Tag Archives: Income Taxes

Do you know what you need to be aware of when it comes to tax planning and bankruptcy?

The date of the first result found in a search of Google for “2015 tax year planning” is January 22^nd of this year. That is pretty early, considering that the end of the year is less than two months away as I write this. There is still time to make sure that you prepare before the opportunity to take actions that might help you this year is gone.

What do I need to be aware of when it comes to tax planning and bankruptcy?

Most important: file all of your tax returns on time if you possibly can.
Second: avoid under withholding or under payment of your quarterly tax obligations.
Third: if you are in a Chapter 13 plan, and you owe more than $1,500 in taxes for a year after the filing of the case, you pay your tax debt off quickly if you possibly can. If you cannot, please come in to see me for a consultation. Read on to learn more about the steps that we may decide to take later in this article.

In this article, we will primarily cover tax-planning advice that is applicable to most people, regardless of income or assets.

Higher Contribution Limits in 2015 are Accompanied by Limits on IRA and FSA Rollovers

Investopedia summarized “Five Tax Law Changes in 2015 You Need To Know” that apply to savings plans, including IRA, 401(k), and Flexible Savings Accounts for healthcare. Most of the news is good; limits have been raised on contribution to retirement savings plans. However, employees are now limited to a single IRA roll over in any twelve-month period. And If you have a balance in your FSA at the end of 2014 and you carry over $500 of it into 2015, you will be ineligible to participate in a HSA in 2015. This restriction does not apply to FSAs for specific uses, such as dependent care or dental expenses.

The IRS Lays out Changes in 2015

The article, “In 2015, Various Tax Benefits Increase Due to Inflation Adjustments”, lists changes in bullet point form, including tax rates, deductions, and exemptions. These inflation-based increases mean that you will keep more of your money, or be able to claim higher level of deductions than in previous years.

What do These Changes Mean? Ideas for Action this Year

While most of these changes are generally good news, they do not eliminate the requirement to file federal income taxes.

If you are in the midst of a bankruptcy filing, or if you are in a chapter7, chapter 13, or chapter 11 plan, then according to IRS Publication 908, Bankruptcy Tax Guide, the Bankruptcy Code requires a debtor to file an individual tax return, or request an extension. If this does not happen, the bankruptcy case can be converted or dismissed.
In addition, the bankruptcy trustee is required to file an estate tax return, form 1041, for the bankruptcy estate. However, this is usually not a concern to the vast majority of my clients, as it usually involves “big” cases
In the case of a Chapter 13 bankruptcy, the debtor pays disposable income into a monthly “plan” to pay creditors. In this case, you as the debtor are obligated to file your taxes on time, and, if you are directed to do so, to provide your returns to the trustee along with any refunds for payments to creditors during the bankruptcy repayment period.
There are a number of other helpful articles and resources on my website. This article, “How to Prepare and File your Federal Income Taxes for Tax Year 2014” contains a number of recommendations and resources that are as applicable today as they were when originally published on my site. If your concerns are more technical in nature—for example, on the tax consequences of property sales during foreclosure—I wrote a series of articles that are available on my site here.

Tax planning in bankruptcy can be complicated for some, but not most, of my clients. Remember the most important point I mentioned at the beginning of this article:failure to file your taxes on time can lead to new problems that you will have to deal with.

If you are in a Chapter 13 repayment plan with my firm, and you owe the IRS money for a year after the year in which you filed Chapter 13, you must file your return on time, and then come talk to me. We need to let the Chapter 13 Trustee know that you are facing an obligation, and that you going to see a professional to get into a tax repayment plan. For some people, we might even be able to lower the Chapter 13 plan payment a little while you are in a repayment plan for the taxes that you incurred.

If you find any of this confusing, please make an appointment to come in and discuss your situation. We are here to help you through your bankruptcy—before, during, and after the filing and completion of your case.

We’re With You. All the Way Back.

I have compiled a record of service to my clients that is based upon my determination to be of help to them long after their case is over. Most of the articles on my site and the newsletters I’ve authored contain financial planning advice, including those linked above. The newsletter archive is posted on my site in case you would like to review previous editions at a later time. I am both proud and humbled by the comments my clients say in person and the reviews they’ve freely left about my staff and I on the web. I am committed to helping my clients resume their lives on a solid footing—all the way back after bankruptcy.

