Income From Discharge Of Indebtedness

<div class="Section1"><table style="width: 100%;margin: 20px 0px;"><br /> <tbody><br /> <tr><br /> <td style="border: 1px solid #3b3b3b; padding: 5px;" width="170">Exclusion Type</td><br /> <br /> <td style="border: 1px solid #3b3b3b; padding: 5px;" width="208">Amount Excluded</td><br /> <br /> <td style="border: 1px solid #3b3b3b; padding: 5px;" width="161">Reduction of Tax Attributes</td><br /> </tr><br /> <br /> <tr><br /> <td style="border: 1px solid #3b3b3b; padding: 5px;" width="170">Bankruptcy</td><br /> <br /> <td style="border: 1px solid #3b3b3b; padding: 5px;" width="208">Unlimited</td><br /> <br /> <td style="border: 1px solid #3b3b3b; padding: 5px;" width="161">Yes</td><br /> </tr><br /> <br /> <tr><br /> <td style="border: 1px solid #3b3b3b; padding: 5px;" width="170">Insolvency</td><br /> <br /> <td style="border: 1px solid #3b3b3b; padding: 5px;" width="208">To the extent of insolvency</td><br /> <br /> <td style="border: 1px solid #3b3b3b; padding: 5px;" width="161">Yes</td><br /> </tr><br /> <br /> <tr><br /> <td style="border: 1px solid #3b3b3b; padding: 5px;" width="170">Qualified Farm Indebtedness</td><br /> <br /> <td style="border: 1px solid #3b3b3b; padding: 5px;" width="208">To the extent of &ldquo;adjusted tax attributes&rdquo; plus basis in qualified property</td><br /> <br /> <td style="border: 1px solid #3b3b3b; padding: 5px;" width="161">Yes</td><br /> </tr><br /> <br /> <tr><br /> <td style="border: 1px solid #3b3b3b; padding: 5px;" width="170">Qualified Real Property Business Indebtedness (elective)</td><br /> <br /> <td style="border: 1px solid #3b3b3b; padding: 5px;" width="208">Subject to two limitations:<p></p><p>1. To the extent amount forgiven exceeds FMV of secured property.</p><p>2. To the extent of basis of depreciable real property.</p></td><br /> <br /> <td style="border: 1px solid #3b3b3b; padding: 5px;" width="161">Reduction of basis of secured property.</td><br /> </tr><br /> <br /> <tr><br /> <td style="border: 1px solid #3b3b3b; padding: 5px;" width="170">Qualified Principal Residence Indebtedness</td><br /> <br /> <td style="border: 1px solid #3b3b3b; padding: 5px;" width="208">Up to $2,000,000</td><br /> <br /> <td style="border: 1px solid #3b3b3b; padding: 5px;" width="161">None, unless taxpayer retains the residence. In that case, the basis of the residence is reduced by the amount of discharged debt.</td><br /> </tr><br /> </tbody><br /> </table><br /> <p></p></div><br />

<div class="Section1">The tax concept of gross income is broad enough to include any economic benefit enjoyed by a taxpayer.<a href="#_ftn1" name="_ftnref1">¹</a> When a taxpayer borrows funds, he or she enjoys an economic benefit (i.e., to pay for a vacation, purchase property, etc.). As long as the taxpayer has a corresponding obligation to repay the loan, however, the economic benefit of the borrowing is not taxable. In other words, the taxpayer&rsquo;s obligation to repay the loan from his or her own funds offsets the economic benefit of the borrowing.<br /> <p style="padding-left: 40px"><em>Example:</em> Assume Asher borrows $10,000 to take a two-week European vacation. The loan bearing market interest is payable in full, two years later. Two years later, Asher repays the loan. Although the loan enabled Asher to pay for a vacation (clearly an economic benefit), his obligation to repay the loan with his own funds negates any inclusion in gross income.</p><br /> <p style="padding-left: 40px">On the other hand, if prior to repayment, the creditor forgives the debt, the rationale for not taxing the economic benefit of the borrowing is no longer applicable. This is because at that point, it is clear that the taxpayer is no longer required to repay the debt, so the amount of the discharge is treated like any other economic benefit enjoyed by the taxpayer and is included in gross income.</p><br /> <p style="padding-left: 40px"><em>Example:</em> Assume Asher borrows $10,000 to take a two-week European vacation. The loan bearing market interest is payable in full, two years later. Two years later, when the loan is due, Asher defaults. Rather than pursuing a legal collection action, the lender forgives the entire debt. As a result of the discharge, Asher is no longer obligated to repay the loan. Thus, the economic benefit of the use of $10,000 that Asher will never repay is includible in gross income.</p><br /> <br /> <div class="refs"><br /> <br /> <hr align="left" size="1" width="33%"><br /> <br /> <a href="#_ftnref1" name="_ftn1">1</a>.IRC &sect; 61(a).<br /> <br /> </div></div><br />

