Subprime lending controversy fuels familiar tax issues.

• Author: Wood, Robert W.

It is difficult to winnow the subprime lending controversy down to a single sentence, a single page, or even a single discipline. Its effects are pervasive. In this environment, few participants or observers are thinking about tax issues. In fact, as in so many other contexts, the tax impact of restructurings, loans, loan discharges, and legal settlements often is not considered until the year after the events occur, when taxpayers prepare their income tax returns. At that point it may be too late to do any tax planning, but there are a few fundamental tax points worth making. Multiple class actions have already been filed (and others are planned) involving lenders and their aggressive lending practices. Some of these cases will inevitably result in mortgages being discharged (in whole or in part) as part of the lawsuits' settlements.

Discharge of indebtedness (DOI) income (also sometimes called cancellation of indebtedness or COD income) is difficult to explain to clients. They understand that they will have a tax liability when they receive cash, and even when they receive something of value in noncash form (such as gold coins, land, etc.). But when it comes to the discharge or cancellation of debt, the client receives nothing tangible. Nevertheless, the Code is clear that a discharge of indebtedness usually produces gross income subject to tax (Sec. 61(a)(12)).

Example 1: S owes T $1,000. T eventually decides that he is not likely to collect the debt and decides to formally relieve S of the obligation to pay back the $1,000. When T does so, S has income.

Note that in this simple example, it does not matter whether the debt is relinquished because of friendship, fear of litigation, or virtually any other reason. When debt is discharged, it represents income to the person who will no longer have to repay the money.

Many borrowers have no idea that this tax rule exists, and many are surprised when they later find (either from an accountant when preparing a tax return or, even less happily, from the IRS on audit) that they have additional tax liabilities because of such discharge.

Exceptions

There are a few important exceptions to this rule, and these can (but do not always) ameliorate the negative tax impact of the DOI income.

Bankruptcy: Under Sec. 108(a)(1) (A), DOI income is excluded from gross income if the discharge of the debt occurs in a Title 11 bankruptcy case while the taxpayer is under the jurisdiction of the Bankruptcy Court and...