BILL ANALYSIS Ó AB 1393 Page A CONCURRENCE IN SENATE AMENDMENTS AB 1393 (Perea) As Amended June 15, 2014 2/3 vote. Urgency ----------------------------------------------------------------- |ASSEMBLY: | |(April 18, |SENATE: |34-0 |(June 30, | | | |2013) | | |2014) | ----------------------------------------------------------------- (vote not relevant) Original Committee Reference: INS. SUMMARY : Extends the tax relief for income generated from the discharge of qualified principal residence indebtedness (QPRI) through taxable year 2013, in modified conformity to federal law. The Senate amendments delete the Assembly version of this bill, and instead: 1)Provide that Internal Revenue Code (IRC) Section 108, relating to income from discharge of QPRI, as amended by Section 202 of Federal American Taxpayer Relief Act (FATRA), shall apply, except as otherwise specified. 2)Specify that IRC Section 108 applies to discharges of QPRI occurring on or after January 1, 2013, and before January 1, 2014. 3)Provide that no penalties or interest shall be due with respect to the discharge of qualified principal residence indebtedness during the 2013 taxable year, regardless of whether the taxpayer reports the discharge on his or her income tax return for the 2013 taxable year. 4)Make findings and declarations stating that the retroactive application of this bill is necessary for the public purpose of conforming to federal law, and thereby preventing undue hardship to taxpayers whose qualified principal residence indebtedness was discharged on and after January 1, 2013, and before January 1, 2014, and do not constitute a gift of public funds. 5)Provide that this is an urgency statute necessary for the AB 1393 Page B immediate preservation of the public peace, health, or safety. AS PASSED BY THE ASSEMBLY , this bill repealed three obsolete requirements that certain studies be undertaken. FISCAL EFFECT : According to the Senate Appropriations Committee, the Franchise Tax Board estimates that this bill would result in General Fund revenue losses of $35 million in 2013-14 and $4 million in 2014-15. COMMENTS : This bill was substantially amended in the Senate and the Assembly-approved version of this bill was deleted. This bill, as amended in the Senate, is inconsistent with Assembly actions. However, the provisions and subject matter of this bill have been heard by the Revenue and Taxation Committee. The author has provided the following statement in support of this bill: AB 1393 would extend the tax relief on forgiveness of mortgage debt by conforming California law to federal law. After a loan modification or short sale of a home, a bank can cancel or forgive thousands of dollars of an individual's mortgage debt. Federal and State income tax laws generally define cancelled debt as a form of income. Without additional legislation to exclude cancelled debt, many Californians may be taxed on "phantom" income they never received. Mortgage Debt Forgiveness. Background: In 2008, the Legislature approved SB 1055 (Machado), Chapter 282, which provided modified conformity to the Mortgage Forgiveness Debt Relief Act (MFDRA) for discharge of mortgage indebtedness in 2007 and 2008 tax years. In 2010, the Legislature enacted SB 401 (Wolk), Chapter 14, to provide homeowners even greater assistance. SB 401 not only extended the mortgage debt forgiveness provision until January 1, 2013, but also increased the amount of forgiven mortgage indebtedness excludable from taxpayer's gross income from $250,000 ($125,000 in case of married individual/registered domestic partner (RDP) filing separate return) to $500,000 ($250,000 in case of married individual/RDP filing a separate return). On January 2, 2013, AB 1393 Page C the Federal Government enacted FATRA as part of the "fiscal cliff" agreement. The FATRA extended the exclusion from gross income for cancellation of debt (COD) generated from the discharge of QPRI, as provided for by the MFDRA, for one additional taxable year, beginning on or after January 1, 2013. Why is COD taxable? Most individuals find the idea of taxing debt cancellation counter intuitive, but the practice reflects sound tax policy because it recognizes the fact that an individual's net worth has increased by the cancellation of debt. According to Commissioner v. Glenshaw (1955) 348 U.S. 426, the United States Supreme Court defined "income" as an accession to wealth that is clearly realized and over which the taxpayer has complete dominion<1>. When debt is cancelled, money that would have been used to pay that loan is now free to be used on whatever the taxpayer wants. Therefore, because certain assets have been freed, the taxpayer has experienced an accession to wealth. Additionally, under the rule of symmetry, a loan is not considered income to the borrower nor is it a deduction to the lender. A borrower's increased wealth when the loan is taken out is also offset by the obligation to pay the same amount. If the debt is cancelled, the symmetry is destroyed. The borrower is in a much better position after the debt is cancelled. Additionally, as noted by Debora A. Grier, Professor of Law of Cleveland State University, in her statement before the United