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 | | | | INCOME TAX ISSUES |
CAPITAL GAINS ON SALE OF RESIDENCE: The Federal capital gains rate for long-term (property held for more than 1 year) capital gains for the sale of real estate for most tax payers is 15% ( See Capital Gains Rates for a discussion of Federal capital gains tax rates, particularly the 28% rate for depreciation recapture ). Capital gains in California are taxed at ordinary income tax rates (up to 9.3%). For the sale of a personal residence, if it meets certain requirements (see the links below), up to $500,000 of the gain ($250,000 if filing as a single) may be excluded from the gain on sale calculation for both Federal and California tax purposes. .For a few good links to an explanation of the Federal tax laws explained in plain english relating to the sale of a personal residence, and the exclusions from gain available see the following links:
http://www.fool.com/taxes/2000/taxes000428.htm
http://www.bankrate.com/brm/news/real-estate/20041018a1.asp
For a link to the IRS regulations regarding the sale of a residence, see the following link:
http://www.irs.gov/pub/irs-regs/td_9152.pdf
Note that in this link, there is a discussion regarding exceptions to the general rule that you can only exclude all or some of the gain for a home sold every two years. There are exceptions if the home is sold due to: a change in place of employment, Health, or unforeseen circumstances (as defined ). Note that this results in a "pro-rated exclusion" depending on how many months the property was sold compared to the 2 year allowable period.
For California tax purposes, see the following link: http://www.ftb.ca.gov/individuals/faq/ivr/219.html
INCOME TAX BENEFITS OF HOME OWNERSHIP:The following link is a good summary of the tax benefits of home ownership, including a discussion of the tax deductibility of mortgage interest, property taxes, and other issues: http://www.finance.cch.com/text/c20s15d690.asp
To estimate the tax benefits of your proposed home purchase compared to renting, click here.You should use the "marginal" tax rate, which is the tax rate that your last dollar earned during the year is taxed at. Use the IRS tax table to estimate your marginal rate (look at the table and use the rate for your total taxable income you expect for the year) based on whether you are single, married or head of household. This will give you an estimate of the tax savings you will enjoy compared to if you were to take the standard deduction for federal purposes (the calculator includes points paid to the lender in the first year--your tax benefits in future years will be less). The program asks you to input the state tax rate. You should, of course, consult with your own tax professional in evaluating the tax ramifications of your home purchase and should not rely on these calculations in making your home purchase decision.
Federal Tax Credit for first time home buyers
For homes purchased on or after April 9, 2008 and before January 1, 2009 :
1)The tax credit is available for first-time home buyers only.
2)The maximum credit amount is $7,500.
3)The credit is available for homes purchased on or
April 9, 2008 and before January 1, 2009
4) Single taxpayers with incomes up to $75,000 and married couples with incomes up to $150,000 qualify for the full tax credit.
5) The tax credit works like an interest-free loan and must be repaid over a 15-year period.
For homes purchased between between January 1, 2009 and April 30, 2010:
1) The credit is 10% of the homes purchase price, limited to $8,000, and does not have to be paid back (unless the property is sold within 3 years - See #7 below).
2) The credit is limited to first time home buyers and principal residences. Any home that will be used as a principal residence will qualify for the credit, provided that if the home is purchased after November 6, 2009 it must be for a price less than or equal to $800,000. This includes single-family detached homes, attached homes like townhouses and condominiums, manufactured homes (also known as mobile homes) and houseboats.
3) The definition of first time home buyer is someone who did not own a principal residence within 3 years of the date of closing of the new purchase.For married taxpayers, the law tests the homeownership history of both the home buyer and his/her spouse.
4) The credit is only for a limited time. The contract date of the sale must be between January 1, 2009 and April 30, 2010. However, the law also allows home sales occurring by June 30, 2010 to qualify, provided they are due to a binding sales contract in force on or before April 30, 2010.
