Can you or the team answer a question about 1099 income on a short sale. I thought a home owner who sold via a short sale wasn’t liable for the difference with the Debt Forgiveness Act?

I’ve just received an approval from the bank on my short sale but they say the seller will be issued a 1099 for approx. $150K. She would do better with a foreclosure than have that type of tax burden.

Here is the answer by Deborah Beneke, CPA at Olsen Thielen

Regardless of whether the transaction is covered under the Debt Forgiveness Act or not , she will be issued a 1099. Further if the property goes into foreclosure, a 1099 will also be issued and she could still be liable for debt forgiveness income depending upon her circumstances.

However if she does qualify for the exemption available under the Debt Forgiveness Act, the amount of debt forgiveness income exclusion must be reported on Form 982 on her individual tax return. As a result, even though a 1099 was issued she will not have any tax liability.

Again, she must qualify for exemption. It must have been her principal residence two out of the last five years. AND the debt that is to be excluded must be qualified residence indebtedness. In other words, if she refinanced on the property and used the proceeds for other uses (for example to pay off credit cards), the debt forgiveness income would be taxable up to the amount used for other purposes.

If she can prove insolvency or is in bankruptcy, there would be no debt income either. Again a Form 982 needs to be filed. She should consult her tax professional to analyze her situation and determine if she would be subject to adverse tax implications. Renting out the property should not be a problem if it is short term. She will need to pick up net rental income (if any) and recapture any depreciation if there is a gain on disposal (unlikely).

When you go to sell your appreciated property, it would be a real waste to give away much of your hard earned equity because of capital gains taxes. A 1031 exchange appeals to only one kind of investor: The investor who wants a better investment without getting socked with unnecessary capital gains taxes!

Lets face it, real estate is an incredibly versatile investment. You can rent it, improve it, leverage it, cash out—you name it, someone has probably done it. But not all real estate is created equal. At some point you may want to cash in on your equity in a piece of investment property without actually getting out of real estate. By re-investing your equity from your old investment property into a new like-kind property, you can use a 1031 exchange to defer the taxes.

Why defer taxes?
Let’s start out with why you would want to defer taxes in the first place. Some investors might be thinking, “If I have to pay them, I may as well pay them now and get it over with.” Not necessarily!

Suppose you have a duplex rental unit across town. A four-plex down the street goes up for sale. You could sell your duplex, pay the capital gains tax, and then buy the four-plex down the street. But using a 1031 exchange will roll your profits into your next real estate property without the tax bite. The tax is not forgiven, just deferred indefinitely—but you conserved your equity by not having to pay taxes on your net profits. Buying the four-plex keeps your money working for you, which compounds and builds your wealth faster over time.

Another reason to defer tax is that there may well be a better time to pay tax. An important principle in tax planning is to defer taxes when you have a high income and pay taxes when you have a lower income. One popular strategy is to cash out after you retire when you are in a lower tax bracket.

A third reason to defer tax is to manage your estate planning. With appropriate estate planning, you can simply keep exchanging properties, which will defer the taxes on the gains indefinitely. Meanwhile, the properties can continue to generate income. Let your heirs worry about the tax on the gains! Defer, defer and die. Under the current tax rules, your heirs will get to “step up” the basis in the property, effectively wiping out the deferred tax liability that you carried with you thought your life. This step up in basis law may be changed in 2010.

Finally, the age-old important and fundamental principle of the “time value of money” tells us that that a dollar in your pocket today is worth more than a dollar you will receive tomorrow. That is because if you have a dollar today, you can use it today—you can invest it, build more wealth with it, which means tomorrow you will have your dollar plus a day’s growth or interest. That’s not a lot if we’re talking about an actual dollar, but it’s a lot if we’re talking about, say, a small apartment building you’ve owned for a few years.

Suppose that if you sell that apartment building, you would realize a tax liability of $100,000. If you were to roll that $100,000 into an investment that appreciated 4.5% annually (a pretty conservative rate of appreciation), at the end of three years, the $100,000 would be worth $114,117. The $100,000 today has a future value of $114,117. So what is the future value of $100,000 today? Asked another way, how much do you have to invest today at 4.5% to have $100,000 in three years? About $87,630. If you had the choice today between $87,630 and $100,000, you would choose the $100,000. If you had the choice three years from now between $100,000 and $114,117, you would choose the $114,117.

