RESTRUCTURING DEBT ON DISTRESSED REAL ESTATE

A.Alteration of Mortgage Debt

1.Cancellation or Reduction of Principal Amount of Mortgage Debt - Impact on Mortgagor

  1. General rule
  2. No Foreclosure
  3. Foreclosure
  4. Exceptions under Section 108

(1)Bankruptcy

(2)Insolvency

(3)Qualified Real Property Business Indebtedness

(4)Principal Residence Indebtedness

(5)Reacquisition of Debt

e.Reduction of Tax Attributes

f.Other Exceptions

g.Reporting

2.Cancellation or Reduction of Principal Amount of Mortgage Debt - Impact on Mortgagee

a.General Rule

b.Corporate Mortgagee

c.Non-Corporate Mortgagee

d.Treatment of Bad Debts

3.Significant Modification of Debt Treated as Sale or Exchange

a.General Rule

b.Alteration Treated as Modification

c.Significant Modification

B.Mortgagor's Tax Consequences on Foreclosure or Deed in Lieu Foreclosure

1.Recourse Debt and Foreclosure

2.Non Recourse Debt and Foreclosure

3.Loss of Foreclosure or Abandonment

4.Timing of Mortgagor's Tax Consequences

C.Mortgagee's Tax Consequences on Acquisition of the Property

1.Deed in Lieu of Foreclosure

2.Foreclosure

3.Exception: Seller Reacquisition Under Section 1038

4.Exception: Rescission of the Transaction

5.Reporting Requirements

D.Special Tax Issues in Restructuring Real Estate Partnerships/Limited Liability Companies

1.Reduction or Other Modification of Partnership Indebtedness

2.Admission of New Money Partner

3.Transfer of Encumbered Property

RESTRUCTURING DEBT ON DISTRESSED REAL ESTATE

  1. Alteration of Mortgage Debt.
  1. Cancellation or Reduction of Principal Amount of Mortgage Debt - Impact on Mortgagor.
  1. General Rule. In general, any reduction in the principal amount of the mortgage by compromise or negotiation, or other benefit of debt relief by modification of the mortgage terms -- in the absence of a mortgage foreclosure, voluntary conveyance of a deed in lieu of such foreclosure or abandonment -- will cause the mortgagor to recognize cancellation of indebtedness income, taxable at ordinary rates, to the extent of the cancellation. Sec. 61(a)(12), I.R.C. See United States v. Kirby Lumber, 284 U.S. 1 (1931); and B. F. Avery & Sons, Inc. v. Comm’r, 26 B.T.A. 1393 (1932). See also Republic Supply Co. v. Comm’r, 66 T.C. 446 (1976). See, generally, Tucker, The Real Property Owner in Default: The Income Tax Consequences, 3 J. Real Est. Tax. 5 (1975); and Axelrod and Fetter, Amount and Type of Taxable Gain on Real Estate Foreclosures Can Be Controlled by the Parties, 18 Tax. for Law. 146 (1989). The forgiveness of a debt is considered to occur when it becomes reasonable to assume that the debt will probably never be paid. See Bear Manufacturing Co. v. United States, 430 F.2d 152 (7th Cir. 1970); and FidelityPhiladelphia Trust Co. v. Comm’r, 23 T.C. 527 (1954).

(1)A remote possibility that the debt will be repaid later under a “net recovery value buyout/recapture” agreement, whereby the mortgagor agrees to pay all or a part of an otherwise discharged debt out of the proceeds from a sale of the mortgaged property within a certain period after inception of the agreement, does not prevent the mortgagor from recognizing cancellation of indebtedness income. See Jelle v. Comm’r, 116 T.C. 63 (2001).

(2)In fact, the Tax Court has held that cancellation of indebtedness income was not recognized by a taxpayer who would not accept forgiveness from his debts while he was living. Estate of Marcus v. Comm’r, 34 TCM 38 (1975).

(3)Where there is a contested liability, some courts acknowledge a contested liability (or disputed debt) exception where the settlement amount is considered the entire amount of debt and, as a result, any cancellation as a result of the settlement is not recognized for tax purposes. See Zarin v. Comm’r, 916 F.2d 110 (3rd Cir. 1990); and Preslar v. Comm’r, 167 F.3d 1323 (1st Cir. 1999). But see Jelle v. Comm’r, 116 T.C. 63 (2001).

