am walking away debt free but because the bank still has liens on the homes, the "creditor" has not lost or will lose any money! So why must I do a "reduction in tax attributes?" I don't understand. Can someone shed some light on this? Who supercedes who? Bankruptcy courts or IRS? Is my accountant wrong in this case? Is there a way around where another form/filing washes the basis reduction? Btw - we're still paying the mortgages on both primary home and the rental property still has a tenant. Both mortgages are still being paid post bankruptcy as we still want to stay in the home. Any comments or suggestions is greatly appreciated.

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Attorney answers 2

Posted

Your accountant is correct. I always advise my clients of this possibility, particularly when they have loss carryforwards they are taking on their taxes each year because they will lose those before any basis reduction is required. It all depends on the amount of debts discharged and the amount of attributes you have.

Section 108 of the Internal Revenue Code (26 U.S.C. 108) provides for the exclusion of debt discharged in bankruptcy from income, but requires a reduction in specific tax attributes in the following order:
(A) NOL
Any net operating loss for the taxable year of the discharge,
and any net operating loss carryover to such taxable year.
(B) General business credit
Any carryover to or from the taxable year of a discharge of
an amount for purposes for determining the amount allowable as
a credit under section 38 (relating to general business
credit).
(C) Minimum tax credit
The amount of the minimum tax credit available under section
53(b) as of the beginning of the taxable year immediately
following the taxable year of the discharge.
(D) Capital loss carryovers
Any net capital loss for the taxable year of the discharge,
and any capital loss carryover to such taxable year under
section 1212.
(E) Basis reduction
(i) In general
The basis of the property of the taxpayer.
(ii) Cross reference
For provisions for making the reduction described in clause
(i), see section 1017.
(F) Passive activity loss and credit carryovers
Any passive activity loss or credit carryover of the taxpayer
under section 469(b) from the taxable year of the discharge.
(G) Foreign tax credit carryovers
Any carryover to or from the taxable year of the discharge
for purposes of determining the amount of the credit allowable
under section 27.

Congress has the power to make any laws it wants. This is how they modified the Internal Revenue Code with regard to bankruptcy cases.

It sounds like you're upset at the law. This country has many laws. Some are fair and some are not. Not everyone likes every law. But it is the law. The way to change laws is to contact your Congressional representatives.

Mark Markus has been practicing exclusively bankruptcy law in California since 1991. He is a Certified Specialist in Bankruptcy Law by the State Bar of California Board of Legal Specialization, AV-Rated by martindale.com, and A+ rated by the Better Business Bureau. His webpage is www.bklaw.com

Legal disclaimer: Mark J. Markus practices law in California only. The information is not, nor is it intended to be, legal advice. You should consult an attorney for individual advice regarding your own situation. Answering this question does not in any way constitute legal representation.

Asker

Posted

Thank you for your response. Here are some additional facts that I omitted. filed bk Feb 11', discharged May 11'; case closed Jan 12'. rental home purchase in 08 @ 150k', depreciated 15k since. Value of rental at time of filing was 120k. There are no NOLs. 40k in cc debts discharged. My cpa is new to tax returns with bankruptcy & reduction in tax attributes. She says I have to reduce the rental basis by the discharged cc debt of 40k. (135-40) to 93k. Assume I sell the house at the loan balance of 128k, all of which goes to the bank to satisfy the loan and I get zero. Per cpa and tax purposes, my gain is 35k (128-93) and I have to pay at ordinary income. Question - Why? Yes I walked away debt free from ch 7 discharged, BUT the bank got all there money back. I made no money? Again if I got the discharge AND got the house free, I would gladly pay cap gains upon selling. 2 - What does the discharged cc debt have to do with reducing my cost basis in the rental? 3 - What should the correct reduction in basis be? Per cpa using the discharged cc debt does not sound right.

Mark Markus

Mark Markus

Posted

Take a look at IRS Publication 4681 (http://www.irs.gov/pub/irs-pdf/p4681.pdf), specifically the section on tax attributes on principal residences. It should clarify things for you more. Your question is 99% tax-related, not bankruptcy, so if you still need advice, I suggest talking to a tax attorney.

Bruce Givner

Bruce Givner

Posted

Mark is correct.

Mark Markus

Mark Markus

Posted

Also just found out that per section 1017 of the Internal Revenue Code, if you claimed the property as exempt on your bankruptcy papers, you are not required to reduce the cost basis upon discharge. I'm not sure exactly what they mean by claiming it as exempt, but may be sufficient to have stated that on the Statement of Intention form.

Posted

You wrote, "So now my accountant says I have to reduce my cost basis [in the real estate] by the amount discharged . Therefore in the future if I sell the house I could potentially pay capital gains tax . What ? If I sell the bank get all the money to cover the liens . Why do I have to pay cap gain ?"

Comment:
I am not a tax attorney, but if the hypothetical future sale covers the existing lien and puts $10,000 of sales proceeds in your pocket, it sounds like income to me.

Bruce Givner

Bruce Givner

Posted

Gary is correct.

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