In other words, you would choose to preserve the entire gain on that apartment building.

Is a 1031 right for me?
As I said, a 1031 exchange is right only for the investor who wants a better investment. Now let’s look at a few examples.

Suppose you have a parcel of raw land. It’s doing nothing for you—just sitting there, not producing any income. You might want to exchange this property for another property, one that would provide you with some cash flow and deductions (such as depreciation).

Suppose you own a property whose appreciation has leveled off. Maybe you own some rental housing in a once-hot, now-cold neighborhood. You can do a 1031 exchange to acquire a property whose value will continue to grow.

Suppose you own a management-intensive commercial property that is becoming more trouble than it is worth. Use a 1031 exchange to shed the headaches and obtain a more worry-free property.

Executing a 1031 exchange requires faithful adherence to the IRC regulations. You want to work with a company that fully understands the parameters and deadlines of the regulation. Commercial Partners Exchange Company specializes in the 1031 exchange. We offer Qualified Intermediary services and can help you determine if a 1031 exchange is right for you.

Jeff Peterson is President of Commercial Partners Exchange Company. His company is a facilitator of standard deferred 1031 exchanges, build-to-suit construction improvement exchanges, reverse exchanges and aircraft personal property exchanges. Mr. Peterson is an adjunct professor at William Mitchell College of Law and a frequent speaker and CLE presenter throughout the Midwest for various business and professional organizations on numerous issues related to 1031 exchanges.  Jeff can be reached at 612-643-1031 or jeffp@cptitle.com or check out www.jeffpeterson.name or get more information on 1031 exchanges at www.1031podcast.com

I originally called this How to Sell Your House in 5 Days a Scam. Recently, I was doing some geek work on this blog and noticed that I get many searches from Google about How to Sell Your Home in 5 Days. It got me wondering why this post off all my posts would be popular, especially 8 months later.

It turns out there is actually a book written on how to sell your home in five days! It outlines how you advertise your house for 50% of the desired price, have an open house, and then start an auction and bidding war to get the sale price up to where you want it. All in five days. The writer claims he has sold 150,000 houses this way (yeah, right). Amazing.

Upon further review, I would not necessarily call this program a scam, but it is definitely on the strange side of real estate sales. I imagine it could work in the right neighborhood, with the right owner pushing the process, in the right market, with the right house, at the right price point, but I can’t imagine it working more than 10% of the time. I suppose it ranks up there with hiring a clown to entertain the children during an open house, so the parent can tour the house in peace.

Below are some of items that you must do prior to putting your property on the market:

1. Clean out that basement or garage! Are you still storing the stuff from the evicted tenant from 5 years ago?
2. Tune up the furnace and water heater. The mechanicals in an investment property are typically the most neglected part of the building. At least try and pretend you paid attention to them while you owned it.
3. Have your leases up to date with future lease end dates.
4. If you have any vacant units, fill them immediately!
5. Raise the rents to make your property show better cash flow.
6. Lastly, if the front steps are crumbling, fix them. This is often the first impression of the property maintenance history of your building!

While not an exhaustive list, doing these will actually help your investment property stand out from the competition.  And when trying to sell your investment property, every little bit helps!

As we enter the Expansion Phase, demand for all property (investment, single family, new construction, and even rental) begins to increase.  Eventually, demand will overtake supply and prices of properties and rent amounts will increase dramatically.  The supply of vacant apartment will decline dramatically and landlords will be receiving dozens of calls for each vacancy ad in the newspaper.  Inflation will start to enter into discussions and on-market time will decrease dramatically with the best homes being sold even before the sign goes in the yard.

Because it is impossible to know how long this feeding frenzy for property will last, sellers should sell early to avoid the downturn into the Equilibrium Phase.  If they bought during the Decline or Absorption phases, the sellers should experience high returns on their investments.  Buyers should stay away from paying the over-inflated prices and look for solid performing properties that can weather the upcoming storm of the next phase.

The previous Expansion Phase started in 2001 and lasted until about 2005.  It was market by double-digit growth of prices in many markets.  In Minnesota, we saw multiple offers at over list price on the 1st day a property went on the market.  Unfortunately, the future is difficult to predict.  If the Absorption Phase actually starts in late 2008, history shows us that we may not see the Expansion Phase until 2018.