(4)The release of collateral securing an obligation does not, in and of itself, create cancellation of indebtedness income, although it may be considered a sale or exchange under the significant modification rules. See Estate of Whitthorne v. Comm’r, 44 B.T.A. 1234 (1941). Likewise, the release of a guarantor of a loan, who is secondarily liable if the primary debtor defaults, does not result in cancellation of indebtedness income to the guarantor. Priv. Ltr. Rul. 7953004 (Sept. 7, 1979). However, a release of a guarantor that in reality results in the distribution of a disguised dividend will be considered income as such. See Tennessee Securities v. Comm'r, 37 TCM 1803 (1978), aff'd 674 F.2d 570 (6th Cir. 1982), where the Court held that, when a taxpayer guaranteed debt and then had his own controlled corporation satisfy the guaranty, the shareholder received a constructive dividend from his controlled corporation and thus realized income. See also Payne v. Comm'r, 75 TCM 2548 (1998); and Brickman v. Comm'r, 76 TCM 506 (1998).

(5)The release of a contingent liability generally does not result in cancellation of indebtedness income, on the theory that there was no true indebtedness to begin with. For example, the release of a contingent liability to contribute capital to a partnership does not give rise to cancellation of indebtedness income. See, for an extraordinary set of facts, Hunt v. Comm’r, 59 TCM 635 (1990).

(6)Generally, the forgiveness of indebtedness between family members will not create cancellation of indebtedness income because the forgiveness will be considered a gift. See Helvering v. American Dental Co., 318 US 322 (1943), as modified by Comm’r v. Jacobson, 336 U.S. 28 (1949). However, such cancellation will cause the mortgagee to recognize income where the indebtedness cancelled is an installment obligation. Sec. 453B(f), I.R.C.

(7)Where the debtor performs services in full or partial satisfaction of the debt (and the services have a fair market value equal to the debt satisfied), there is usually no cancellation of indebtedness income. However, the mortgagor will realize compensation income in the amount of debt satisfied, which is included in gross income. Reg. §1.61-12(a).

  1. No Foreclosure. Both recourse and nonrecourse debt that is cancelled or reduced, without forfeiture of the underlying property, will result in cancellation of indebtedness income to the full amount of the cancelled debt.
  1. Foreclosure. Where there is a foreclosure of the underlying property, the amount of cancellation indebtedness income will vary, depending on the type of debt.

(1)Recourse Debt. If the debt is recourse and the fair market value of the property encumbered by the recourse debt is greater than the basis in the property but less than the amount of recourse debt, the foreclosure results in bifurcated gain. Sale or exchange treatment occurs for the difference between the fair market value and the basis (sale component), and cancellation of indebtedness income treatment occurs for the difference between the full amount of the recourse note and the fair market value of the property (debt component). See Gehl v. Comm’r, 102 T.C. 784 (1994), aff’d 50 F.3d 12 (8th Cir. 1995), cert. denied 516 U.S. 899 (1995); see also FSA 200135002 (April 10, 2001). Thus, not all income from a transaction in which debt is cancelled necessarily results in cancellation of indebtedness income, but may result partially in gain from the sale or exchange of property.

(2)Nonrecourse Debt. If the debt is nonrecourse, there is no cancellation of indebtedness income. Instead, the entire amount of debt is treated as the amount realized for purposes of determining gain or loss. Reg. §1.1001-2 and Yarboro v. Comm’r, 737 F.2d 479 (5th Cir. 1984).

  1. Exceptions under Sec. 108, I.R.C. There are a number of exceptions to this general rule. Perhaps the most significant exception to the current recognition of cancellation of indebtedness income is Sec. 108, I.R.C. The most widely recognized exceptions under Sec. 108, I.R.C. provide that, where a taxpayer (1) is bankrupt under title 11, (2) is insolvent, (3) is other than a C corporation and realizes income from the cancellation of qualified real property business indebtedness, or (4) realizes income derived from principal residence indebtedness, a taxpayer may choose to reduce specific tax attributes (or the basis of certain property) rather than include cancellation of indebtedness income currently. In the 2009 Recovery Act, Pub L No. 111-5, Congress added a new exception to Sec. 108, I.R.C., which allows taxpayers who realize income with respect to the reacquisition of certain debt indebtedness during 2009 and 2010 to elect to include such income in gross income ratably over a five-year period starting in 2014. Sec. 108(i), I.R.C. All income must be classified as Sec. 61(a)(12), I.R.C. income to qualify for Sec. 108, I.R.C. treatment. Each one of these exceptions is discussed in detail below.