States Senate Finance Committee, without this tax rule "the borrower will have received permanently tax-free cash in the year of the original receipt," i.e. the year in which the borrower received the loan. Even understanding the economic and legal policy for taxing COD, most individuals still find the taxation of cancelled home mortgage debt odd and even unfair. Non-Recourse Debt: Non-recourse debt is a loan that is secured by the pledge of collateral. If the borrower defaults, the lender can seize the collateral, but the recovery is limited to the collateral. In California, indebtedness incurred in purchasing a home is deemed to be non-recourse debt (Code of Civil Procedure (CCP) Section 580(b)) and, thus, generally first mortgages are considered to be non-recourse debt. Property that is foreclosed upon is not considered COD, even if the amount of the loan exceeds the fair market value (FMV) of the property. However, if a lender agrees to decrease the amount of the --------------------------- <1> Commissioner v. Glenshaw Glass Co., 348 U.S. 426, 431 (1955). AB 1393 Page D original debt to reflect the current value of the property secured by the debt, the transaction will be considered COD and subject to tax because the cancellation of non-recourse debt without a transfer of property creates COD income for the taxpayer in an amount equal to the amount cancelled by the lender. California law provides relief to a solvent homeowner who refinanced the first mortgage or took out a home equity loan or a home equity line of credit. California law provides relief to a solvent homeowner who benefited from a reduction of his or her outstanding debt in a "workout" situation with the lender where the homeowner retained the ownership of the home and the lender, instead of foreclosing on the home, reduced the outstanding debt to reflect the home's current value. In September 19, 2013, the Internal Revenue Service (IRS) sent a letter to United States Senator Barbara Boxer addressing the taxation of debt cancellation with respect to short sales. The IRS stated that a homeowner's obligation under the anti-deficiency provision of CCP Section 580(e) is non-recourse debt, meaning that the homeowner will not have cancellation of indebtedness income as a result of the short sale. The letter did not address loan modifications that result in principal forgiveness or foreclosures but provided substantial tax relief for those completing short sales. On April 29, 2014, the IRS released a second letter clarifying their initial interpretation of CCP Section 580(e). In the second letter, the IRS took a step back and explained that the statements made in their first letter were overly broad because CCP Section 580(e) applies to both purchase-money loans and non-purchase-money loans, and applies to property that may or may not be the taxpayer's principal residence; this is problematic because non-purchase-money loans subject to California's anti-deficiency statues generally appear to be recourse loans from their inception, potentially making forgiveness of those loans subject to tax. The second letter does maintain some relief for taxpayers completing short sales, but does so by relying on CCP Section 580(a)(3), which applies to purchase-money loans to acquire a principal residence. For federal tax purposes, purchase-money loans described in CCP Section 580(a)(3) are, from inception, non-recourse loans, and gains resulting from a short sale may be excluded from gross income. Because the second letter relied on non-recourse loans under CCP Section 580(a)(3), there are a number of short sales and foreclosures that may result in taxable income. Extending AB 1393 Page E the tax relief for income generated from the discharge of qualified principal residence indebtedness for the 2013 taxable year will provide tax relief to those individuals not specifically addressed in the two IRS letters. Insolvency: COD is not included in income to the extent the taxpayer is insolvent immediately before the debt is cancelled. A taxpayer is insolvent immediately before the COD to the extent that the amount of total liabilities exceeds the FMV of all assets immediately before the cancellation. This provision may be used in lieu of the qualified principal residence indebtedness exclusion. It is important to remember, however, that the exclusion applies only to the extent of insolvency. As an example, assume a taxpayer has discharged debt of $5,000. Before the cancellation of debt, the taxpayer had $10,000 in liabilities and the FMV of all assets was $7,000, meaning that before the cancellation, the taxpayer was insolvent to the extent of $3,000 dollars (total liabilities minus FMV assets). Therefore, the taxpayer may exclude $3,000 from income and include $2,000 as income of the discharged debt. Why exclude COD from Gross Income? Despite the economics of taxing COD, the rationale for excluding a cancelled mortgage from gross income has focused on minimizing hardship for households in distress. Individuals who are in danger of losing their homes, due in part to the economic downturn, should not be forced to incur the additional hardship of paying taxes on COD. Excluding COD from