5) Income limits for phase out of Tax credit
a)To receive the full credit, for sales through November 5, 2009, single taxpayers must have earned (modified adjusted goss income) less than $75,000 and married taxpayers must have earned less than $150,000. The tax credit is phased out proportionally for taxpayers who exceed these income limits by up to $20,000. The credit is zero at an income level of $95,000 for single taxpagyers, and $170,000 for married taxpayers.To determine modified adjusted gross income (MAGI), add to AGI certain amounts such as foreign income, foreign-housing deductions, student-loan deductions, IRA-contribution deductions and deductions for higher-education costs.
b) For sales occuring after November 6, 2009, the income limit for single taxpayers is $125,000; the limit is $225,000 for married taxpayers filing a joint return. The tax credit amount is reduced for buyers with a modified adjusted gross income (MAGI) of more than $125,000 for single taxpayers and $225,000 for married taxpayers filing a joint return. The phaseout range for the tax credit program is equal to $20,000. That is, the tax credit amount is reduced to zero for taxpayers with MAGI of more than $145,000 (single) or $245,000 (married) and is reduced proportionally for taxpayers with MAGIs between these amounts.
6) The credit is a "refundable credit", which means the credit is deducted from the taxes owed, and if the net result is less than zero, the amount is refunded to the taxpayer. Therefor, even if you pay no taxes, you will receive the credit which will be paid to you. Home buyers must attach a copy of their HUD-1 settlement form (closing statement) to Form 5405 as proof of the completed home purchase.
7) The buyer must hold the property for at least 3 years or the tax credit wil have to be returned (exceptions are for sale due to death or divorce ).
8) Those people who took advantage of the $7,500 first time home buyers credit in 2008, must still pay the credit back over a 15 year period.
9) Two unmarried individuals buying a principal residence may allocate the credit "in any reasonable manner"
10) The law allows taxpayers to choose ("elect") to treat qualified home purchases in 2009 as if the purchase occurred on December 31, 2008 (or if in 2010, December 31, 2009). This means that the previous year´s income limit (MAGI) applies and the election accelerates when the credit can be claimed. A benefit of this election is that a home buyer in 2009 or 2010 will know their prior year MAGI with certainty, thereby helping the buyer know whether the income limit will reduce their credit amount. Taxpayers buying a home who wish to claim it on their prior year tax return, but who have already submitted their tax return to the IRS, may file an amended return claiming the tax credit using Form 1040X. You should consult with a tax professional to determine how to arrange this. Therefor, you can choose the year that yields the largest credit amount.
11)Taxpayers buying a home who wish to claim it on their prior year tax return, but who have already submitted their tax return to the IRS, may file an amended return claiming the tax credit using Form 1040X. You should consult with a tax professional to determine how to arrange this.
Federal Tax Credit for qualified move-up buyers ( not first time home buyers):
1) The tax credit is for qualified move-up/repeat home buyers (existing home owners) purchasing a principal residence after November 6, 2009 and on or before April 30, 2010 (or purchased by June 30, 2010 with a binding sales contract signed by April 30, 2010).and is equal to 10 percent of the home´s purchase price up to a maximum of $6,500. Purchases of homes priced above $800,000 are not eligible for the tax credit.
2) The law defines a tax credit qualified move-up home buyer ("long-time resident") as a home owner who has owned and resided in a home for at least five consecutive years of the eight years prior to the purchase date. For married taxpayers, the law tests the homeownership history of both the home buyer and his/her spouse. Repeat home buyers do not have to purchase a home that is more expensive than their previous home to qualify for the tax credit.
3) The income limits are the same as for the $8,000 first time home buyers credit described above for homes purchased after November 6, 2009.
4) The law allows taxpayers to choose ("elect") to treat qualified home purchases in 2009 as if the purchase occurred on December 31, 2008 (or if in 2010, December 31, 2009). This means that the previous year´s income limit (MAGI) applies and the election accelerates when the credit can be claimed. A benefit of this election is that a home buyer in 2009 or 2010 will know their prior year MAGI with certainty, thereby helping the buyer know whether the income limit will reduce their credit amount. Taxpayers buying a home who wish to claim it on their prior year tax return, but who have already submitted their tax return to the IRS, may file an amended return claiming the tax credit using Form 1040X. You should consult with a tax professional to determine how to arrange this. Therefor, you can choose the year that yields the largest credit amount.