(1)Bankruptcy. No cancellation of indebtedness income results where the debt is discharged in a title 11 case. Sec. 108(a)(1)(A), I.R.C. (A “title 11 case” is a case under title 11 of the United States Code, but only if the taxpayer is under the jurisdiction of the court in such case and the discharge of indebtedness is granted by the court or is pursuant to a plan approved by the court. Sec. 108(d)(2), I.R.C.) By legislatively determining that a debtor coming out of bankruptcy is not burdened with an immediate tax liability, Congress preserved the bankruptcy law’s policy of giving such a debtor a fresh start.

(a)Individuals. For individuals, upon the filing of a title 11 case (chapter 7 or chapter 11), the individual debtor is deemed to transfer all of his or her assets to the bankruptcy estate. Such transfer is generally nontaxable, and the bankruptcy estate assumes the tax attributes of the debtor. See Sec. 1398, I.R.C.

(i)Transfers between the individual debtor and the bankruptcy estate are both treated in the same manner. Sec. 1398(f), I.R.C.

(A)A transfer of an asset by the debtor to the estate -- other than by sale or exchange -- is not treated as a disposition of the asset, and the estate is treated as the debtor would be treated as to such asset. Sec. 1398(f)(2), I.R.C. See Katz v. Comm’r, 116 T.C. 5 (2001).

(B)On termination of the estate, any transfer of an asset by the estate to the debtor -- other than by sale or exchange -- is not treated as a disposition of the asset, and the debtor is treated as the estate would be treated as to such asset. Sec. 1398(f)(2), I.R.C.

(C)Generally, the trustee may abandon back to the debtor any assets of the bankruptcy estate which the trustee considers burdensome or of inconsequential value to the estate, and thereby shift any tax consequences attributable to such property (including taxable gain from foreclosure sale) back to the debtor. 11 U.S.C. § 554(a). See In re Olson, 100 B.R. 458 (N.D. Iowa 1989), aff’d 930 F.2d 6 (8th Cir. 1991); and In re McGowan, 95 B.R. 104 (N.D. Iowa 1988). But compare In re A.J. Lane & Co., Inc., 133 B.R. 264 (D. Mass 1991).

(ii)The interest in a partnership of an individual debtor is treated the same as any other asset of the debtor. Sec. 1398(b)(2), I.R.C. See Williford, Bell and Standley, Uncertainty Clouds the Tax Consequences of the Bankruptcy of a General Partner, 10 J. Partnership Tax’n 26 (1993), for a discussion of the impact of a general partner’s bankruptcy on the partnership and the other partners.

(iii)The taxable income of the estate is computed in the same manner as for an individual, with the tax thereon due from the trustee, who is responsible for filing the income tax returns of the estate. Sec. 1398(c)(1), I.R.C.; see Holywell Corp. v. Smith, 503 U.S. 47 (1992), rev’g 911 F.2d 1539 (1st Cir. 1991).

(A)The tax table used is that under Sec. 1(d), I.R.C. -- married individuals filing separate returns. Sec. 1398(c)(2), I.R.C.

(B)If the estate does not itemize deductions, the basic standard deduction for the estate is the same as for a married individual filing a separate return. Sec. 1398(c)(3), I.R.C.

(iv)The taxable year of the debtor is determined without regard to the title 11 case, except that the debtor may elect to treat his taxable year as two separate taxable years, the first of which ends on the day before the date of the title 11 case, and the second of which begins on the commencement date of the title 11 case. Secs. 1398(d)(1) and (2)(A), I.R.C.

(A)This election must be made on or before the due date for the earlier of the two returns; and, once made, the election is irrevocable. Sec. 1398(d)(2)(D), I.R.C.

(B)The debtor cannot make this election if the debtor has no assets other than exempt property under Sec. 522 of title 11. Sec. 1398(d)(2)(C), I.R.C.