Analysis of Discharge of Indebtedness Income vs. taxable debt forgiveness income

Short sales and tax consequences, part 4 of 7

In this post, we will review definitions of Discharge of Indebtedness Income vs. taxable debt forgiveness income. Note that the tax consequences of foreclosure or “short sale” of a commercial or rental property will likely be much different than I will cover in this article. In this series, we are focusing on your primary residence.

You could be facing foreclosure or short sale nearly anywhere in Western Washington. Wherever you live in the state, we can help you to become aware of and informed about the potential tax consequences of a “short sale” or foreclosure.

As discussed before, the $250,000 capital gains exclusion plays a large role in whether you have taxable income on your personal residence post short sale or foreclosure.
Note that this analysis is limited to your personal residence in which you have lived for at least two years. Properties that you received as a gift or inheritance can have a different result as well, so always consult your qualified tax professional in any distress sale situation.

The National Consumer Law Center’s publication “Foreclosure Prevention Counseling”, 2009 edition, available for $60.00 at www.consumerlaw.org, covers these topics in Chapter 9, pages 147-152.

Please note that the Discharge of Indebtedness Income is not necessarily always the same as taxable debt forgiveness income.

What do we mean by “Discharge of Indebtedness Income”? The IRS considers that a taxpayer has income from discharge of indebtedness when a lender forgives some or all of a debt. If the obligation to repay a debt is forgiven, then the government looks to see if that borrowed money now constitutes income to the borrower and, if so, how much. That income is taxable like any other income the homeowner receives. Nevertheless, as described in posts five, six and seven of this blog post series, there are a number of exceptions that may mean that discharge of indebtedness may produce no taxable income at all.

Let’s review three situations in which tax might be due, but rarely result in any taxable income.

First, if there is a foreclosure and the homeowner is not liable for the deficiency, that forgiveness of the deficiency is a discharge of indebtedness income.

Second, another example is a short sale where the house sells for less than the debt and where the lender has agreed to forego any deficiency.

Third, if a loan modification is made in which the lender forgave the principal of the debt or wrote the debt down. The amount of forgiven debt would also be discharge of indebtedness income.

Note that discharge of indebtedness income is very different and distinct from capital gains income. The example that follows below is from an earlier blog post (the third of this seven part series) to help illustrate difference. Please note that it is possible for a short sale to result in both a capital gain and also a discharge of indebtedness situation. Each of (1) capital gains and (2) discharge of indebtedness must be analyzed separately and independently.
Example: A single person completing short sale-illustration of development of capital gain and discharge of indebtedness income

$50,000 original purchase price of principal residence many years ago (no funds expended on improvements during ownership so as to increase basis)
$210,000 amount on mortgage after many rounds of refinancing to “pull out equity”
-$150,000 less: short sale price when homeowner falls into financial distress
$60,000 indebtedness not paid due to short sale
$100,000 capital gain ($150,000 short sale price – $50,000 acquisition price = $100,000)
$60,000 Discharge of Indebtedness Income (but Debtor may not have to pay tax on the $60,000 amount. In later blog posts in this series, we will work through defining and differentiating Discharge of Indebtedness Income vs. taxable debt forgiveness income)
$100,000 capital gain. No taxes are due because the capital gains exclusion is $250,000 for a single person on a principal residence.

OK, so our stressed out example short sale debtor above is off the hook for capital gains tax! But will he/she escape income tax on the $60,000 discharge of indebtedness income tax? I will discuss this situation further in future posts on this topic.

Analysis of a Short Sale of a Principal Residence

Short sales and tax consequences, part 3 of 7

In this post, we will review an example of the short sale of a principal residence. In some ensuing posts, I will review the definitions of “discharge of indebtedness income” and also “taxable debt forgiveness income” to follow up on this and earlier posts that discuss foreclosures and short sales. The tax foreclosure or short sale of a commercial or rental property will likely be much different that described in this post.

The $250,000 capital gains exclusion plays a large role in whether you have taxable income on your personal residence post short sale.

Note that this analysis is limited to your personal residence in which you have lived for at least two years. As stated earlier, investment, commercial and rental properties will have a much different result than discussed here-remember to always consult your tax professional. Properties you received as a gift or inheritance can have a different result as well, so always consult your tax professional.

