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For tax purposes, how do I accurately determine gain or loss due to 'sale' via non-judicial foreclosure?

Portland, OR |

Oregon house purchased for 245,500 in August 2008; FHA loan via Wells Fargo. Took $7500.00 tax credit (the one that is repaid over 15 years to the IRS).

Defaulted in April 2010. Received letter warning of foreclosure stating, "in the event of foreclosure, you would not be personally liable for any part of the debt, but you will lose your interest in and rights to the property.' A non-judicial foreclosure was completed by Well Fargo in November 2010.

Received 1099-A from bank: line 2. balance of principal 236,863. line 4. FMV listed 259,830. Item 5. 'Was borrower personally liable for repayment of the debt?. checked 'yes'.

Per IRS 4505, if 'sale' is a loss, repayment of $7500 not required. If 'sale' is gain, full repayment required.

Safe to proceed with filing sale as a loss?

Attorney Answers 2


  1. 1. FYI - In Oregon, a deficiency judgement cannot be obtained through a non judicial foreclosure. No deficiency is allowed on a residential trust deed (ORS 86.770). Therefore, even though box 5 is checked, the bank cannot come after you under Oregon law.

    2. You have to wait for the bank to send you a 1099-C before you can claim/declare it on your taxes.

    3. File your current taxes using 1099-A on Schedule E as a sale of the property and calculate any potential capital gains accordingly. However, since box 4 is larger than box 2, I doubt this is a problem. Also, if this was a sale of primary residence, the cancelled debt is not taxed as income due to the legislation passed by Obama.


  2. Though I agree with the second poster in some regards, there is a another line of attack that can be taken. There is case law that has treated the anti-deficiency provisions of a state's deed of trust act or nonjudicial foreclosure law as moving the debt from recourse to non-recourse. If the note is treated as non-recourse, due to the statute, then the actual transaction is treated as trading the property for the value of the note. Thus your amount received in the nonjudicial foreclosure is $236,863 and not the FMV value stated by the bank, and that amount is clearly below your basis, resulting in a loss. The opinion that you would need to receive on that matter or letter to be attached to your tax return will likely cost much less that the cost of a full blown appraisal on a home that you do not own.
    The case that you or your tax professional will be looking for is Chilingirian v. Comm'r, 918 F2d 1251 (6th Cir. 1990) aff'm 52 TCM 606 (1986). I will admit that I find this case to be less than stellar in its treatment of the state law issue of foreclosure and deficiency, but its conclusion is that the note becomes non-recourse by operation of the statute. Non-recourse case law is prevalent and relatively consistent in treating the transaction as trading the property for the note. See if that track gives you a better result.