Tax Consequences of a “Short Sale” of Real Estate vs. Foreclosure

This is part of an article written by Michael C. Gray, CPA in April, 2010 discussing the tax consequences of a “short sale” vs. a foreclosure.

Our nation is now seeing the effects of tightening mortgage credit after a liberal period. With increases in interest rates for adjustable rate mortgages and the conversion to amortization of principal for interest-only (or negative amortization) loans, home values for homes favored by subprime borrowers (and even other homes) are collapsing, and the debtors are either trying to “walk away” from their homes and allowing them to be foreclosed or are making “short sales.”

A “short sale” is selling the home for less than the mortgage balance and trying to get the lender to forgive the unpaid balance. This is a new use of the term, and is not the definition for this item in the Internal Revenue Code. In the tax law, a “short sale” is a sale of a borrowed item to be replaced at a future date, usually a security. The only case that I know about using the term “short sale” for this type of transaction is a 2008 decision, Stevens v. Commissioner.1 With the explosion of real estate short sales, we will undoubtedly soon see more cases with them.

A reason for debtors to consider a “short sale” instead of a foreclosure is to try to protect their credit history.

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