When borrowers struggle to meet their debt obligations, they may negotiate with creditors to modify the terms of their debt instrument. This could involve changes to the interest rate, repayment period, collateral, or other aspects of the debt. However, these modifications could potentially result in a taxable exchange of the original note for a modified one, a fact that may not be immediately apparent to the involved parties.

Under Section 1001 of the Internal Revenue Code, a taxpayer realizes gain or loss on the sale or disposition of property, which includes the exchange of property for other materially different property. If a modification to a debt instrument is significant, it is deemed an exchange of the original debt instrument for a new, modified one. The borrower recognizes cancellation of indebtedness income (CODI) if the adjusted issue price of the original instrument is less or greater than the issue price of the new instrument. The creditor’s recognition of gain or loss will depend on the issue price of the new instrument relative to the creditor’s basis in the original instrument.

A modification refers to any alteration of a legal right or obligation of the issuer or a holder of a debt instrument. A deemed exchange only occurs if the modifications are significant. The Treasury Regulations provide tests for when certain modifications are treated as significant, including changes in yield, timing of payments, source of repayment or collateral security, and nature of the instrument. If a change constitutes a modification, it needs to be examined under these tests to determine if it is economically significant. The debtor must determine whether it will recognize CODI in the event of a deemed exchange due to a significant modification. The creditor, on the other hand, will have to calculate whether it recognizes gain or loss on the deemed exchange.

In conclusion, when debtors and creditors renegotiate the terms of an existing debt, they must be aware that the modifications can result in a deemed exchange of an “old” debt instrument for a “new” one for tax purposes. This deemed exchange can have significant tax consequences for both parties. Read the full article here.