A sale is a sale is a sale

 "Foreclosure is not a sale in normal terms, but it is still treated under tax code as a sale," says Stephen Trenholm, tax manager at Rucci Bardaro & Barrett in Boston. "The outstanding balance of the mortgage is compared with the basis in house. If that produces a gain, it's a taxable gain. If it's a nonrecourse mortgage, it's a capital gain."

That's right. Even though you aren't selling the house and the bank is, the IRS views the transaction as if you were the seller. That means you could owe taxes on the sale. The bad news comes directly from the IRS, via Publication 544.

Let's assume the example homeowner mentioned earlier has nonrecourse mortgage debt of $110,000 and an adjusted basis of $20,000 in the home, which has a fair-market value of $100,000. The owner has no ordinary tax liability for that $10,000 difference in his debt and the home's value. But when a nonrecourse mortgage is foreclosed and that debt is greater than the home's value, the property is treated for tax purposes as if it were sold for the balance of the mortgage.

That means this homeowner would have a $90,000 difference between the mortgage debt and his basis ($110,000 less $20,000) and that $90,000 is taxable capital gain from the "sale or other disposition" of the home. So even though the foreclosed-upon owner didn't get any cash from the transaction, he still owes taxes on what is known as phantom income. The only good news is that the taxes are collected at the lower 15 percent (or 5 percent for lower-income taxpayers) capital-gains rate.

If that same homeowner's mortgage was recourse debt and his lender canceled the $10,000 difference between the outstanding loan and the home's fair market value, the foreclosed-upon owner would owe higher, ordinary taxes on that forgiven 10 grand. In addition, his capital-gains bill would be based on $80,000 — the property's fair-market value of $100,000 less his $20,000 adjusted basis.

For some struggling homeowners, the taxes on forgiven debt or phantom income are all too real.

"If it's $10,000, that's a relatively small spread; $2,000 to $2,500 in federal and state taxes," Lanzaro says. "But it's not just the working man having this problem. Everybody's getting in over their head these days.

"If you have a $700,000 mortgage and the bank can only get $500,000 in a foreclosure sale, now you're talking about some tax liability."

And don't think the IRS won't find out. The agency has a mechanism to catch foreclosure sales. The lender is supposed to issue a 1099-C to alert the former homeowner and IRS of the canceled debt and, in certain cases, the market value of the foreclosed property.

There is one bit of good news for our hypothetical homeowner and others dealing with foreclosure-induced taxes. You can get out from under at least part of the IRS bill if you meet the homeownership tax-exclusion rules.

This popular tax break allows a single homeowner who sells his property under more favorable circumstances to exclude $250,000 in profit from taxes; the exclusion is $500,000 for married couples filing jointly.

The exclusion also applies in foreclosures. As long as the "seller," in this case the foreclosed-upon owner, lived in the home as his principal residence for two of the past five years, he also can avoid taxes on any capital-gain profit, phantom or real.

Two other circumstances offer tax relief in foreclosures, but both could cause other financial problems.

The Foreclosure Fraud Alert Website http://www.foreclosurefraudalert.com/

The Foreclosure Fraud Alert Blog  http://www.foreclosurefraudalert.com/fraudblog

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