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Q re short sale after chapter 7 discharge on mtg and tax liability. Also, is it changing next year. My bro want to discharge mtg

Los Angeles, CA |

spoke diff tax expert & got 3 diff answrs. Q re taxability from 1099 for home mtg after chapter 7 bankruptcy then short sale
The question is this. I filed a chapter 7 bankruptcy and did not reaffirm my home. The plan was to surrender it. (My understanding, correct me if I am wrong), is that any 1099s I receive from a foreclosure would not be taxable at this point. Later (after discharge) I decided to short-sale the property to keep the foreclosure off of my credit...Does this now somehow create the potential for Tax Liability since I entered into a new contract under the Short Sale. Do I just file form 982 if I receive a 1099 for forgiveness of debt income. Also, somebody told me that starting in 2012 even mortgages discharged anin bankruptcy might be taxable. Is this true. Seems wrong

Attorney Answers 3

Posted

No new tax liability, form 982 will resolve the issue with the IRS. 2013 is when personal residence forgiveness of debt becomes potentially taxable.

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Posted

The debt that was discharged in your bankruptcy is not taxable COD income. The IRS created Form 982 for you to handle this situation. Under code section 108 debt that is discharged in a Title 11 action is not taxable for COD income. You will still most likely receive a 1099, but the income it is reporting will be excluded. In 2013 the Mortgage Debt Forgiveness Act of 2007 is set to expire and the debt canceled on you principal residence will no longer have the $2 million exclusion currently available under the Act. This does not affect the bankruptcy provision that is covered in Section 108 of the IRC.

Any individual seeking legal advice for their own situation should retain their own legal counsel as this response provides information that is general in nature and not specific to any person's unique situation. Circular 230 Disclaimer - Advice given in this response cannot be used to eliminate penalties with the IRS or any other governmental agency.

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Posted

I am not a tax lawyer but my understanding is that since you have no personal liability due to the bankruptcy you would never have to pay taxes on any debt cancellation anyway. This is just another reason in addition to being able in your case to file Form 982 and checking the box that says you did a case under Title 11 (which includes Chapters 7, 13 and 11). You may have gotten three different answers and they are probably all correct. The bottom line is that you should not have to worry about cancellation of debt tax liability. Now the question I ask all the clients who are doing a short sale: Why? What if the buyer finds something wrong with the house later and sues you? You can forget about bk to save you for the next 4 years when you become eligible to get a discharge in a C13 case and then only by paying in a plan. C7 is not available to you for 8 years. The real estate agent is getting a commission. What are you getting? Will a short sale after a bankruptcy case and not having made mortgage payments for a long time make any different in your credit record. I've been told that there is no difference between freclosure or short sale in your credit report. Both result in a loss to the lender. You might get to stay at the house without paying a little longer... maybe or maybe not since the sale may be quick and the buyer wouod want to move in. After a foreclosure you might get "cash for keys" but in a short sale you give keys but get no cash. The real estate agents are going to hate me for this! (I do have a brokers license and sold houses when young so I know the real estate business is a lot tougher that most people think.)

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2 comments

Asker

Posted

My bankruptcy was discharged in 5/09 lender still has not foreclosed on my home do to SCRA. They told me that they will not foreclose until a year after my husband is no longer active duty. I told them that is five year.. they said then they will not foreclose for 6 years. They have been paying the property taxes each year as well. They said the only way to get my name off the deed before a foreclosure is to do a short sale. I'm thinking my debt has been discharged and if they won't foreclose then I should rent the home out.

Asker

Posted

The reason people should short sale rather than let the lender foreclose, is because per Fannie Mae & Freddie Mac guidelines, they can buy a home again in as little as 2-3 years VS 7 for a foreclosure. You shouldn't be directing people to let their property go without doing the due diligence on the repercussions. Ask an agent and they'll tell you why.

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