<div class="Section1">The Form 1099-C regulations that govern this issue may cause confusion. In the case of multiple debtors (who are subject to joint and several liability) with respect to the discharge of $10,000 or more of indebtedness, the regulations require the creditor to issue a Form 1099-C to each debtor. With respect to spouses (who are co-obligors), only one Form 1099-C is required to be sent. Moreover, on each Form 1099-C (if more than one is sent to multiple debtors), the full amount of the discharged debt is reported. So if multiple debtors each receive a Form 1099-C, there may be confusion as to how much of the discharged debt each debtor must report.<br /> <p style="padding-left: 40px"><em>Example</em>: Asher, Ashley and Joel are jointly and severally liable with respect to a $120,000 bank loan. Two years later, the bank forgives the loan and issues each co-obligor a Form 1099-C reporting the discharge of the entire $120,000 loan. If each co-obligor was required to report $120,000 as discharge of debt income, it would be triple counted.</p><br /> Although there are no regulations on point and no court has addressed this issue, in a chief counsel advice memorandum, the IRS stated that the full amount of discharge of debt should be allocated among the co-obligors (including co-obligor spouses) based on all the facts and circumstances. Thus, in the above example, if Asher, Ashley and Joel were equal partners, the $120,000 of discharged debt should be allocated among them equally.<br /> <br /> </div><br />

<div class="Section1">Yes. Although it may seem incomprehensible as to how a transaction that generates a tax loss can also trigger discharge of debt income, it is possible.<br /> <p style="padding-left: 40px"><em>Example</em>: Assume Asher purchased a commercial building totally funded with the proceeds of a $100,000 recourse loan secured by the building. Several years later when the principal amount of loan was still $100,000, Asher defaulted on the loan and the lender foreclosed on the property. At that time, the fair market value of the building was $80,000 and the adjusted basis of the building was $90,000 (original basis reduced by $10,000 of depreciation deductions). After crediting the fair market value of the property against the outstanding balance of the loan, the lender chooses to forgive the $20,000 shortfall for no consideration. Because the fair market value of the property was only $80,000, it is as if Asher sold the building to the lender for $80,000 which he, in turn, used as a partial repayment of the loan. Since the basis of the building was $90,000, Asher has a $10,000 taxable loss pursuant to IRC Section 165 ($90,000 basis minus $80,000 basis). The $20,000 remaining balance written off by the creditor would be considered discharge of debt income under IRC Section 61(a)(12).</p><br /> <br /> </div><br />

<p class="PA">The foreclosure of secured property with respect to recourse or nonrecourse debt has income tax consequences. In either case, the lender acquires the property from the debtor. Consequently, the lender is required to issue a Form 1099-A (a copy to the IRS and a copy to the debtor). The Form 1099-A provides relevant information the debtor needs to determine the income tax consequences of the foreclosure.<p class="PA">For example, entered in Box 1 is the date of the foreclosure (treated as the date of sale). In Box 2, the outstanding balance of the debt immediately prior to the foreclosure is entered. In Box 4 and Box 6, the fair market value and the description of the property are entered, respectively. In Box 5, the lender indicates whether the lender was personally liable, i.e., whether the loan was recourse. If the box is checked, it is recourse, if not, it is nonrecourse.</p><p class="PA">Importantly, in the case of recourse debt, the issuance of Form 1099-A does not mean the lender has forgiven any deficiency (the difference between the outstanding balance of the debt and the fair market value of the property). If subsequent to the foreclosure, the lender chooses to forgive the deficiency, a Form 1099-C should be issued (see Q <a href="javascript:void(0)" class="accordion-cross-reference" id="8115">8115</a>).</p></p><br />