(v)The gross income of the estate for each taxable year includes the gross income of the debtor to which the estate is entitled under title 11, except where the gross income is received or accrued by the debtor prior to the commencement date of the title 11 case. Sec. 1398(e)(1), I.R.C.

(A)Any item included in the gross income of the estate is not included in the gross income of the debtor. Sec. 1398(e)(2), I.R.C. See Priv. Ltr. Rul. 9017075 (January 31, 1990), under which each of the debtor and the estate were allocated a portion of gain realized from the sale of the debtor’s residence, as to which the debtor claimed a homestead exemption under the Bankruptcy Code.

(B)The determination of whether or not any amount paid or incurred by the estate is allowable as a deduction or credit for income tax purposes or is wages for employment tax purposes is made as if the amount were paid or incurred by the debtor and as if the debtor were still engaged in the trades or businesses and in the activities the debtor was engaged in before the commencement of the title 11 case. Sec. 1398(e)(3), I.R.C.

(vi)As set forth in Sec. 1398(g), I.R.C. the estate succeeds to and takes into account the following items of the debtor (determined as of the first day of the debtor’s taxable year in which the title 11 case commences):

(A)The net operating loss carryovers determined under Sec. 172, I.R.C.

(B)The carryover of excess charitable contributions determined under Sec. 170(d)(1), I.R.C.

(C)Any recovery of tax benefit items to which the debtor would be entitled under Sec. 111, I.R.C.

(D)The carryovers of any credit and all other items which, but for the commencement of the case, would be required to be taken into account by the debtor with respect to any credit.

(E)The capital loss carryover determined under Sec. 1212, I.R.C.

(F)As to any asset acquired by the estate from the debtor other than by sale or exchange the basis, holding period and character such asset had in the hands of the debtor.

(G)The method of accounting used by the debtor.

(H)The unused passive activity losses and credits under Sec. 469, I.R.C. and the unused at-risk losses under Sec. 465, I.R.C. See the Regulations under Sec. 1398, I.R.C. relating to passive activity losses and credits (Reg. § 1.1398-1) and at-risk losses (Reg. § 1.1398-2).

(vii)On termination of the estate, the debtor succeeds to and takes into account the same items referred to immediately above. Sec. 1398(i), I.R.C.

(viii)If the debtor dies before the termination of the bankruptcy estate, then the debtor’s estate succeeds to and takes into account those items referred to above. FSA 200118003 (Dec. 26, 2000).

(ix)Administration expenses of the estate and fees and charges assessed against the estate are allowed as deductions to the extent not otherwise disallowed by the Code. Sec. 1398(h)(1), I.R.C.

(A)These items may be carried forward or carried back by the estate. Sec. 1398(h)(2), I.R.C.

(B)On termination of the estate, the debtor cannot pick up these deductions to the extent not utilized by the estate. Sec. 1398(h)(2)(D), I.R.C.

(x)Sec. 1398, I.R.C. does not apply if the chapter 7 or chapter 11 proceeding is dismissed. Sec. 1398(b)(1), I.R.C.

(b)S Corporations. In contrast to the filing of a title 11 case (under Chapter 7 or Chapter 11) by an individual which creates a separately taxable estate under Sec. 1398(b), I.R.C., the commencement of a title 11 case by a corporation does not create a separate entity for tax purposes. Sec. 1399, I.R.C. The commencement of a title 11 case does not terminate the corporation’s S election, nor does the bankruptcy of a shareholder of an S corporation terminate the corporation’s S status. See Sec. 1361(c)(3), I.R.C. The determination of whether the bankruptcy (or insolvency, discussed below) exception applies is determined at the corporate level.

(i)Any cancellation of indebtedness income that is excluded from the gross income of an S corporation will not result in an adjustment to the stock basis of such stockholder. Sec. 108(d)(7)(A), I.R.C.

(ii)The amount of such discharged income that is allocated to the shareholder will be reduced.

(c)Partnerships. The commencement of a title 11 case by a partnership does not create a separate entity for tax purposes. Sec. 1399, I.R.C. Instead the determination of whether the bankruptcy (or insolvency, discussed below) exception applies is determined at the partner level.

