As the presidential debates start to heat up, there will be comments about the Administration’s Health Care Bill. We are again getting many questions about a possible 3.8% tax on home sales that some claim is in the bill. To answer these questions, we have decided to re-run a blog post we did last year.We have received many questions about a possible 3.8% tax which will be put on home sales beginning in 2013. We want to do our best to clarify this situation for everyone. We are not accountants and give you this information just as a simple answer to the misconception. Understand that, when it comes to IRS regulations, you should check with your accountant for the most accurate and up-to-date information.

A little history on the confusion

Fact Check.org explains it this way:

The truth is that only a tiny percentage of home sellers will pay the tax. First of all, only those with incomes over $200,000 a year ($250,000 for married couples filing jointly) will be subject to it. And even for those who have such high incomes, the tax still won’t apply to the first $250,000 on profits from the sale of a personal residence — or to the first $500,000 in the case of a married couple selling their home.

We can understand how this misconception got started. The law itself is couched in highly technical language that only a qualified tax expert can fully grasp. (This provision begins on page 33 of the reconciliation bill that was passed and signed into law.) And it does say the tax falls on “net gain … attributable to the disposition of property.” That would include the sale of a home. But the bill also says the tax falls only on that portion of any gain that is “taken into account in computing taxable income” under the existing tax code. And the fact is, the first $250,000 in profit on the sale of a primary residence (or $500,000 in the case of a married couple) is excluded from taxable income already. (That exclusion doesn’t apply to vacation homes or rental properties.)

The Joint Committee on Taxation, the group of nonpartisan tax experts that Congress relies on to analyze tax proposals, underscores this in a footnote on page 135 of its report on the bill. The note states: “Gross income does not include … excluded gain from the sale of a principal residence.”

And just to be sure, we checked with William Ahern, director of policy and communications for the nonprofit, pro-business Tax Foundation. “Some home sales would see a tax increase under this bill,” Ahern told us, “but it would have to be a second home or a principal residence generating [a gain of] more than $250,000 ($500,000 for a couple).”

Simple Explanation: 

The following simple explanation comes from midiShaw:

The tax will affect those sellers of real property who will be otherwise taxed on capital gains under current tax laws. Under current laws, if you sell your primary residence and meet the ‘time ‘ criteria, you are exempt up to $250,000 or $500,000 (filing individually or jointly).  Any amount realized OVER that amount is taxable under current tax schedules based on income.  As such, this new tax will apparently be added to the current capital gains tax burden IF your income is over $200,000/$250,000 (filing individually or jointly). For those selling second homes and investment properties, the tax, once again, will be applied to the amount of gain realized.

Detailed Explanation:

The following also comes from midiShaw in a comment to the above answer.

Beginning in 2013, the national health care reform legislation that became law in March, 2010, imposes a new 3.8 percent tax on certain investment income. The new tax will apply to single filers with incomes over $200,000 and married taxpayers with incomes over $250,000. Under the law, the investment tax provisions in Chapter 2A of the Internal Revenue Code are placed under the heading “Unearned Income Medicare Contribution.” In general, this new Medicare tax will apply to investment income that is subject to income tax, which includes capital gains. Pursuant to IRC Section 1402 (C)(1)(A)(iii), the investment income to which this new tax applies includes “net gain” (to the extent taken into account in computing taxable income) attributed to the disposition of property that qualifies as a capital asset under Section 1221 (capital gains), as well as gains on other property that are considered part of ordinary income.

We offer this just as an explanation. Remember, when it comes to IRS regulations, you should check with your accountant for the most accurate and up-to-date information.

There is no doubt that the housing market is stumbling to a recovery.  This past week Lawrence Yun, NAR’s chief economist, predicted a 4% increase in sales next year. Last month, Celia Chen of Moody’s Analytics projected sales to increase over 20% in 2012.  Any increase in transactions will be welcomed.

However, we believe there is one headwind that could jeopardize a recovery: fragile consumer confidence. Consumer sentiment, as measured by the University of Michigan, has seen modest improvement in the last few months after nose diving over the previous several months. Moving forward, any hit to consumer confidence will impact a real estate rebound.