gross income also reduces the burden on a borrower who may be attempting to write-down the loan with their lender or a short sale. On a macroeconomic level, economists have argued that excluding cancelled mortgage from gross income may help maintain consumer spending, which may help prevent a recession. As noted earlier, one of rationales for excluding mortgage forgiveness from income is to help taxpayers remain in their homes. In some instances, a lender may be able to reduce the loan amount to the home's current FMV and allow the taxpayer to retain ownership of the home. For example, a taxpayer may owe $250,000 of residential debt; and after a modification, the lender reduces the loan down to $200,000 and forgives $50,000. Without an exclusion of the mortgage cancellation, the $50,000 would be subject to taxation. If the taxpayer is subject to a 25% tax rate, the tax liability would be $12,500. Assuming the reduction in loan was done because the taxpayer was facing AB 1393 Page F financial difficulty, incurring a tax obligation on COD may prevent the taxpayer from successfully remaining in the home. [See Congressional Research Service's report (CRS report) entitled Analysis of the Proposed Tax Exclusion for Cancelled Mortgage Debt Income, dated January 8, 2008, p. 2-8.] QPRI Includes Secondary Loans: The exclusion for COD income realized by the taxpayer from the COD applies as long as the discharged debt was secured by a personal residence and was incurred to acquire, construct, or substantially improve the home, as well as debt that was used to refinance such debt. Debt on second homes, rental property, business property, credit cards, or car loans does not qualify for the tax-relief provision. However, the definition of QPRI includes second mortgages, home equity loans, and home equity lines of credit used to improve the residence. Yet, home equity lines of credit could have also been used to finance consumption. Thus, existing law provides a financial incentive for taxpayers to claim the COD income exclusion for secondary loans even if the proceeds of those loans were used for personal consumption. Related Legislation: AB 42 (Perea) of the current legislative session, extends for one additional taxable year, in modified conformity to federal law, the tax relief for income generated from the discharge of (QPRI). AB 42 was held by the Assembly Appropriations Committee. SB 30 (Calderon) of the current legislative session, extends for one additional taxable year, in modified conformity to federal law, the tax relief for income generated from the discharge of QPRI. SB 30 was held by the Assembly Appropriations Committee. Prior Legislation: AB 856 (Jeffries), of the 2011-12 legislative session, would have conformed fully to the MFDRA as extended by the Emergency Economic Stabilization Act (EESA) to discharged debt occurring on or after January 1, 2010, and before January 1, 2013. AB 856 was held by the Assembly Revenue and Taxation Committee. AB 111 (Niello), of the 2009-10 legislative session, would have provided the same exclusion from gross income for mortgage forgiveness debt relief that is allowed under federal law for discharges occurring on or after January 1, 2007, and before January 1, 2013. AB 111 was held by the Assembly Revenue and Taxation Committee. AB 1393 Page G SB 401 (Wolk), Chapter 14, Statutes of 2010, amended the Personal Income Tax (PIT) Law to conform to the federal extension of mortgage forgiveness debt relief provided in the EESA, with the following modifications: 1) it applies to discharges occurring in 2009, 2010, 2011, and 2012 tax years; 2) the total amount of QPRI is limited to $800,000 ($400,000 in the case of a married individual or domestic registered partner filing a separate return; 3) the total amount excludable is limited to $500,000 ($250,000 in the case of a married individual or domestic registered partner filing a separate return); and, 4) interest and penalties are not imposed with respect to discharges that occurred in the 2009 taxable year. AB 1580 (Calderon) of the 2009-10 legislative session, was similar to SB 401. AB 1580 was vetoed. SB 97 (Calderon) of the 2009-10 legislative session, would have extended the provisions of PIT Law to allow a taxpayer to exclude from his or her gross income the COD income generated from the discharge of QPRI in 2009, 2010, 2011, or 2012 tax year. SB 97 was held on the Senate Revenue and Taxation Committee's Suspense File. SB 1055 (Machado), Chapter 282, Statutes of 2008, amended the PIT Law to conform to the federal Act of 2007, except that SB 1055 imposed certain limitations on the amount of QPRI and COD income eligible for the exclusion. SB 1055 specified that the exclusion applied to a discharge of QPRI that occurred in the 2007 and 2008 taxable years. AB 1918 (Niello) of the 2007-08 legislative session, was similar to SB 1055. AB 1918 would have modified federal law to allow the exclusion for up to $1 million/$500,000 of QPRI and did not impose any limitations on the amount of COD income. AB 1918 was held in the Assembly Revenue and Taxation Committee. Analysis Prepared by : Carlos Anguiano / REV. & TAX. / (916) 319-2098 FN: 0004159 AB 1393 Page H