In the Absorption Phase, all factors including prices, inventory, sellers & buyers motivation, economic climate, mortgage products, and even government regulation have changed from the previous two phases to make investment property attractive again.  The economy has recovered by adding jobs which will increase occupancy levels and driving rent higher. 

At the beginning of this phase, property prices will be at a rock bottom.  The number of properties for sale slowly decreases.  The government and lenders offer incentives to stimulate buying.  This phase is where the incredible profits are made as prices, rents, and occupancy all increase. 

Sellers that survived the Decline Phase are now able to find buyers for their properties, albeit at lower prices.  Most have realized that they can not command the unexplainable prices that they saw at the top of the market (in the Expansion Phase).

Previously the Absorption Phase started in 1991 and continued for 10 years until 2001.  Predicting the start and end of the current Absorption Phase is more difficult, but I believe we have not seen the bottom of the Decline Phase yet.  I hope we may see recovery and the start of the Absorption Phase as early as late 2008.  Unfortunately, you typically can only have 20/20 Hindsight and we may not know if my prediction is correct 3-5 years from now!

The Decline Phase is characterized by what Garrison calls a “psychological hysteria” where the down market feeds on itself.  Sellers now are unable to sell their properties, because they are unable or unwilling to take losses to get out.  Most buyers have retreated to the sidelines waiting until the market recovers, while some buyers prey on desperate sellers.

Occupancy levels and rents decline while foreclosures and defaults rise.  In response, the mortgage market tightens and the government tries to step in; both will ultimately make the situation worse.      

Looking back, we experienced the Decline Phase starting in 1985, accelerating in 1986 with the Tax Reform Act, and falling into full decline with the stock market crash in 1987.  We did not end the Decline phase until around 1991. 

In my last article, I stated that the Equilibrium Phase occurred recently in 2005-2006.  With the increasing foreclosure rates, the shake out in the mortgage industry, and the government trying to step in, I believe that we are fully now, in 2007, in the Decline Phase.  I hope that history does not repeat itself and we need to wait 4 years (until 2011) to see the end of this phase. 

In the Equilibrium Phase, the market has topped out and is beginning to cool off.  Job Growth and residential income property appreciation in that specific market have slowed to the national averages.  As the phase continues, the hangover and wild ride of appreciate of the Expansion phase are beginning to catch up with investment property owners. 

Sellers are too late to command the premium prices of just a short time ago.  Buyers begin to look for deep discounts on investment property to offset the lower appreciation the market is currently experiencing (which is low by saving account standards).  Investors leave the market (or refuse to get in) as the appreciation on property flattens out and they instead invest their money in the stock market and other investment vehicles.

I believe we saw this phase in 1980 when we saw interest rates in the double digits.  I also believe that we saw this phase more recently in 2005-2006 as we saw the market cool after the frenzied 2000-2004 run of multiple full-priced offers per house.  Although short, this phase precedes the Decline phase which we will discuss next.

After studying ten real estate markets, for a year, from around the country with different job growth and job losses, Garrison found that every market can be classified into one of four market phases:

Equilibrium phase Decline phase Absorption phase Expansion phase Click here for a larger view of the graphic.

This simple, but powerful concept allows us to explain not only the bust market of the 1980s, but the current market that we are experiencing today.  The other paradigm shift that Garrison’s research explained is that even though national (and international) forces affect the economy as a whole, every market around the country is actually on a different point of the above perpetual circular economic cycle.

Understanding the cycles and what to watch for (or what we have seen in the past) can change the way that you invest in real estate.  This tool will identify the best time to buy in a market and when to sell before the market begins to decline.

Starting next week, I will examine each of the 4 phases in depth and give you my predictions of where we are in the market and what you should be doing right now.

Read the below list and attempt to tackle at least one item per year. 

• Repaint the outside of the house.
• Repaint the front door and common hallway.
• Plant shrubs (trim existing ones) and plant flowers.
• Immediately before you sell, fertilize the grass and water constantly.
• Repair/replace any decks or outside stairs.
• Repair/remove/replace any fences.
• Paint the basement floor and laundry area.
• Add additional lighting in the basement area and/or laundry area.

These items will give your investment property more curb appeal and should allow you to sell your property faster and for more money.