5)Taxpayers buying a home who wish to claim it on their prior year tax return, but who have already submitted their tax return to the IRS, may file an amended return claiming the tax credit using Form 1040X. You should consult with a tax professional to determine how to arrange this.
California Tax Credit for Buyers of Newly Constructred Homes:
The California State Legislature passed a new budget in February 2009 that included a tax credit of up to $10,000 for the purchase of a newly constructed home. Only $100 million was allocated for this credit, however, and as of July 3, 2009, the Franchise Tax Board is no longer accepting new home credit applications as more than $100 milli8on in applications have been received.
.Unfortunately, this tax credit is not available for the purchase of an existing previously owned home. The following are the features of the new tax credit, but additional details must still be worked out:
1) The credit is equal to 5% of the homes purchase price, up to a maximum of $10,000
2) The credit is available from March 1, 2009 to March 1, 2010, however funds for the credit have now been exhausted.
3) The tax credit will be spread over 3 years.
4) The new home buyer must live in the home for at least 2 years. There is no repayment requirement unless the owner sells or ents the home within 2 years of purchase.
5) There are no income limitations for qualifying for the tax credit
6) There is no "first time buyer" restrictions.
7) The home must be a newly constructed home and never previously occupied.
8) If the home is purchased by more than one buyer, the credit may be allocated among them proportionately as to their ownership interest.
2010 California Tax Credit for Buyers of Homes:
The California Legislature in March 2010 passed legislation ( Bill number AB 183 ) establishing a new homebuyers tax credit, which the Governor has signed. California had previously passed a similar credit last year, but funding was limited to $100 million and was on a first come first served basis, and funds ran out last summer. The previous tax credit was limited to new construction, however the new credit can be used by first time homebuyers for new or existing homes or by other homebuyers for new homes.
The homebuyer tax credit begins May 1 and provides a $200 million pool of money to be split equally between first-time homebuyers and buyers of new homes. These funds are also limitied to the amount of funding, and as of the end of June the $100 million allocated for the first time homebuyer credit has been fully reserved. To see the remaining funds available for the new homebuyer credit, go to http://www.ftb.ca.gov/individuals/new_home_credit.shtml. The following are some details of the credit:
1)The credit is equal to 5% of the homes purchase price, up to a maximum of $10,000.
2)The home buyer must live in the home for at least 2 years.
3) Homes must be purchased outright or under an enforceable contract by Dec. 31 2010( and must close by August 1, 2011 )
4) Homebuyers must spread the amount of the allowable credit equally over three tax years, applying it against what they owe the state. ( Note that unlike the Federal home buyer tax credit, this is not a "refundable credit" and is only effective to the extent that the taxpayer owes state taxes ).If the available credit exceeds the current year net tax, the unused credit may not be carried over to the following year.
5) The home purchased must be a Qualified principal residence. "Qualified principal residence" means a single-family residence, whether detached or attached, that is purchased to be the principal residence of the taxpayer, is eligible for the homeowner's exemption under Section 218, and has either never been occupied or is purchased by a first-time home buyer. The Franchise Tax Board defines "single family residence " as any of the following: a single family residence, a condominium, a unit in a cooperative project, a houseboat, a manufactured home, or a mobile home.
6) "First-time home buyer" means any individual, or individual's spouse, who had no present ownership interest in a principal residence during the preceding three-year period ending on the date of the purchase of the qualified principal residence.
7) A taxpayer may, but is not required to, reserve a credit prior to close of escrow for the purchase of a qualified principal residence . To reserve a credit, the taxpayer and seller shall jointly sign and submit to the Franchise Tax Board a certification that they have entered into an enforceable contract. Since the funds will be allocated on a first come first served basis, it will be important to submit a reservation request right when a contract is executed, as you do not have to wait until the close of escrow.
9) For unmarried individuals or spouses filing separate returns, the tax credit may be allocated to each of the owners in proportion to their ownership interest.
10) No credit shall be allowed unless the taxpayer submits to the Franchise Tax Board, within two weeks after the date of the purchase of the qualified principal residence,a copy of the properly executed settlement statement and either one of the following:
(A) If the qualified principal residence has never been occupied, a certification by the seller, made under penalty of perjury, that the residence has never been previously occupied.