Prices are predicted to soften through the first two quarters of 2012 before reaching modest levels of appreciation by year’s end. Falling prices will force more homeowners into a position of negative equity. Being underwater is one of the triggers that cause people to strategically default on their mortgage obligations. If this happens, there will be an increase in the number of foreclosures. This, in turn, could cause a relapse in consumer sentiment.

Bottom Line

We believe that there will be a dramatic increase in residential real estate transactions (both existing sales and new construction sales). The only thing that may stand in the way is a loss of confidence in a housing recovery. The next six months will tell us a lot regarding this possibility.

In any business, whether it be real estate or other, in order to be successful one must have a systematic approach to their craft. This holds true when putting a short sale transaction together. During our 5 year tenure negotiating short sales, we have found that some Real Estate professionals lack such an approach.

I learned early in my mortgage career that if I submitted a lackluster credit file to my underwriting department I would receive lackluster results. These results included denied files, upset underwriters and a processing department that wanted to throw the file back on my desk faster than I wanted it submitted.  I quickly remedied the situation after a conversation with a very good friend who is a million dollar producer in the financial services industry. He shared with me his systematic approach when handling his clients. He did not sway from this system. He applied the approach to every client that he spoke to. He did the work up front, asking every detailed question imaginable on his fact finding sheet. He left no stone unturned. Though sometimes monotonous in nature, this systematic approach allowed him to implement a solid financial plan for his clients and provide the bridge to a solid financial future. 

I quickly adopted a similar approach with my clients. I was able to come up with a systematic approach to my origination method that was both trackable and attainable. I left no stone unturned when speaking to my clients. I made sure I over documented the credit file and provided a complete and accurate credit profile to my underwriting department for every client I had the pleasure of writing a loan for. The results were amazing. I was pushing files through underwriting with transaction speeds never seen before and I was making allies doing so. When the processing and underwriting departments received a file from me, they knew it would only have to be touched one time and a conditional approval would be granted. They actually wanted to receive files from me rather than wanting to throw them back on my desk.  Success!

I share this information because the short sale application process is very similar to the loan origination process.

However, if you take a shot gun approach rather than a targeted systematic approach to the process, you will set yourself up for failure.  Below are the documents one must attain to make sure the short selling bank does not throw the file back on your desk when submitting the file for short sale approval:

Financial Information

• § Tax information
  • § Two most recent 1040′s
  • § Two most recent W2′s
• § 60 days of current bank statements
• § 30 days of current pay stubs or commission check stubs
• § If self employed-pay stubs or YTD profit and loss statement
• § Monthly budget/financial statement signed and dated same day as P&S
• § Hardship letter dated signed same day as purchase contract
• § Any docs supporting the actual hardship
• § Medical bills
• § Child support or alimony payment information. Divorce decree or child support order
• § 1st Mortgage statement
• § 2nd Mortgage statement if applicable
• § Recent Real Estate tax bills
• § Recent condo association bills if applicable
• § Any recent water or sewer bills
• § Authorization form
• § Short sale disclosure
• § Waiver of conflict if representing the buyer
• § 3 recent comps
• § Listing agreement
• § Offer/P&S
• § Listing history
• § Buyer proof of funds letter or Pre Approval letter

Hardship information

Mortgage & Other Relevant Property Information

Other Pertinent Documentation

It is important to understand that the above documents are required for almost every short selling bank. There are also bank specific forms that, in most cases, must accompany the above. You may contact your negotiator or the bank directly to obtain the bank specific documents. However, if you make an attempt to structure a document checklist with the above documents and systematically approach every short sale file with the idea of fulfilling that checklist, you will soon see that the short sale process will be one which will prove to be lucrative. The end result will be a happy buyer, seller, production team and, of course, bank negotiator. After all, a systematic approach to the short sale process will alleviate the negotiator throwing the file back on your desk for deficient information. In fact, they will be eagerly awaiting the next file with your name on it!