Information Letter Notice 2013-0036 and Why California’s Anti-Deficiency Statues Convert Recourse Debt to Nonrecourse Debt1
By Douglas L. Youmans and N. Aaron Johnson2
In response to a letter Senator Barbara Boxer sent to the Internal Revenue Service (the "Service") in 2013, requesting clarification as to whether a short sale conducted pursuant to section 580e of the California Code of Civil Procedure ("CCP") resulted in cancellation of indebtedness ("COI") income, the Service issued Information Letter Number 2013-0036 ("ILN 2013-0036"). ILN 2013-0036 states, "We believe that a homeowner’s obligation under the anti-deficiency provision of CCP section 580e would be a nonrecourse obligation to the extent that, for federal income tax purposes, the homeowner will not have cancellation of indebtedness income. Instead, the homeowner must include the full amount of the nonrecourse indebtedness in amount realized."3
On April 29, 2014, the Service issued a clarification of ILN 2013-0036 ("4/29 Clarification") which stated that they had been overly broad in, "… extending our analysis of the federal tax treatment of obligations beyond those [purchase money obligations] described in section 580b(a)(3)."