The recent national surge in home foreclosures coming on the heels of the collapse of the sub-prime lending industry and decline in home values likely means additional bad news for those former homeowners who feel like they just lost everything: additional income tax liability.

Income tax liability? From losing your home? Such is the nature of the United States Internal Revenue Code.

Given the foreclosure epidemic and the huge losses to which lenders of all sizes are now exposed, many lenders are willing to enter into a variety of work-out programs with their borrowers to avoid foreclosure. Avoiding foreclosure does not necessarily mean keeping the home, however.

The foreclosure process is time-consuming for the lenders and often subjects them to the additional time and expense of physically evicting the former home owner from the home after the foreclosure sale. From the borrower's perspective, a foreclosure is a huge blow to credit worthiness and will impact the borrower's ability to finance major purchases for years to come.

Considering many lenders' goals of reducing their losses on foreclosures, borrowers have met with success recently in negotiating "short sales" with their lenders. A short sale is the borrower's reconveyance of the home to the lender for less than the amount owed on the mortgage.

For example: Joe obtained a creative home loan and purchased a home at the height of home values and during the most liberal period in sub-prime lending.

Eventually, the appraised value of Joe's home began to drop and the "creative" part of his home loan kicked-in. Perhaps his interest rate adjusted or his interest-only payments ceased and he was required to commence paying both principal and interest.

In any event, Joe finds that he cannot afford to continue making the mortgage payments and, due to market circumstances, he now owes more on the mortgage than the home is worth. In other words, he is upside down in the home.

Joe defaults on the mortgage payments and is now subject to the foreclosure process.

Applied to the example above, the borrower might successfully negotiate a short sale with his lender. Many lenders are now accepting a reconveyance of the home and forgiving the remaining debt exceeding the value of the home.

In the example, Joe may have purchased the home for $300,000. He has made interest-only payments on the loan for a year, but due to the recent slump in the market, the home is now worth only $250,000. He still owes $300,000 on the mortgage. The lender, therefore, may accept a reconveyance of the home - in essence a $250,000 payment - against the $300,000 debt.

The sale is "short" because the value of the home does not cover the amount of the mortgage. The lender may forgive the additional $50,000 owed by the borrower in order to avoid the foreclosure process, or to avoid litigation expenses in pursuing the borrower for the deficiency balance, and essentially cut its losses.

For the borrower, he avoids foreclosure and its ramifications to his credit, as well as facing a likely judgment for the amount still owed on the debt.

The hidden drawback here, though, is that the tax code treats Joe's debt relief as income. By being relieved of the obligation to pay $50,000, the IRS considers that Joe has in effect put $50,000 in his pocket.

The debt relief is subject to ordinary income tax. Joe may not even know of his additional tax liability until he receives an envelope in the mail from the lender containing a 1099 form reporting the debt relief income to the IRS.

The same result may follow if Joe simply walks away from the home, allows foreclosure to proceed, and then the lender elects not to pursue Joe for collection of the deficiency balance on the loan.

The ripple effect of the sub-prime lending market over the past couple of years has yet to reach its full effect. Individual homeowners must be wary of all consequences of divesting themselves of the homes they purchased in that market.

While financial planning might be the last thing on a borrower's mind when he or she faces the harsh reality that the home will be lost in some way, the unforeseen consequences of a foreclosure or short sale can only be addressed through the sound advice of a tax professional, CPA, or, at the very least, the IRS website.

Of interest to us lawyers, however, is the approach the IRS will take to the likely spate of litigation that will proceed, alleging that these borrowers, now facing additional income tax liability through the loss of their homes, should not be responsible for the 1099 income tax burden, by virtue of alleged fraud or misrepresentation on the part of the sub-prime lenders.

As they say, "the Wheels of Justice grind slowly." We will all have to wait to see how this shakes out.

By: Aaron Lovaas
Aaron Lovaas is a lawyer practicing in the areas of business litigation, business formation and planning, and real estate matters through his law firm, Shimon & Lovaas, P.C., in Las Vegas, NV. aaron@shimon-lovaas.com website: http://www.shimon-lovaas.com.

Age discrimination is something that happens all the time and there are plenty of people who are ousted by either their employers or their credit agencies just because they hit a certain age or are near retirement age. Age discrimination is against the law in nearly every instance and even though employers and creditors may look at your age, they cannot use it against you. Over the years there have been a number of different laws regarding age discrimination, let’s look at a few of them:

The Age Discrimination Employment Act: This Act was developed in 1967 and is known by many today simply as the ADEA. It protects individuals who are over 40 years old from being discriminated in the job place, whether that means being fired or promoted. This Act protects both the individual that is already employed and the one that is applying for a position. It states that no one can be discriminated against according to their age when it comes to: “term, condition or privilege of employment.” This Act is designed to protect those people who are working for medium to large businesses and those who are employed by the state (whether that is local or federal).

The Age Discrimination Act of 1975: This Act, developed in 1975, is designed to protect those individuals who are applying for federal financial assistance. The Act allows any person, regardless of age, to apply and have the same chance of receiving any federal assistance that is available. The Act is enforced by the Civil Rights Center and it works in relation to the Act of 1967 (which is enforced by the Equal Employment Opportunity Commission).

Workforce Investment Act (Section 188): This Act, which was developed in 1998, protects applicants of the WIA Title I- financially assisted programs from being discriminated against according to their age. This Act not only protects applicants from age discrimination but also according to their: race, color, religion, beliefs, national origin and/ or disabilities. This Act is also enforced by the Civil Rights Center.