(B) If the qualified principal residence is purchased by a taxpayer who is a first-time home buyer, a certification from the taxpayer, made under penalty of perjury, that he or she is a first-time home buyer.
Energy Tax Credit for Home Improvements:
The new Stimulus Bill recently signed by President Obama in 2009 includes an expansion of the Federal Energy Credits for certain home improvements that are made that meet certain energy savings criteria. Highlights of the changes include:
The tax credits that were previously effective for 2009, have been extended to 2010 as well.
The tax credit has been raised from 10% to 30%.
The tax credits that were for a specific dollar amount (ex $300 for a CAC), have been converted to 30% of the cost.
The maximum credit has been raised from $500 to $1500 for the two years (2009-2010). However, some improvements such as geothermal heat pumps, solar water heaters, and solar panels are not subject to the $1,500 maximum.
The $200 cap on windows has been removed.
must be "placed in service" from January 1, 2009 through December 31, 2010
must be for taxpayers principal residence
maximum amount is $1,500 in 2009 & 2010 for most home improvements (geothermal heat pumps, solar water heaters, solar panels, fuel cells, and windmills are not subject to this cap)
for record keeping, save your receipts and the Manufacturer Certification Statement3, OR for windows, you can save the ENERGY STAR label from your new windows
improvements made in 2009 will be claimed on your 2009 taxes (filed by April 15, 2010) - use IRS Tax Form 5695 (2009 version) - it will be available late 2009 or early 2010
Credits are now available for home insulation. Home insulation cost credits were available for 2005 through 2007, but were not available in 2008.
If you are building a new home, you can qualify for the tax credit for photovoltaics, solar water heaters, small wind systems and fuel cells, but not the tax credits for windows, doors, insulation, roofs, HVAC, or non-solar water heaters. More.
A detailed chart with the amount and qualification criteria for taking the energy credit may be found at http://www.energystar.gov/index.cfm?c=products.pr_tax_credits
Federal 1031 Tax Free Exchange:
1031 Tax Free Exchange is available for property held as Investment Property and not as a Personal Residence (the following are excerpts from an excellent summary of 1031 exchanges at http://www.realtyexchangers.com/1031_Exchange_Information_Center/ProcedureManual.php
"Federal Tax regulations allow for the deferral of gains on the sale of real property, if the property is exchanged for a similar property meeting certain "like-kind" requirements. The exchange property must be identified within 45 days after you complete the escrow and transfer of title to the Relinquished (sold) Property, and the exchange must be completed within the earlier of a)180 days after the transfer of the Relinquished Property or b) the due date (including extensions) for your tax return for the taxable year in which the transfer of the Relinquished Property occurs. You may identify more than one property as Replacement Property subject to three rules: the 3-property rule, the 200% rule, and the 95 percent rule. You only have to satisfy one of these rules-not all of them. "
"The maximum number of replacement properties you may identify is three properties without regard to fair market values of the properties. You may identify any number of properties as long as their total fair market value does not exceed 200 percent of the total fair market value of all Relinquished Properties. You figure fair market value of Replacement Property as of the end of the identification period. You figure fair market value of Relinquished Properties as of the date you transfer them. You may identify any number of Replacement Properties if the fair market value of the properties actually received by the end of the exchange period is at least 95% of the aggregate FMV of all the potential replacement properties identified. The Replacement Property you wish to acquire needs to have a value equal to, or greater than, the adjusted sales price of the Relinquished Property. All proceeds from the Relinquished Property sale need to be invested in the Replacement Property. Replacement Property is identified only if it is designated as Replacement Property in a written document signed by you. This document must be hand delivered, mailed, telecopied or otherwise sent before the end of the identification period to a person (other than yourself or a related party) involved in the exchange."
"Section 1031 requires an actual exchange of properties. If you simply sell your property and reinvest the money in another property, you will not qualify for exchange treatment, even though it is a simultaneous close. The secret of a successful deferred exchange is avoiding receipt of money or other property during the transaction. If you receive the cash proceeds from the exchange of your property, you will not qualify for 1031 treatment. The deferred exchange Regulation provides a "safe harbor" that permits you to sell your Relinquished Property and acquire Replacement Property and avoid constructive receipt. This safe harbor is your written contractual agreement with a Qualified Intermediary."
