Guest post by North Carolina lawyer, John S. O’Connor

Especially in light of today’s distressed real estate market, the issue of debt forgiveness and associated tax liability has risen to the forefront. After a long battle to get a short sale or deed in lieu of foreclosure approved, many Americans are surprised when their tax bills shoot up. What they often don’t realize is that the IRS taxes forgiven debt as income. That’s right, although your lender may agree to forgive a considerable percentage of your mortgage debt, when they finally approve a short sale, they will also issue what is known as a 1099-C.

Form 1099-C

Creditors send a 1099-C form to you, the borrower, as well as the IRS when they’ve agreed to forgive or “write off” debt. The amount of debt listed on the 1099-C form is then imputed to you as income and increases your income tax liability in the year it is issued. Need an example?

Let’ s say the Smiths, like so many American homeowners, find themselves unable to afford their mortgage. They reach out to their lender and after jumping through numerous hoops, filling out countless forms and getting a buyer on the hook, the bank agrees to release its lien and approve their short sale. The Smiths owed $500,000 on their mortgage but the bank agreed to accept a sale price of $400,000 and forgive the remaining $100,000 balance. Great news right? Yes and no. Of course, it’s positive that the Smiths were able to avoid foreclosure and move on with their lives, but thanks to the 1099-C and the IRS, they have a surprise waiting when tax time comes around. Their taxable income just increased $100,000 (the amount forgiven by the bank). Even though the Smiths never pocketed this money, despite the fact that the loan proceeds were used entirely to finance the purchase of their home, the tax man will count the forgiven debt as income and send a bill.

The Mortgage Debt Relief Act

With underwater mortgages common throughout much of the nation, large tax events like this can cripple a family financially. For this reason, Congress passed the Mortgage Debt Relief Act of 2007, which allows homeowners to exclude up to two million dollars of forgiven debt from income if the debts were forgiven on the borrowers primary residence. Investment property and consumer debts, such as a credit card settlement, do not apply. For more information on the Mortgage Debt Relief Act, click here.

Debts Forgiven in Bankruptcy Are Not Taxable Events

In contrast to the tax treatment of debts forgiven through settlement, short sale or otherwise, debts forgiven in bankruptcy are not taxable events. Section 108 of the Internal Revenue Code explains that Title 11 (bankruptcy) cases are not subject to the traditional taxes on forgiven debt. Even after your bankruptcy discharge, you may still receive a Form 1099(c) from the IRS. If this happens, it is important that you fill out a Form 982 to tell the IRS that the debt was discharged in bankruptcy and, therefore, is not a taxable event.

Beginning with the 2011 tax return, reporting stock transactions has become significantly more complicated because of the new requirement for brokerage firms to track the purchase price of stocks acquired in 2011 and subsequent years and to include that information on the information-reporting document 1099-B.

For several years now, the IRS has required brokerage firms to report the gross proceeds from the sale of stocks and other securities on the Form 1099-B. But just knowing the proceeds from a security sale does not allow the IRS to verify the profit or loss reported by the taxpayer. So beginning with 2011 purchase transactions, brokers are required to track the price paid for the securities and include that information on the 1099-B when that particular security is subsequently sold.

This new system of reporting is not a solve-all solution for the IRS because it does not have the cost or basis information for securities acquired prior to 2011 or for securities acquired by gift or inheritance. Special adjustments are required for wash sales and when sales can be attributed to a prior purchase of the same security. Some brokers also may report on Form 1099-B the cost information, if known, for stocks purchased prior to 2011.

So that the IRS can use the new data to verify taxpayer profit or loss transactions attributable to purchases where the cost information is included on the 1099-B, the year’s transactions must now be broken down into six categories (the last two categories listed do not apply to stock transactions but may apply to sales of other capital assets):

• Long-term sales where the broker IS reporting the cost of the security
• Short-term sales where the broker IS reporting the cost of the security
• Long-term sales where the broker IS NOT reporting the cost of the security
• Short-term sales where the broker IS NOT reporting the cost of the security
• Long-term sales for which no 1099-B is issued
• Short-term sales for which no 1099-B is issued

To accommodate separating the transaction into the six categories, the IRS has provided a new Form 8949. A separate 8949 must be used for each category. This will allow the IRS to match and verify transactions where the brokerage firm supplied the cost basis.

Now that the IRS has profit or loss matching capabilities, it is important to correctly report the transactions as the IRS expects to see them. Failure to do so could lead to correspondence audits or even face-to-face audits.