Discharge of Indebtedness Income is not necessarily always the same as taxable debt forgiveness income, according to the NCLC manual “Foreclosure Prevention Counseling”, 2009 edition, on page 149. The National Consumer Law Center’s publication “Foreclosure Prevention Counseling”, 2009 edition, is available for $60.00 at www.consumerlaw.org.

Example: a single person completing a short sale

$50,000: original purchase price of principal residence many years ago (no funds expended on improvements during ownership so as to increase basis)
$210,000: amount on mortgage after many rounds of refinancing to “pull out equity”
-$150,000 less: short sale price when homeowner falls into financial distress
$60,000: indebtedness not paid due to short sale
$100,000 capital gain: ($150,000 short sale price-$50,000 acquisition price = $100,000)
$60,000: Discharge of Indebtedness Income (but Debtor may not have to pay tax on the $60,000 amount. Please read later blog posts in this series as we work through defining and differentiating “Discharge of Indebtedness Income vs. taxable debt forgiveness income)
$100,000 capital gain: no tax due, because the capital gain exclusion is $250,000 for a single person on a principal residence.

Please remember that my staff and I are here to help you, regardless of whether you are facing a foreclosure or short sale, anywhere in western Washington state.

Analysis of a Foreclosure Sale

“Short sales” and tax consequences, part 2 of 7

In this post, we will review examples of foreclosure homes and some sample tax impacts of foreclosure.

Regardless of where you are facing a foreclosure or short sale, you must be aware of potential tax consequences of a short sale or foreclosure.

The $250,000 capital gains exclusion plays a large role in whether you have taxable income on your personal residence post foreclosure.

Note that this analysis is limited to your personal residence in which you have lived for at least two years.

I refer to the National Consumer Law Center’s publication “Foreclosure Prevention Counseling”, 2009 edition, that is available for $60.00 at www.consumerlaw.org, in my analysis. The relevant section is Chapter 9, pages 147-152.

Discharge of Indebtedness Income is not necessarily always the same as taxable debt forgiveness income, according to the NCLC, on page 149.

Here are some “foreclosure” examples of taxable income related to the foreclosure of a principal residence. Note that this analysis would not apply if a home you rented out as a business was foreclosed. That situation is much stickier. You should see your CPA if you have a business or rental property foreclosed.

Example 1: a single person whose residence is foreclosed upon
$50,000: purchase price of home “way back when”
+$10,000: improvements to home like a new deck and changed shower to bathtub
$60,000: basis in home
The home was refinanced many times to “pull out” equity, so the debt against the home at the time of foreclosure was $325,000.
In addition, $5,000 in “cash for keys” was paid to the single person owner after foreclosure as an incentive to move out without damaging the property.
At the time of foreclosure, the house was appraised at $400,000 by the bank.
$60,000: basis (home purchase price plus $10k improvement)
$330,000: “sale” price (e.g. amount of debt $325k + $5k paid “cash for keys”
$270,000: capital gain ($330k-$60k = $270k)
$250,000: capital gain exclusion
$20,000: capital gain
$3,000: capital gain tax due ($20k x .15 = $3k tax due)

Note: in later posts in this blog, one of five exclusions to the obligation to pay $3,000 in capital gains tax may come into play
Example 2: a single person whose residence is foreclosed upon
$125,000: home acquisition price, no improvements made to increase basis
$132,000: debt owed on home at time of foreclosure, including foreclosure fees
$80,000: home fair market value at time of foreclosure as housing prices have collapsed
$45,000: capital loss-capital losses are not taxable, thus homeowner does not owe any tax due to foreclosure as a capital tax.
However, in this example, the single person foreclosed upon could potentially owe income tax (as no capital gain tax) as discharge of indebtedness income/taxable debt forgiveness income. More on this later.
In the succeeding blog posts in this seven part series, I will cover and explain how discharge of indebtedness income can result in taxable debt forgiveness income. I will also discuss the five exceptions/exclusions to tax on the income.

Remember, we are here to help you, regardless of where you are facing a foreclosure or short sale. If you need help, please contact us.

Short sales and tax consequences – analysis of a “normal” sale

Regardless of where you live in Washington state—whether you call Federal Way, Bremerton, Tacoma, Renton, Auburn, Tukwila, Lakewood, University Place, Puyallup, or Olympia home—you must be aware of potential tax consequences of a “short sale” or foreclosure.

