On July 2, 2010, President Obama signed into law H.R. 5623, the “Homebuyer Assistance Improvement Act of 2010″ (the Act), which provides first-time homebuyer credit relief to taxpayers who could not meet a key June 30, 2010 closing date. The Senate passed the Act on June 30, 2010, by unanimous consent, and the House of Representatives passed it on June 29 by a vote of 409-5. On the same day that it was signed into law, the IRS issued a reminder that special filing and documentation requirements apply in claiming the homebuyer credit, including the information that must be provided by those taxpayers eligible to take advantage of the new law relief.

The cost of the closing reprieve is fully offset by expanding the bad check penalty under Code Sec. 6657 to cover electronic payments, and providing for disclosure of prisoner return information under Code Sec. 6103(k)(10) to state prisons.

Relief for First-Time Homebuyers Unable to Meet Closing Deadline

The Code Sec. 36 first-time homebuyer credit generally is equal to the lesser of $8,000 ($4,000 for a married individual filing separately) or 10% of the principal residence’s purchase price. However, for purchases after November 6, 2009, a taxpayer (i.e., a “long-time resident”) may claim the homebuyer credit if he (and, if married, his spouse) maintained the same principal residence for any 5-consecutive year period during the 8-years ending on the date that the taxpayer buys the subsequent principal residence. The maximum allowable homebuyer credit for such taxpayers, who are treated as first time homebuyers for purposes of the first-time homebuyer credit, is $6,500 ($3,250 for a married individual filing separately), or 10% of the purchase price of the subsequent principal residence, whichever is less.

For purchases after Nov. 6, 2009:

… the first-time homebuyer credit phaseout range is between $125,000 and $145,000, and for those filing a joint return, it’s between $225,000 and $245,000.

… the first-time homebuyer credit cannot be claimed for a home if its purchase price exceeds $800,000; and

… a number of anti-abuse provisions apply. For example, dependents cannot claim the first-time homebuyer credit; a purchaser must be at least 18 years of age on the date of purchase; and the definition of a qualifying purchase for first-time homebuyer credit purposes is amended to exclude property acquired from a person related to the person acquiring the property or the spouse of the person acquiring the property, if married.

The first-time homebuyer credit applied to a principal residence bought before May 1, 2010 and, under pre-Act law, to a principal residence bought before July 1, 2010, by a person who entered into a written binding contract before May 1, 2010, if the purchase closed before July 1, 2010. (Certain service members on qualified official extended duty service outside of the U.S. get an extra year to buy a qualifying home and get the credit.)

New law. The Act provides that if a written binding contract to purchase a principal residence was entered into before May 1, 2010, to close on the purchase of a principal residence before July 1, 2010, the credit may be claimed if the purchase is closed before October 1, 2010. (Code Sec. 36(h)(2), as amended by Act Sec. 2(a)).  Thus, this extension allows homebuyers who signed a contract no later than the April 30th deadline, intending to close before July 1, 2010, to complete their closing by the end of September and still qualify for the credit. Conforming amendments are made for purposes of the longer periods for those service members on qualified official extended duty service outside of the U.S. (Code Sec. 36(h)(3)(B)).

Required documentation. In IR 2010-80, the IRS reminds taxpayers that special filing and documentation requirements apply to anyone claiming the homebuyer credit. To avoid refund delays, those who entered into a purchase contract on or before April 30, but closed after that date, should attach to their return a copy of the pages from the signed contract showing all parties’ names and signatures if required by local law, the property address, the purchase price, and the date of the contract.

Besides filling out Form 5405, First-Time Homebuyer Credit and Repayment of the Credit, all eligible homebuyers must also include with their return one of the following documents:

… A copy of the settlement statement showing all parties’ names and signatures, property address, sales price, and date of purchase. Normally, this is the properly executed Form HUD-1, Settlement Statement. While the Form 5405 instructions indicate that a properly executed settlement statement should show the signatures of all parties, IRS recognizes that the elements of the settlement document may vary from jurisdiction to jurisdiction and may not reflect the signatures of the buyer and seller. The settlement statement that must be attached to the return is considered to be properly executed if it is complete and valid according to local law. In locations where signatures are not required, the IRS encourages the buyer to sign the settlement statement prior to attaching it to the tax return even in cases where the settlement form does not include a signature line.

… For mobile home purchasers who are unable to get a settlement statement, a copy of the executed retail sales contract showing all parties’ names and signatures, property address, purchase price and date of purchase.

… For a newly constructed home where a settlement statement is not available, a copy of the certificate of occupancy showing the owner’s name, property address and date of the certificate.

… A taxpayer who entered into a binding contract before May 1, 2010 (and who closes by July 1, 2010) must also attach pages from the signed contract showing all parties names and signatures, the property address, the purchase price, and the date of the contract.

… A taxpayer claiming the credit as a long-term resident of the same main home must attach copies of one of the following: Form 1098, Mortgage Interest Statement (or substitute statement), property tax records, or homeowner’s insurance records. These records should be for 5 consecutive years of the 8-year period ending on the purchase date of the new main home.

Options for claiming the credit. IR 2010-80 also reminds taxpayers that there are three options for claiming the credit on a qualifying 2010 purchase:

… If a 2009 return has not yet been filed, a taxpayer can claim the credit on Form 1040 for the 2009 tax year. Though such a return cannot be filed electronically, taxpayers can still use IRS Free File to prepare their return. The returns must be printed out and sent to IRS, along with all required documentation. (Taxpayers can use direct deposit for their refunds.)

… If a 2009 return has already been filed, a taxpayer can claim the credit on an amended return using Form 1040X.

… Whether or not a 2009 return has been filed, a taxpayer can wait until next year and claim the credit on a 2010 Form 1040.

The three-month extension of the closing date is intended to provide tax relief for those who could not close on time because of backlogs at lenders and federal programs involved in homebuyer loans. In the words of the Act’s supporters, the three-month extension “will give time for all the new mortgages to be processed and not punish those homeowners who have been delayed through no fault of their own.”

Bad Check Penalty Extended to Electronic Payments

Under Code Sec. 6657, subject to a good faith and reasonable cause exception, if a check or money order is used to pay any amount due under the Code and the amount is not duly paid on presentation, the person tendering the check or money order is subject to a penalty equal to 2% of the amount of the check or money order. If the amount of the check is less than $1,250, the penalty is $25 or the amount of the check, whichever is the less.

New law. For instruments tendered after July 2, 2010, the Act expands the bad check penalty under Code Sec. 6657 to cover electronic payments. (Code Sec. 6657, as amended by Act Sec. 3)

Disclosure of Prisoner Return Information to State Prisons

Under Code Sec. 6103(k)(10), to the extent necessary for effective Federal tax administration, before 2012, the IRS may disclose to the head of the Federal Bureau of Prisons return information of an individual incarcerated in a Federal prison that IRS has determined may have filed or facilitated the filing of a false return

New law. For disclosures made after July 2, 2010, the Act also authorizes the disclosure of return information of an individual incarcerated in a State prison to the head of any State agency charged with the responsibility for the administration of prisons. (Code Sec. 6103(k)(10), as amended by Act Sec. 4).

For more information on this new law, contact All States 1031 Exchange owner and tax attorney/CPA Moore McLaughlin at fmm@AllStates1031.com or by phone toll-free at 877-395-1031.