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Real Property Cancellation of Debt

In a year where real estate values are increasing, cancellation of debt on real property is not typically an issue or on the mind of many owners.

Real estate, of course, does have its downturns and in unfortunate circumstances, a company may need to go through a debt workout agreement. This can lead to the company receiving an IRS Form 1099-C, which can potentially lead to the debt forgiveness being included in gross income. However, there is an exclusion of income rule under Internal Revenue Code Section 108(c) that allows the taxpayer to avoid recognizing this income by reducing the taxpayer’s basis in the depreciable real property.

There are several steps that must be followed and limitations that must be addressed in order to properly exclude the income in the year of workout. The first step under Section 108(c)(3) is ensuring the indebtedness was incurred or assumed by the taxpayer in connection with real property used in a trade or business and is secured by such real property. Next, the taxpayer will need to address the limitations. There is an equity limitation where equity cannot be created in the property from having too much cancelled debt.  The amount excluded cannot exceed the outstanding principal immediately before the discharge over the net fair market value of the qualifying real property immediately before the discharge.

Once that limitation is satisfied, the taxpayer may elect to apply any portion of the reduction under Section 1017 to the basis of the taxpayer’s depreciable property. The term depreciable property means any  property of a character subject to the allowance for depreciation, but only if depreciation or amortization will be taken in the period immediately following such reduction. The reduction in depreciation is then allocated to the partners over the property’s remaining useful life.  Therefore, the longer the remaining life exists, the longer a taxpayer can defer the income. This election is made by filing Form 982, Reduction of Tax Attributes Due to Discharge of Indebtedness. If the taxpayer misses this election, the IRS has granted Section 9100 relief to make a late election under Section 108(c)(3)(C).

There are nuances when working through different entity types so be sure to speak with your trusted tax advisors at Withum to ensure the maximum tax benefits can be achieved.

Author: Christopher Suto, CPA, Real Estate Services Group Team Member  |  csuto@withum.com

Real Estate Services

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