Please call this office if you have questions relating to reporting your security sales this year.

Last month, we cautioned you about Internet scams aimed at tricking you into divulging information that will compromise your identity. That article described how Internet crooks disguise themselves as the IRS in an attempt to steal your identity.

The IRS is not the only disguise these scammers use. They pretend to be attorneys representing estates, lottery payouts, and other such subterfuge to draw you into their web.

Here are some good rules to follow:
1. If it’s too good to be true, it probably isn’t true.
2. If you receive a request for financial information via the Internet, it is probably a scam.
3. Never give your financial information over the Internet except when you are absolutely sure with whom you are dealing.

Take this example of how clever scammers can be. The latest scam is an e-mail requesting individuals to update their Intuit accounts. The e-mails claiming to be from Intuit ask recipients go to what is supposed to be an Intuit web site and update their tax return information. The e-mail includes an Intuit logo in the header. The scammer selected Intuit as the bait because so many individuals and small businesses use their Quicken and Quickbooks products.

So do not be fooled by this scam or any others that do not make sense. Do not be hasty; stop and carefully consider what you are doing before you click on a link to a potentially dangerous web site. These people are clever and can disguise their scams well.

If you ever have questions related to suspect e-mails, please call this office before responding to them.

Fans of AMC’s Mad Men rejoiced last week when Don Draper and his colleagues at Sterling Cooper Draper Pryce returned after a 17-month absence. The year is 1966, and change is in the air. Protestors oppose the war in Vietnam, and riots break out in Los Angeles, Cleveland, and Atlanta. The “kids” are listening to Dusty Springfield and the Rolling Stones. And the “grownups” are struggling to make sense of it all.

Mad Men creator Matthew Weiner is famed for his obsessive attention to period detail. (One episode featured junior executive Pete Campbell displaying a spectacularly ugly “chip and dip” platter he received as a wedding present — the very same chip and dip that Weiner’s own parents received for their wedding back in 1959.) So, fashion mavens predictably ooh’ed and ahh’ed over the period costumes, which have inspired today’s Banana Republic to introduce an entire Mad Men collection. Interior design aficionados ooh’ed and ahh’ed over Don and his new bride Megan’s stylish Upper East Side penthouse, with its white carpeting, sunken living room, and broad terrace. But tax professionals cheered loudest of all when partner Roger Sterling bribed media buyer Harry Crane $1,100 to give up his office for rising star Campbell. “That’s more than you make in a month,” Sterling whee died, “after tax!”

And really, who cares about Don’s suits, Megan’s dresses, or Roger’s cocktails, when we can spy on their money and their taxes?

Prices from 1966 seem comically quaint today. A gallon of gas cost just 32 cents. A dozen eggs cost 60 cents. Postage stamps cost a nickel. But there was nothing comical or quaint about taxes. Rates in 1966 started at 14% on income over $1,000 (roughly $7,000 in today’s economy), and rose to 70% on income over $200,000. 70% is a lot compared to today’s 35% maximum — but 70% was actually a big step down from the 91% top rate that Don and his colleagues faced just three years earlier in 1963. One small consolation — Don’s Form 1040 was quite a bit simpler. However, the “Expense Account Information” section at the bottom of page two includes an intimidating box to check — and separate instructions to follow — “if you had an expense account or charged expenses to your employer.”

And what about those three-martini lunches that play such a central role in lubricating Mad Men’s ensemble? Well, for starters, they sure cost less back then. In one scene from Season One, Don flips a waitress at a beatnik bar $5 to cover three martinis, plus tip. Today, those same martinis cost $14 each at The Roosevelt Hotel, where Don stays after separating from first wife Betty. As for tax breaks, under today’s rules, meals and entertainment are 50% deductible. That means, if you’re in the top 35% bracket, a dollar’s worth of martini saves 17.5 cents in tax. But back in 1966 — when doctors appeared in cigarette commercials and seatbelts were still optional in most cars — meals and entertainment were 100% deductible. That means that same dollar’s worth of martini saved up to 70 cents in tax. No wonder the partners spent more time getting soused than they did talking business!

If we had been practicing back in 1966, we would have looked just as good wearing the silhouettes of 1960s style. But Don Draper would have appreciated us more for the way we cut his taxes. There’s no need to get mad at the IRS if you have a proactive plan. And there’s no pesky two-drink minimum, either!