Application
of Section 108(a)(1)(E)(ii) to the Federal Housing Finance Agency’s (FHFA’s)
Principal Reduction Modification Program (PRMP) and the Home Affordable
Modification Program®(HAMP®)
Notice
2016-72
PURPOSE
This notice provides guidance on whether
qualified principal residence indebtedness is discharged “subject to an
arrangement that is entered into and evidenced in writing before January 1,
2017” within the meaning of § 108(a)(1)(E)(ii) of the Internal Revenue Code if,
before that date, a mortgage loan servicer sends a borrower-homeowner under the
Federal Housing Finance Agency’s (FHFA’s) Principal Reduction Modification
Program (PRMP) a notice in conjunction with a written Trial Period Plan (TPP)
or, for a borrower-homeowner in an active TPP, a separate notice in a written
opt-out letter outlining the terms and conditions of the permanent mortgage
loan modification following completion of the active TPP.
This guidance also applies to a TPP
under the Home Affordable Modification Program® (HAMP®).
BACKGROUND
To help distressed borrower-homeowners
lower their monthly mortgage payments, FHFA directed the Federal National
Mortgage Association (Fannie Mae) and the Federal Home Loan Mortgage
Corporation (Freddie Mac) to implement the PRMP, which offers mortgage loan
modifications to certain seriously delinquent, underwater borrower-homeowners
who are still struggling in the aftermath of the financial crisis, to help them
avoid foreclosure and stay in their homes. The PRMP is a targeted, one-time
offering for borrower-homeowners whose loans are owned or guaranteed by Fannie
Mae or Freddie Mac and who meet specific eligibility criteria.
For a borrower-homeowner to take
advantage of the PRMP, the mortgage loan servicer must solicit the
borrower-homeowner’s participation by sending the borrower-homeowner a notice
of PRMP eligibility in conjunction with a written TPP or, for a
borrower-homeowner in an active TPP, a separate notice of PRMP eligibility in a
written opt-out letter. The TPP and the PRMP notice set forth Trial Period and
PRMP Conditions that the borrower-homeowner must satisfy for there to be a
permanent modification of the mortgage loan. In the case of an active TPP, the
notice in the written opt-out letter outlines the terms and conditions of the
principal reduction feature of the loan modification. If the Trial Period and
PRMP Conditions are satisfied within a required time frame, then the
borrower-homeowner is offered a permanent modification of the terms of the
mortgage loan. If the borrower-homeowner executes and returns the loan
modification agreement, the mortgage loan is thereby modified. The modification
includes monthly mortgage payments that are lower than or equal to those under
the old mortgage loan and, generally, a principal reduction.
HAMP®, currently available through the end of
2016, offers a similar program to help distressed borrower-homeowners lower
their monthly mortgage payments. See
Rev. Proc. 2013-16, 2013-7 I.R.B. 488, which discusses the federal tax
consequences of principal reduction of a mortgage loan under the HAMP® Principal Reduction AlternativeSM.
APPLICABLE PROVISIONS OF LAW AND
ANALYSIS
Under § 61, except as otherwise
provided in subtitle A, gross income means all income from whatever source
derived, including income from discharge of indebtedness. See § 61(a)(12).
Under § 108(a)(1)(E), gross income does
not include any amount that (but for § 108(a)) would be includible in
gross income by reason of the discharge (in whole or in part) of a taxpayer’s
indebtedness if the indebtedness discharged is qualified principal residence
indebtedness that is discharged (i) before January 1, 2017, or (ii) subject to
an arrangement that is entered into and evidenced in writing before January 1,
2017.
Under §§ 108(h)(2) and 163(h)(3)(B),
qualified principal residence indebtedness is any indebtedness that is incurred
by a borrower to buy, build, or substantially improve the borrower’s principal
residence and is secured by that residence.
Qualified principal residence
indebtedness also includes a loan secured by the borrower’s principal residence
that refinances qualified principal residence indebtedness, but only to the
extent of the amount of the refinanced indebtedness. See §§ 108(h)(2) and
163(h)(3)(B)(i).
The maximum amount of discharged
indebtedness that a borrower may exclude from gross income under the qualified
principal residence indebtedness exclusion is $2,000,000 ($1,000,000 for a
married individual filing a separate return). See § 108(h)(2). Under § 108(h)(4),
if only part of the discharged indebtedness is qualified principal residence
indebtedness, then the exclusion applies only to the amount of the discharged
indebtedness that exceeds the amount of the loan (determined immediately before
the discharge) that is not qualified principal residence indebtedness.
If an amount is excluded from gross
income as a discharge of qualified principal residence indebtedness, the
taxpayer must reduce the basis of the taxpayer’s principal residence. See § 108(h)(1).
Congress extended the relief under § 108(a)(1)(E) to arrangements entered into
and evidenced in writing before January 1, 2017, in the Protecting Americans
from Tax Hikes Act of 2015, Pub. L. No. 114-113, 129 Stat 2242, 3065-66 (2015)
(PATH Act). Congress added this provision to protect a borrower-homeowner who
is in the process of obtaining a permanent modification of the mortgage loan
during 2016, although the permanent modification of the mortgage loan resulting
in discharge of indebtedness would not occur until after 2016. For example, a
borrower-homeowner who is in the process of obtaining a modified mortgage loan
under the PRMP during 2016, because the borrower-homeowner is either in an
active TPP or the mortgage loan servicer sends the borrower-homeowner a notice in
conjunction with a TPP, might not complete the modification process until after
2016. The addition of § 108(a)(1)(E)(ii) by the PATH Act is designed to
ensure that discharges of qualified principal residence indebtedness in these
situations qualify for exclusion from income under that section.
A discharge of indebtedness that does
not qualify for the qualified principal residence indebtedness exclusion in §
108(a)(1)(E) may qualify for another exclusion, such as the insolvency
exclusion under § 108(a)(1)(B) or the deductible debt exclusion under
§ 108(e)(2). For example, a cash basis homeowner generally would exclude
from income under § 108(e)(2) the discharge of any accrued but unpaid interest
on the mortgage for his or her principal residence to the extent the interest
would have been deductible if paid. See
Johnson v. Commissioner, T.C. Memo 1999-162, and Lawinger v. Commissioner,
103 T.C. 428 (1994). For more information about income from discharge of
indebtedness, the qualified principal residence indebtedness exclusion, the
insolvency exclusion, the deductible debt exclusion, and other exclusions from
gross income that may apply, see
Publication 4681, Canceled
Debts, Foreclosures, Repossessions, and Abandonments (for Individuals).
FEDERAL INCOME TAX CONSEQUENCE
Qualified principal residence
indebtedness is discharged “subject to an arrangement that is entered into and
evidenced in writing before January 1, 2017” within the meaning of §
108(a)(1)(E)(ii) if: (1) before that date, a mortgage servicer sends a
borrower-homeowner under the FHFA’s PRMP a notice in conjunction with a written
TPP or, for a borrower-homeowner in an active TPP, a separate notice in a
written opt-out letter outlining the terms and conditions of the permanent
mortgage loan modification following completion of the active TPP; (2) the
borrower-homeowner satisfies all of the Trial Period and PRMP Conditions; and
(3) the borrower-homeowner and servicer enter into a permanent modification of
the mortgage loan on or after January 1, 2017. A similar conclusion applies to
a TPP under HAMP®.
DRAFTING
INFORMATION
The principal author of this notice is Sheldon Iskow of the Office of Associate
Chief Counsel (Income Tax & Accounting). For further information about this
notice, contact Mr. Iskow at (202) 317-4718 (not a toll free call).