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New York Attorney Stephen B. Kass

(212) 843-0050

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January 2, 2015 By Stephen Kass

Tax Consequences of Foreclosure

Foreclosure is one of the most frightening and demoralizing occurrences in a person’s life. At best, it is a massive setback to one’s credit; at worst, it can make your family homeless. On top of the emotional and mental toll, there can also be tax consequences after foreclosure, and there are also consequences if you experience foreclosure both before or immediately after a bankruptcy filing.

File Bankruptcy Before or After a Foreclosure?

The main question most people have is when to file: if you are certain that foreclosure will happen, is it better to file for bankruptcy before or after the foreclosure sale? The answer is almost always before, at least in today’s difficult economy.

The current economy and subsequently depressed housing market mean that more often than not when a house is sold, it is sold for less than the purchase price. This creates a deficiency, where the debtor still owes the difference between the foreclosure price and the mortgage. However, when someone files for bankruptcy after a foreclosure, the deficiency debt is wiped out. If you file before foreclosure, you may be forgiven for the deficiency, but you will still owe a tax debt to the Internal Revenue Service (IRS).

Tax Debt and Foreclosure

Even if your lender forgives any deficiency on your foreclosure, you may still owe money, but instead of to your lender, it will be to the IRS. The IRS treats a forgiven debt as a windfall, and windfalls are generally frowned upon. As such, windfalls are usually taxed as income – it is, according to the IRS, the money you received. However, there is one possible way to avoid such a tax bill – to qualify under the insolvency exception.

The insolvency exception is fairly straightforward – if you have more liabilities than assets at the time your debt was settled, you were insolvent and do not owe taxes on the income derived from the cancellation of the debt. The IRS is not interested in using time to get the proverbial blood from a stone. It may turn out to be difficult to define whether or not you were, in fact, insolvent at the exact time of the debt’s settlement, but the exception itself is clear cut – if you were insolvent at the time, you owe no tax on that debt; if you were not, you do. Keep in mind, however, that while income is taxable, debts discharged in some types of bankruptcy (most commonly Chapter 11) are not. It is not necessary to go into the question of exemptions unless you have experienced what the IRS considers a windfall.

There was, until recently, another possible way to exempt oneself from taxes due to cancellation of debt income. The Mortgage Debt Relief Act of 2007 was signed into law by President George W. Bush to help give homeowners a break at the height of the U.S. recession. It applied to forgiven mortgage debt only on one’s primary home and was in effect from 2007 to early 2014 when it expired without renewal. Currently, another similar bill is before Congress, but nothing has yet been approved.

A Professional Can Speed The Process

If you are going through foreclosure, sometimes the smartest move you can make is to call in a professional. The experienced attorneys at The Law Offices of Stephen B. Kass, P.C. have expertise in both bankruptcy and tax law, and we can put the full breadth of that knowledge to work for you. Call our New York City office today to discuss your options.

Filed Under: Foreclosure

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I highly recommend using Steve Kass as an attorney. I had a serious issue with the IRS involving real property, a company I built and sold, and multiple years of taxes which were unfairly and incorrectly assigned to me and had been hanging over my head because my efforts to negotiate...

Sean

Mr. Kass and his professional office staff helped me through every step of the way which without his expert guidance would not have been successful. Mr. Kass was able to a access my situation quickly and advise me. I highly highly recommend making an appointment with Mr. Kass

Vivian

I consider myself very lucky to have found Stephen B. Kass last year. We were drowning in credit card debt and were on the verge of filing bankruptcy. Mr. Kass was able to negotiate with all of our creditors and reduce the balances SIGNIFICANTLY. Within one year we are debt free

Alexandra

Stephen and legal staff provided superb, accurate, and detailed financial analysis. Stephen has an exquisite knowledge of financial planning and tax law, and was able to make tailored, individualized recommendations that have helped me tremedously with regard to long-term financial planning and resolution of tax issues. Office staff are skilled

John

I had a great experience with Stephen Kass. He took legally complicated case from another attorney and resolved it. Years later, when his assistance was needed, he responded right away, remembering every detail of the case. He is an expert in his field and great person to work with.

Victor

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