<div class="Section1"><br /> <br /> As discussed in Q <a href="javascript:void(0)" class="accordion-cross-reference" id="8113">8113</a>, the discharge of debt is an economic benefit conveyed upon the debtor. In essence, a discharged debt is equivalent to receiving money (i.e., the amount borrowed that will never be repaid). The context in which the debt is discharged will determine how it is to be reported. Assuming the forgiven debt is a &ldquo;pure&rdquo; discharge, however, it is deemed to be &ldquo;income from discharge of indebtedness&rdquo; specifically includible in gross income pursuant to IRC Section 61(a)(12). For this purpose, pure discharge of debt requires an unconditional forgiveness for no consideration.<br /> <p style="padding-left: 40px"><em>Example</em>: Asher borrows $10,000 to take a two-week European vacation. Two years later, when the loan becomes due, Asher defaults. In lieu of pursuing a legal collection action against Asher, the lender forgives the entire loan. Because the forgiveness of the loan was unconditional for no consideration from Asher, the $10,000 forgiveness is considered to be &ldquo;income from discharge of indebtedness&rdquo; includible in gross income under IRC Section 61(a)(12).</p><br /> <br /> </div><br />

<div class="Section1">As illustrated by the following example, if there was partial consideration for the discharged debt, the transaction is bifurcated.<br /> <p style="padding-left: 40px"><em>Example</em>: Asher borrows $10,000 from Ashley to take a two-week European vacation. When the loan becomes due, in lieu of repayment, Ashley accepts a painting from Asher worth $8,000 that he purchased three years ago for $2,000 and forgives the balance of the loan ($2,000). In this case, it is as if Asher sold the painting to Ashley for $8,000, which Asher in turn uses to partially repay the debt. For tax purposes, Asher must include $6,000 of capital gain income ($8,000 minus $2,000 (basis in painting)) under IRC Section 61(a)(3). As to the remaining $2,000, since Ashley forgave this amount for no consideration, Asher must include it in gross income under IRC Section 61(a)(12). Bottom line: Of the $8,000 of total income, $6,000 is capital gain and $2,000 is discharge of debt income.</p><br /> <br /> </div><br />

<p class="PA">No. The rationale for taxing discharge of debt income is the debtor&rsquo;s tax-free enjoyment of the borrowed funds during the period he or she was obligated to repay the lender. Once the obligation is discharged, then it is appropriate to tax the previously enjoyed economic benefit. Conversely, a guarantor who has a contingent obligation to repay the debt (because the primary obligor defaults) never enjoyed the benefit of the borrowing. Therefore, the discharge of a guaranteed debt does not trigger discharge of debt income to the guarantor.</p><br />

<p class="PA">Yes, as discussed in Q <a href="javascript:void(0)" class="accordion-cross-reference" id="8122">8122</a>, IRC Section 108 provides a number of exceptions that render all or part of discharge of debt income otherwise includible under IRC Section 61(a)(12) as being nontaxable. None of those exceptions apply to gain included in gross income under IRC Section 61(a)(3).</p><br />

<p class="PA">The character of discharge of debt income is ordinary. So, unless one of the exclusions apply, (see Q Q <a href="javascript:void(0)" class="accordion-cross-reference" id="8133">8133</a> to Q <a href="javascript:void(0)" class="accordion-cross-reference" id="8138">8138</a>), the income is taxable at the higher ordinary income tax rates (up to 37 percent).</p><br />