(i)Partners get a step-up in basis for cancellation of indebtedness income realized at the partnership level. TAM 9739002 (May 19, 1997). As a result, each partner’s allocable share of the partnership’s discharge of indebtedness income would be equal to the amount by which such partner’s relief of indebtedness under Sec. 752, I.R.C. exceeds the basis of such partner’s diluted interest, which amount will be taxable unless such partner is either bankrupt (or insolvent) in his individual capacity. See, generally, Sheffield & Maynes, Selected Tax Issues in Partnership Debt Restructurings, 68 Taxes 861 (1990). See also Voelker, Tax Aspects of Real Estate Partnership Debt Restructuring, 66 Taxes 342 (1988); Grudzinski, Evaluating the Many Options That Exist for Restructuring Partnership Debt, 9 J. Ptshp. Tax. 130 (Summer 1990); Schwidetzky, Partnership Taxation: Restructuring Partnership Debt--Life Is Change, 11 Va. Tax Rev. 523 (1992); Hesch, The Debt-for-Equity Exception to Discharge of Indebtedness Income for Partnerships, Part One, Vol. 9, No. 3, Tax. Mgmt. Real. Est. J. 39 (March 3, 1993), and Hesch, The Debt-for-Equity Exception to Discharge of Indebtedness Income for Partnerships,Part Two, Vol. 9, No. 4, Tax. Mgmt. Real. Est. J. 63 (April 7, 1993); and Ahrens, Restructuring Partnership Indebtedness: The Equity for Debt Exception in the Partnership Arena, 13 Va. Tax Rev. 329 (Fall 1993).

(ii)Procedurally, for partnerships that are subject to the TEFRA audit provisions of Secs. 6221-6233, the IRS held that income from the discharge of indebtedness is a partnership item to be determined at the partnership level in a unified partnership proceeding. Each partner’s share of the partnership’s cancellation of indebtedness income is also a partnership item. This is in contrast to the determination of whether the bankruptcy (and insolvency exception) is applicable, which is made at the partner level.

(iii)The income from the discharge of partnership indebtedness is allocated to the partners as a separate item under Sec. 702(a).

(iv)The determination of whether the bankruptcy or insolvency exception under Sec. 108, I.R.C. is applicable is determined at the partner level. Sec. 108(d)(6), I.R.C.

(2)Insolvency. No cancellation of indebtedness income results where the debtor is insolvent both before and after cancellation of the debt. Sec. 108(a)(1)(B), I.R.C. See also Dallas Transfer & Terminal Warehouse Co. v. Comm’r, 70 F.2d 95 (5th Cir. 1934); Danenberg v. Comm’r, 73 T.C. 370 (1979); Lakeland Grocery Co. v. Comm’r, 36 B.T.A. 289 (1937); Lind v. Comm’r, 65 TCM 3043 (1993); and In re Dobbs, 98-1 USTC ¶ 50,359 (E.D. Mich. 1998).

(a)Definition. “Insolvency” is defined as the excess of liabilities immediately before the discharge over the fair market value of assets immediately before the discharge. Sec. 108(d)(3), I.R.C. See also Estate of Marcus v. Comm’r, 34 TCM 38 (1975).

(i)The IRS takes the position (which the Tax Court has approved) that assets which are exempt from the claims of creditors under state law are nevertheless included for purposes of determining whether the taxpayer is insolvent under Sec. 108, I.R.C. See Carlson v. Comm’r, 116 T.C. 87 (2001); Priv. Ltr. Rul. 199935002 (May 3, 1999); F.S.A. 199932019 (May 10, 1999) (personal residence, bank accounts and securities held by the taxpayer and his spouse as tenants-by-the-entirety were included as assets of the taxpayer in the measure of insolvency); and Priv. Ltr. Rul. 199932013 (May 4, 1999) (Service revokes Priv. Ltr. Rul. 9125010). See also Marshall, The § 108 Insolvency Exception and Exempt Assets under State Law, 15 Tax Mgt Real Est J. 455 (1999). But see Estate of Marcus, supra, in which the Court held that assets exempt from the claims of creditors under state law are not to be included among the taxpayer’s assets in determining whether assets exceed liabilities; Priv. Ltr. Rul. 9125010 (March 19, 1991) (under which the Service concluded that the taxpayer's personal residence and other property exempt from creditors under state law should be disregarded in determining whether the taxpayer was insolvent); and Hunt v. Comm'r, 57 TCM 919 (1989).