Tax Panel Backs More IRS Clout

By Kenneth R. Harney
Saturday, October 28, 2006

Watch out: Home real estate is back in the sights of Capitol Hill tax writers.

The staff of the nonpartisan Joint Committee on Taxation has proposed new options for closing the "tax gap," which is the difference between federal taxes that should be paid under current tax rules and the amounts collected by the IRS. Recommendations from the committee staff carry substantial weight with members of the Senate and House, and frequently are included in tax legislation.

High on the list of methods to collect more of what's owed: Tighten up on homeowners' billowing write-offs of local and state property taxes, which cost the federal government about $20 billion a year in revenue.

Under the federal tax code, local real estate taxes levied against homes generally are deductible. However, they are not deductible if the tax payments cover commonplace special assessments designed to pay for improvements that directly benefit taxpayers' real estate. Examples include local "user fees" for water mains, sewer lines, sidewalks, trees and trash collections.

The problem, according to the tax committee staff, is that federal law does not require local governments to tell the IRS about property owners' mixes of regular taxes and non-deductible special-benefits levies. Local governments often provide annual property tax statements to residents with breakouts of assessments. But many homeowners simply deduct the bottom-line taxes paid.

As a result, according to the committee, homeowners write off hundreds of millions of dollars a year for tax payments that are not legally deductible. In a 1993 study, what was then known as the General Accounting Office (now the Government Accountability Office) estimated that $400 million of that year's $11 billion in property tax write-offs claimed by homeowners were improper. With deductions this year running nearly double that amount, wrongly claimed write-offs could be in the $700 million range or more.

The committee proposes two possible solutions: Require local governments to provide copies of homeowner tax statements to the IRS with breakouts distinguishing between regular and special-benefit assessments; or require mortgage lenders and loan servicers to report details of homeowners' property tax escrows with similar breakouts.

Either way, the IRS would receive property tax information on millions of homeowners every year for possible audit purposes.

The second target on the committee's hit list is a much richer lode -- home mortgage interest deductions, a nearly $70 billion revenue loss to the government this year. One of the problems, according to the staff, is that many homeowners do not distinguish between non-deductible mortgage interest and legally deductible interest.

For example, many refinancers write off mortgage "points," which are loan fees treated by the IRS as prepaid interest, in the year of the refinancing. But the IRS interprets the tax code to require that points in a refinancing be prorated over the term of the loan.

Lenders now report annual mortgage interest payments to the IRS, but not whether a loan was a refinancing. The committee staff recommends the rule be changed to require a notification of all homeowner refinancings, again providing potentially useful red flags for audit purposes.

Similarly, the committee proposes that lenders report whenever a refinancing led to a new loan amount $100,000 larger than the previous balance. That will alert the IRS to interest write-offs in excess of those permissible under widely misunderstood rules governing "acquisition indebtedness."

Acquisition debt for most taxpayers is the original mortgage debt they incurred to make their home purchase, plus all subsequent capital improvements, minus payments to reduce that principal over the course of the loan. Though many taxpayers believe that all mortgage interest is deductible up to $1 million in mortgage debt plus an additional $100,000 in home equity debt, that is not the law.

Using an example supplied by the committee, if the owners of a home with a $500,000 mortgage did a "cash out" refinancing of $700,000 -- that is, they pulled out another $200,000 -- the IRS might not view all the interest on the $700,000 new debt as deductible. Auditors might scrutinize whether the owners used more than $100,000 for capital improvements -- legitimate and tax-deductible as acquisition debt.

If substantial sums were spent on new cars or vacations, by contrast, those portions might not qualify for federal interest deductions.

To red-flag these cash-out refinancings, the committee proposes requiring lenders to alert the IRS in annual mortgage interest reports whenever taxpayers increase their loan balances by more than $100,000 through refinancing. The committee says it cannot be certain how many of the recent tidal wave of cash-out refinancings may have produced interest deductions that exceed the rules, but given the sheer amounts involved, "even low levels of noncompliance" might add up to big bucks.

Where's this all headed? Don't be surprised to see both proposals surface next year in tax legislation no matter which party controls Congress.

Kenneth R. Harney's e-mail address is KenHarney@earthlink.net.


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