Age discrimination is a real life problem for many individuals and it is important that they know their rights when it comes to protecting themselves in all instances. Here are a few more facts about age discrimination.

* Apprenticeship programs cannot discriminate against a person according to their age with the exception of possible minimum age requirements as set by the ADEA or EEOC.
* It is unlawful to advertise with age discriminatory marketing. According to the ADEA a company or program cannot distribute advertisements that require applicants to be a certain age to qualify. Certain exceptions apply.
* A company cannot use age against an applicant during the application process. While an employer can ask for birthdates and current age, they cannot use this information against the applicant.
* Older employees cannot be denied benefits as given by the company. According to the Older Workers Benefit Protection Act of 1990, employers cannot deny benefits to deserving older employees.

By: Kelly Hunter
Kelly Hunter is an a regular writer for http://www.hostile-work-environment.com about Hostile Work Environment issues in the workplace.

Once you decide to form a corporation for your business entity, you will quickly be faced with another question. Should the corporation pay taxes as a “C” or “S” corporation?

There is a lot of confusion when it comes to the tax designation of a corporate entity. The first thing to understand is a corporation is a “C” designation by default. As a “C” entity, the corporation will file and pay its own taxes with profits and salaries being paid out to employees and shareholders. Since the employees and shareholders have to pay personal taxes on the distributions, “C” corporations are considered double taxation entities. This is generally viewed as a negative thing.

An “S” corporation is the government’s answer to the double taxation issue. The entity essentially acts as a pass through tax structure. The “S” corporation files a tax return with the IRS, but it is only an information tax return. This means no tax is paid. Instead, the finances of the company are passed through to the personal tax returns of the shareholders. The shareholders then report and pay tax to the IRS accordingly.

To gain “S” corporation status, you must take affirmative steps with the IRS. Specifically, you must file an application to be designated as an “S” corporation. The application in question is Form 2553. This form must be filed within 2 and ½ months of the creation of the entity or in the year prior to the year you wish the designation to be made. Prior to filing the designation, of course, you must have your employer identification number. This can be obtained with Form SS-4.

It is important to remember that there are restrictions on what corporations can file as “S” with the IRS. The designation is only available to small business corporations that are domestically formed. Further, the corporation can have no more than 100 shareholders and all must unanimously agree to the election. The shareholders cannot be other businesses, although there are some exceptions where business trusts are involved. A shareholder also may not be a non-resident alien. Finally, the corporation may only have one class of stock, although voting rights may differ.

One area where state law can cause problems with the s-election is in the field of community property. Certain states like California view marriage as conveying certain rights to both spouses whether they realize it or not. If you live in such a state, your non-involved spouse must also consent to the “S” election or it may be ruled invalid. Why? They essentially own part of your share position in the corporation.

Making the “S” designation for a corporation is not overly difficult, but many new entities run into problems because they fail to take care of the designation in a timely manner. Make sure you stay on top of the filing or you will have to wait for an additional year to make the designation.

By: Richard A. Chapo
California incorporation services via http://www.SanDiegoBusinessLawFirm.com.

The June issue of Trial, a publication of the American Association for Justice, contains a helpful “How-To” article for trial lawyers on the mediation of commercial disputes. Stewart I. Edelstein wrote the lengthy “Hot-To” article, which discusses such topics as choosing the right mediator, preparing to mediate, selecting which strategies to utilize, getting past impasse and finalizing the mediation. The tips are summarized quickly for you below.

Choosing a Mediator
Mr. Edelstein writes that you should chose a mediator “…who is impartial and has a strong track record for effective problem-solving, excellent negotiating skills, patience, trustworthiness, a keen business sense, and a good sense of humor.” However, sometimes a general mediator won’t get the job done. You may need to choose a mediator who focuses on a particular area, such as construction or patents.

Preparing to Mediate
Failing to prepare is one of the biggest mistakes lawyers make in connection with mediation. Mr. Edelstein suggests many tips, including:
- Decide on an initial demand
- Discuss creative solutions with client before mediation
- Provide a complete pre-mediation statement
- Discuss proper mediation demeanor with client
- Work out an agreement for the terms of the mediation

Selecting Strategies
Make sure the strategies you select are the ones that will achieve the final results that the client seeks. Carefully consider the opening position. It is an important opportunity to convey to your opponent that you are a formidable adversary prepared to litigate the case to conclusion, if necessary. Nevertheless, recognize the benefits to both parties of resolving the case sensibly through this mediation. Finally, be patient, open-minded and involved.

Getting Past Impasse
This can easily be achieved by a good mediator with effective strategies. Mr. Edelstein includes many “impasse breakers” such as:
- Refocus on the importance of the ongoing relationship
- Emphasize mutual benefits of resolving the dispute without publicity
- Review risks and costs
- Consider non-monetary settlement components
- Consider a “double-blind” proposal
- Take a recess
- Transform the process from mediation to arbitration

Finality is Key
When the mediation is final, and if it is successful, Mr. Edelstein strongly recommends getting the terms of the agreement in writing before mediation concludes. Consider having a computer and printer available to draft the terms of the final agreement so it can be signed on the spot.

Preparation, however, is Mr. Edelstein’s biggest concern. It can be the difference between success and failure. An effective mediation can save time, money and relationships.

By: Christina Doucet
The National Arbitration Forum offers Mediation in all 50 states. visit their site at http://www.mediation-solution.com.

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