"The Qualified Intermediary does not provide legal or specific tax advice to the exchanger, but will usually perform the following services:
- Coordinate with the exchangers and their advisors, to structure a successful exchange.
- Prepare the documentation for the Relinquished Property and the Replacement Property.
- Furnish escrow with instructions to effect the exchange.
- Secure the funds in an insured bank account until the exchange is completed.
- Provide documents to transfer Replacement Property to the exchanger, and disburse exchange proceeds to escrow.
A reverse exchange is a transaction in which the Replacement Property is acquired before the Relinquished Property is sold. This powerful tax planning procedure permits you to acquire the Replacement Property currently under favorable circumstances before you are able to sell the Relinquished Property. " There are two methods of completing a reverse exchange. In either case, the Qualified Intermediary is required to hold title to one of the assets involved in the exchange (either the Replacement Property or the Relinquished Property) during the exchange period for the exchange to fall within the IRS safe-harbor guidelines."Exchange First" is where the Qualified Intermediary buys the Replacement Property on behalf of the taxpayer and then simultaneously exchanges the Replacement Property for the Relinquished Property, therefor the Qualified Intermediary temporarily takes title to the Relinquished Property, until the Relinquished Property is sold to an independent third party, while the taxpayer takes title to the Replacement Property. "Exchange Last" is where the Qualified Intermediary takes title to the Replacement Property until the Relinquished Property is sold, at which time the exchange is made. The type of Reverse Exchange that an Exchangor uses typically depends on the way in which the Replacement Property is being purchased. If the Exchangor is using cash or private financing, either type of Reverse Exchange can be used. If the Exchangor is using conventional financing, an Exchange First is the preferred option because lenders seldom agree to have a third party, in this case the Qualified Intermediary, "on title" to the property securing the loan. The "like-kind" property requirements and the 180-day deadline of delayed exchanges also apply to Reverse Exchanges.
For an additional source of information on 1031 exchanges, use the following link:
http://www.realtor.org/libweb.nsf/pages/fg408#topicb
Withdrawing funds from a 401(k) or an IRA for a down payment on a home: To avoid penalties and taxes, you may borrow funds from your company's 401(k) for a down payment on a home, if the plan allows it. You may not borrow money from an individual IRA, and any withdrawals to use funds from an IRA would be subject to early withdrawal penalties as well as income taxes.
Debt Forgiveness - Federal and California Tax Issues
If you borrow money from a commercial lender and the lender later cancels or forgives the debt, you may have to include the cancelled amount in income for tax purposes, depending on the circumstances. When you borrowed the money you were not required to include the loan proceeds in income because you had an obligation to repay the lender. When that obligation is subsequently forgiven, the amount you received as loan proceeds is normally reportable as income because you no longer have an obligation to repay the lender. The lender is usually required to report the amount of the canceled debt to you and the IRS on a Form 1099-C, Cancellation of Debt.The amount of debt forgiven must be reported on Form 982 and this form must be attached to your tax return
The Mortgage Debt Relief Act of 2007, however, generally allows taxpayers to exclude income from the discharge of debt on their principal residence. Debt reduced through mortgage restructuring, as well as mortgage debt forgiven in connection with a foreclosure, qualifies for the relief. This provision applies to debt forgiven in calendar years 2007 through 2012. Up to $2 million of forgiven debt is eligible for this exclusion ($1 million if married filing separately). The exclusion does not apply if the discharge is due to services performed for the lender or any other reason not directly related to a decline in the home's value or the taxpayer's financial condition.
The Act applies only to forgiven or cancelled debt used to buy, build or substantially improve your principal residence, or to refinance debt incurred for those purposes. In addition, the debt must be secured by the home. This is known as qualified principal residence. If you refinanced, the debt is eligible but only up to the extent that the principal balance of the old mortgage, immediately before the refinancing, would have qualified. If you take out additional equity, that debt does not qualify for this exclusion.For instance, home equity lines of credit must have been used to make improvements to the home, and if used to buy a car would not qualify.
