Re: Rebates? For further Confusion! - Posted by Dave T
Posted by Dave T on February 15, 2002 at 22:28:44:
Not sure exactly how the seller will be legally obligated to give you a rebate in your scenario. If you have a contract for $70K, then the settlement attorney will only give the seller his net from a $70K sale price.
If you are fortunate enough to find a lender that will lend you $90K on a $70K purchase contract, then the settlement attorney gives you anything left on the table after the seller gets his $70K (less selling and closing costs, and mortgage payoff). I have seen ads from DiTech that offer a 125% purchase money loan program for owner occupants. As I said in my earlier post, borrowed money that has to be repaid is not income for tax purposes.
If, in this example, the property does not actually appraise for at least $90K, then the mortgage interest paid on the loan amount that exceeds the FMV of the property is not deductible as a home mortgage interest expense on your Schedule A.
Now, let’s attempt to answer the question you asked. Let’s say that you contract to purchase the property for a contract price of $90K. An independent appraisal confirms that the FMV of your property is high enough to satisfy a lender who subsequently approves your loan application to purchase the property.
You hire a building inspector to inspect the property prior to settlement. The building inspector uncovers some hidden defects that he estimates will cost $20K to fix. You ask the seller to make the identified repairs prior to settlement, but the seller counters with an offer to give you a $20K repair concession at settlement. You put this in an addendum to your contract, and the lender (with full knowledge of this arrangement) still approves your original loan application. Unless the lender has directed that the repair funds be held in escrow until repairs are completed, this $20K is given to you at the settlement table.
There is no taxable income here, but your $90K cost basis is now reduced by $20K, and is now $70K. If you turn around and sell the property “as is” to someone else for $90K, then you will have a taxable profit of $20K. If, instead, you spend all $20K in capital improvements, then your cost basis is increased from $70K to $90K.
Let’s use another scenario where you might get $20K back from the seller. Let’s say that your purchase contract with the seller calls for $90K seller financing. You go to settlement and give the seller a promissory note for $90K secured by a mortgage on the property. A week later, the seller calls you up and says that he needs a chunk of money for an unexpected emergency. The seller offers to accept $70K cash as full payoff for your $90K note. You refinance the property with a conventional lender for $70K and payoff your original note. This $20K discount is taxable income (debt forgiven), while your original cost basis in the property stays unchanged. Even if you refinance for $90K and only use $70K to payoff your discounted note, you still have $20K of forgiven debt that is taxable income.
Other scenarios that involve double contracts, a shadow second mortgage, or a strawman to provide you with a $20K “rebate” might be alleged to be loan fraud. Regardless of the implication of loan fraud, forgiven debt (shadow second mortgage) is taxable as ordinary income.
A true rebate is a return of principle and reduces your cost basis. It is not taxable as income, but instead, increases your taxable profit when you sell the property.
Again, I am not a tax professional and don’t pretend to be an expert. This post only reflects my opinion.