Short Sale Tax Implications

Find out if you'll have tax liability for mortgage debt that your lender forgives after a short sale.

If you're far behind in your mortgage payments, a short sale might sound like the perfect solution to avoid foreclosure. But if you complete a short sale, you could be subject to an income tax hit. Read on to learn more about when short sales result in tax liability and when you are exempt from paying such taxes.

What's a Short Sale?

A short sale is when a homeowner sells his or her home for less than the total debt balance remaining on the mortgage and the lender agrees to accept the proceeds from the sale in exchange for releasing the lien on the property. Short sales are one way for borrowers to avoid foreclosure. (Learn more about how short sales work.)

After a short sale, the lender might decide to come after you for a deficiency judgment. Or it might forgive the deficiencyin which case you might owe taxes. (Learn more about short sale deficiency judgments.)

When the Lender Pursues a Deficiency

In a short sale, the sale price is “short” of the amount you owe to the mortgage lender. The difference between the total debt owed and the sale price is the “deficiency”.

Example. Say you are approved by your lender to sell your property for $200,000, but you owe $250,000. The deficiency is $50,000.

In many cases, the lender can seek a personal judgment against you after the short sale to recover the deficiency amount. Generally, once a lender gets a deficiency judgment, it may collect this amount—in our example, $50,000—from the borrower through normal collection methods, like garnishing the borrower’s wages or levying the borrower’s bank account. (To learn more about techniques the lender can use to collect a deficiency judgment, see How Creditors Enforce Judgments.)

If the Lender "Forgives" the Deficiency: Tax Implications

On the other hand, the lender might choose to forgo pursuing a deficiency judgment, forgive the deficiency amount, and issue you a 1099-C (“Cancellation of Debt”) form instead.

“Cancellation of Debt” as Taxable Income

If a short sale results in a deficiency, but the lender decides not to come after you for payment and forgives the debt, this means you are no longer under an obligation to repay the lender. The lender is then usually required to report the amount of the canceled debt to you and the IRS on a Form 1099-C. If this occurs, you might have to include the forgiven amount as income for tax purposes.

Example. As in the example above, let’s say you complete a short sale by selling your property for $200,000, but you owe the lender $250,000. The deficiency is $50,000. If the lender decides not to try to obtain a deficiency judgment and issues a 1099-C instead, then you have received a cancellation of debt in the amount of $50,000. This is generally considered taxable income to you.

Mortgage Forgiveness Debt Relief Act of 2007

You might be able to escape tax liability for a short sale deficiency if you can meet the requirements under the Mortgage Forgiveness Debt Relief Act of 2007. This Act allows taxpayers to exclude certain types of forgiven debt from their taxable income, as long as the forgiven debt was used to:

  • buy, build, or substantially improve a principal residence, or
  • to refinance debt incurred for those purposes.

This exclusion only applies to debt that was forgiven in 2007 through 2017, or to debt that is discharged in 2018 if there was a written agreement entered into in 2017. But the exclusion doesn't apply to loans for other kinds of real estate, like second homes, or loans not used for real estate, like if you took out a home equity loan and used the proceeds to pay off credit card debt.

You can exclude $1 million of forgiven debt, or $2 million if you are married and filing a joint tax return.

Other Ways to Escape Tax Liability for a Deficiency

There are some other situations when cancelled debt is not taxable, including:

  • Debt discharged in bankruptcy. Debts discharged through bankruptcy are not considered taxable income.
  • Insolvency. If you are “insolvent” (meaning your total debts are more than the fair market value of your total assets) at the time that the debt is canceled, the forgiven debt might not be taxable.

Additional Tax Assistance

Tax laws are complicated and there are exceptions and exclusions that might save you from having to report canceled debt as part of your income. If you have tax questions, consider talking to a tax attorney. If you can't afford an attorney, you might qualify for free or low-cost assistance from a Low Income Taxpayer Clinic.

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