If the debt forgiven is not for your personal residence, the forgiven debt may qualify under the insolvency exclusion. Normally, you are not required to include forgiven debts in income to the extent that you are insolvent. You are insolvent when your total liabilities exceed your total assets. The forgiven debt may also qualify for exclusion if the debt was discharged in a Title 11 bankruptcy proceeding or if the debt is qualified farm indebtedness or qualified real property business indebtedness. If you believe you qualify for any of these exceptions, see the instructions for Form 982. Publication 4681 discusses each of these exceptions and includes examples.
California law generally conforms with federal law, the Mortgage Forgiveness Debt Relief Act of 2007, with the following exceptions:
(1) The maximum amount of acquisition indebtedness is reduced to $800,000 for couples filing jointly and $400,000 for individual filers;
(2) The maximum amount of debt relief income that can be forgiven is $500,000 for couples filing jointly and $250,000 for individual filers; and
(3) California's debt relief statute applies to property sold on or after January 1, 2007 and before January 1, 2013
In California, purchase money home loans are considered nonrecourse because lenders are prohibited from seeking a deficiency judgment against the borrower after a foreclosure sale of real property that secures a purchase money loan. CCP §580. A loan is nonrecourse if the lender's only remedy in case of default is to repossess the secured property (because the lender cannot reach the borrower's other assets to satisfy any shortfall). Under these circumstances, the unpaid principal balance of the mortgage is not seen as being "forgiven" or "cancelled" and does not cause the borrower to have cancellation of indebtedness income. Treas Reg §1.1001-2(a)(4)(i) and (c), Examples 7-8; IRS Letter Ruling 9302001. Thus, there would be no debt foregiveness in California for those who had used purchase money indebtedness to acquire or substantially improve a principal residence. Such homeowners would not have cancellation of indebtedness income to exclude because their loans were considered nonrecourse in the first place. ( Source: http://ceb.com/lawalerts/reflectionsloanforeclosures.asp?WT.mc_id=la_4415 Continuig Education of the Bar website )
The following comes from the California Franchise Tax Board website relating to taxation of foreclosed property and also applys to short sales :
"If the bank forecloses on a non-recourse mortgage, then the homeowner is treated as having sold the home for the amount of the outstanding debt. The difference between the outstanding debt and the homeowner's adjusted basis in the house is considered a gain or loss on the sale of the home. If the home is the taxpayer's principal residence, where they have lived for at least two of the past five years, the gain may be eligible for the gain exclusion on the sale of a principal residence. If the foreclosure results in a loss, the loss may not be taken since it resulted from the sale of a principal residence."
"Although forgiveness of a non-recourse loan resulting from either a foreclosure or a short sale does not result in COD ( Cancelation of Debt ) income, it may result in other tax consequences, like a reportable gain from the disposition."
"If the mortgage is recourse, such as a non-purchase money mortgage or a refinanced mortgage, any foreclosure may result in a gain on the sale of the house, and/or cancellation of debt income. The difference between the fair market value of the house and the homeowner's adjusted basis will result in a gain or loss on the sale of the home. To the extent the outstanding debt exceeds the fair market value of the house, the amount is treated as cancellation of debt income. Any gain on the portion treated as the sale of a personal residence may be eligible for the exclusion on the sale of a principal residence; however, as discussed above, the loss may not be taken on the sale. The portion that is treated as cancellation of debt income is taxed as ordinary income - subject to ordinary income tax rates. "
"If the loan is a recourse loan, then depending on the facts, you may have COD income, and potentially a reportable gain".
For a short sale, either for a recourse or non-recourse loan, the gain on sale would, of course, be based on the sales price of the loan.
A seller of a short sale property could be "insolvent" for tax purposes, i.e., overall debts exceed assets at the time the cancellation of debt income is realized. When a taxpayer is "insolvent," under both state and federal law, the tax liability for the cancellation of debt could be limited or eliminated. See How to use the Insolvency Exclusion from Debt Forgiveness Tax
For further information on other tax issues relating to foreclosures and short sales including both calculation of gain or loss as well as debt forgiveness issues , see the excellent article Tax Consequences of a "Short Sale" of Real Estate vs. Foreclosure
For a good resource on information relating to various Federal income tax issues affecting real estate go to http://www.real-estate-owner.com/index.html
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