Offers In Compromise ("OIC") for Defaulted SBA EIDL loans and Section 108 of the Internal Revenue Code ("IRC"), Relief of Indebted Income, a Trap for the Unwary!
Many clients contact Jim Shenwick, Esq regarding assistance with their defaulted SBA EIDL loans and ask that we assist them with filing an OIC with the SBA.
By way of background, if an individual or a company borrows money from the SBA and is unable to repay their loan, one option is to file an OIC with the SBA, requesting that they be allowed to pay only a portion of the money's due on the defaulted EIDL loan as final and full payment for the SBA loan.
For example, let's assume that an individual borrowed $200,000 on an EIDL loan and hypothetically offered $25,000 as a lump sum payment to the SBA as a final and full payment on the defaulted SBA loan (OIC offer)
The SBA OIC program is similar to the OIC program for
The SBA has an Offer in Compromise form that must be filed, in addition to other forms, that detail the business’s assets, liabilities, revenue, & expenses and why the SBA EIDL loan cannot be repaid.
However, filing for an offer in compromise with the SBA may not
Section 108 of the Internal Revenue Code, provides that if an individual or a business borrows money and does not repay that money, the amount that is not repaid is considered ordinary income. For example, assume an individual borrows $100,000 from a bank and repays $50,000; according to the IRS, the taxpayer has been enriched to the sum of $50,000, and the bank is required to report "relief of indebtedness income" of $50,000 to the IRS on Form 1099-C. If the taxpayer does not report this income to the IRS, they will be audited and assessed interest and penalties on the
There are two exceptions to "relief of indebtedness income" The first exception, is the Bankruptcy Exception (see Section 108(a)(1)(A) of the IRC). If an individual or business files for
An example of the Insolvency Exception is as follows: an individual owns real estate and personal property worth
For example, assume a taxpayer had an LLC which borrowed $200,000 from the SBA in the form of an EIDL loan. The LLC was unable to repay the EIDL loan, and their plan was to file an offer in compromise with the SBA in the amount of $25,000. Assume that the taxpayer who owned the LLC also had a $1 million pension plan. If this taxpayer were to file for an OIC with the SBA, and if the OIC offer were accepted by the SBA, the taxpayer would have to report $175,000 of ordinary income on their tax return ($200,000-$25,000),
In the above scenario, if the LLC had filed for chapter 7 bankruptcy, they could have avoided paying the SBA $25,000 (OIC) and saved $52,500 in taxes—a better result for the borrower.
The bottom line is that prior to filing for an OIC with the SBA, an individual or business considering making an offer must consider the tax consequences of the offer as well!
Clients or advisors with questions about defaulted EIDL loans are encouraged to contact Jim Shenwick, Esq. firstname.lastname@example.org 917 363 3391.
Please click the link to schedule a telephone call with me.
Jim is a Bankruptcy and Workout attorney with an LLM in Taxation from NYU Law School and he has SBA EIDL default experience.
Jim Shenwick SBA EIDL Blog Posts:
EIDL LOAN WORKOUTS AND BANKRUPTCY https://shenwick.blogspot.com/2022/07/eidl-loan-workouts-and-bankruptcy.html
EIDL Loan Default Questions & Answers
EIDL LOAN DEFAULT DOCUMENT REVIEW, WORKOUT, BANKRUPTCY FILING & OFFER IN COMPROMISE
EIDL Defaulted Loans
New Relief Program for SBA EIDL Borrowers Who are Having Difficulty Repaying EIDL Loans " Hardship Accommodation Plan"
EIDL LOANS and SBA OFFER IN COMPROMISE PROGRAM
PPP & EIDL Fraud
Better to connect-What small business owners need to know about repaying loans tied to pandemic relief from the SBA EIDL Loans
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