The $250,000 capital gains exclusion plays a large role in whether or not you will have taxable income on your personal residence after foreclosure.

Please note that this analysis is limited to your personal residence in which you have lived for at least two years.

The NCLC (National Consumer Law Center) publication entitled “Foreclosure Prevention Counseling”, 2009 edition, Chapter 9, pages 147-152, covers this subject well. This publication is available for $60.00 at www.consumerlaw.org.

For example, Discharge of Indebtedness Income is not necessarily always the same as taxable debt forgiveness income, according to the NCLC, page 149.

To understand the problem of Discharge of Indebtedness Income/taxable debt forgiveness income, let’s examine a normal (non distress) transaction to determine whether the transaction does or does not result in taxable income.

Example #1 from the NCLC:

$100,000 purchase price of home
+ $30,000 add: improvements (new deck, addition, etc.)
= $130,000 new basis

$160,000 sale price
– $9,000 less: sales expenses
= $151,000 net sale price

$21,000 capital gain
$250,000 capital gain exclusion

$0 taxable gain
$0 taxable gain tax to be paid

Example #2 – single homeowner

$20,000 purchase price
+ $30,000 certain improvements
= $50,000 new basis

$600,000 sale price
– $40,000 less: sales expenses
= $560,000 net sales price

$510,000 capital gain ($560,000 – $50,000 = $510,000)
– $250,000 capital gain exclusion
= $260,000 taxable gain

$39,000 capital gains tax payable $260k x .15 tax rate = $39,000; assuming 15% tax rate on long-term capital gain)

The previous examples contemplate a “normal” sale–not a short sale or foreclosure.

In a future post, I will provide some examples of foreclosure/short sale operation.

Forgiveness of indebtedness – does this create taxable income, or is there an insolvency exception to IRS taxation?

Individuals facing financial difficulties often hear rumors from creditors and other sources that if their debts are “charged off” or otherwise “forgiven” by their creditors, the individual will receive an IRS Form from their creditor at the end of the taxable year that shifts the tax liability for the forgiven debt to the individual. Creditors and debt collectors excitedly cite to the Internal Revenue Code in support of their argument: 26 U.S.C. § 61(a)(12) states: “General definition.–Except as otherwise provided in this subtitle, gross income means all income from whatever source derived, including (but not limited to) the following items: … Income from discharge of indebtedness.” This “discharge of indebtedness” in lay terms simply means the writing off or forgiveness of outstanding debt. Thus, the general rule supports the creditors and may create tax liability.

However, creditors fail to inform you that there are major exceptions to the general rule that debt forgiveness is taxable income. Two major exceptions to this general rule are 1) if the debt is forgiven while the individual is in a bankruptcy case; and 2) if the debt is forgiven when the individual is insolvent. See 26 U.S.C. § 108(a) (1) (A) and (B), (“Exclusion from gross income.–… In general.–Gross income does not include any amount which (but for this subsection) would be includible in gross income by reason of the discharge (in whole or in part) of indebtedness of the taxpayer if– (A) the discharge occurs in a [bankruptcy] case, [or] (B) the discharge occurs when the taxpayer is insolvent.”) As is readily seen from the fact that there is one exception for those in bankruptcy and a separate exception for “insolvency”, an individual does not necessarily have to be in bankruptcy to be insolvent. Bankruptcy is simply a safe-harbor that creates a bright-line rule.

Yet, it is important to know that those desiring to raise the insolvency defense may have a fight on their hands. Insolvency is determined on a case-by-case basis and must be assessed as of the time the debt is forgiven. Therefore, if an individual is considered “solvent” at the time the debt was forgiven and that individual later becomes insolvent, the debt forgiveness is considered taxable income for which the individual will be liable. Unfortunately, any such taxes are probably not dischargeable in a subsequent bankruptcy. Before you attempt to negotiate with creditors or seek debt reduction/forgiveness, it would be well worth your while to seek the advice of a competent attorney. (Special thanks to Phoenix attorney J. Tyler Martin and his Phoenix colleagues for drafting and analysis used in this blog entry.)
Merry tax-free discharging!

James MaGee Attorney | Call James H MaGee, Attorney at (253) 383-1001 to Start Fresh and Begin Building Your Financial Future Now!

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