© 2015 Cengage Learning. All Rights Reserved. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part. Comprehensive Volume 1 Chapter 14 Property Transactions: Capital Gains and Losses, § 1231, and Recapture Provisions

2 The Big Picture (slide 1 of 3) Maurice has come to you for tax advice regarding his investments. –He inherited $750,000 from his Uncle Joe and, following the advice of a financial adviser, made the following investments 9 months ago. $5,000 for 100 shares of Eagle Company stock. $50,000 for a 50% interest in a patent that Kevin, an unemployed inventor, had obtained for a special battery he had developed to power ‘‘green’’ cars. –To date, Kevin has been unable to market the battery to an auto manufacturer or supplier.

3 The Big Picture (slide 2 of 3) $95,000 to purchase a franchise from Orange, Inc. $200,000 in the stock of Purple, a publicly held bank that does not pay dividends. –At one time, the stock had appreciated to $300,000, but now it is worth only $210,000. Maurice is considering unloading this stock. $50,000 in tax-exempt bonds. –The interest rate is only 3%. –Maurice is considering moving this money into taxable bonds that pay 3.5%. $100,000 for a 10% limited partnership interest in a real estate development. –Lots in the development are selling well.

4 The Big Picture (slide 3 of 3) Maurice read an article that talked about the beneficial tax rates for capital assets and dividends. –He really liked the part about ‘‘costless’’ capital gains, although he did not understand it. Maurice has retained his job as a toll booth operator at the municipal airport. –His annual compensation is $35,000. Respond to Maurice’s inquiries. –Read the chapter and formulate your response.

5 Taxation of Capital Gains and Losses Capital gains and losses must be separated from other types of gains and losses for two reasons: –Long-term capital gains may be taxed at a lower rate than ordinary gains –A net capital loss is only deductible up to $3,000 per year

6 Proper Classification of Gains and Losses Depends on three characteristics: –The tax status of the property Capital asset, §1231 asset, or ordinary asset –The manner of the property’s disposition By sale, exchange, casualty, theft, or condemnation –The holding period of the property Short term and long term

7 Capital Assets (slide 1 of 6) §1221 defines capital assets as everything except: –Inventory (stock in trade) –Notes and accounts receivables acquired from the sale of inventory or performance of services –Realty and depreciable property used in a trade or business (§1231 assets)

8 Capital Assets (slide 2 of 6) §1221 defines capital assets as everything except (cont’d): –Certain copyrights; literary, musical, or artistic compositions; or letters, memoranda, or similar property Taxpayers may elect to treat a sale or exchange of certain musical compositions or copyrights in musical works as the disposition of a capital asset –Certain publications of U.S. government –Supplies of a type regularly used or consumed in the ordinary course of a business

9 Capital Assets (slide 3 of 6) Thus, capital assets usually include: –Assets held for investment (e.g., stocks, bonds, land) –Personal use assets (e.g., residence, car) –Miscellaneous assets selected by Congress

10 Capital Assets (slide 4 of 6) Dealers in securities –In general, securities are the inventory of securities dealers, thus ordinary assets –However, a dealer can identify securities as an investment and receive capital gain treatment Clear identification must be made on the day of acquisition

11 Capital Assets (slide 5 of 6) Real property subdivided for sale –Taxpayer may receive capital gain treatment on the subdivision of real estate if the following requirements are met: Taxpayer is not a corporation Taxpayer is not a real estate dealer No substantial improvements made to the lots Taxpayer held the lots for at least 5 years –Capital gain treatment occurs until the year in which the 6th lot is sold Then up to 5% of the revenue from lot sales is potential ordinary income That potential ordinary income is offset by any selling expenses from the lot sales

12 Capital Assets (slide 6 of 6) Nonbusiness bad debts –A nonbusiness bad debt is treated as a short-term capital loss in the year it becomes completely worthless Even if outstanding for more than one year

13 Sale or Exchange Recognition of capital gains and losses generally requires a sale or exchange of assets Sale or exchange is not defined in the Code There are some exceptions to the sale or exchange requirement

14 Sale or Exchange–Worthless Securities and § 1244 Stock (slide 1 of 2) A security that becomes worthless creates a deductible capital loss without being sold or exchanged –The Code sets an artificial sale date for the securities on the last day of the year in which worthlessness occurs Section 1244 allows an ordinary deduction on disposition of stock at a loss –The stock must be that of a small business company –The ordinary deduction is limited to $50,000 ($100,000 for married individuals filing jointly) per year

15 Sale or Exchange –Worthless Securities (slide 2 of 2) Worthless securities example: –Calendar year taxpayer purchased stock on December 5, 2013 –The stock becomes worthless on April 5, 2014 –The loss is deemed to have occurred on December 31, 2014 The result is a long-term capital loss

16 Sale or Exchange Retirement of Corporate Obligations Collection of the redemption value of corporate obligations (e.g., bonds payable) is treated as a sale or exchange and may result in a capital gain or loss –OID amortization increases basis and reduces gain on disposition or retirement

17 Sale or Exchange–Options (slide 1 of 2) For the grantee of the option, if the property subject to the option is (or would be) a capital asset in the hands of the grantee –Sale of an option results in capital gain or loss –Lapse of an option is considered a sale or exchange resulting in a capital loss For the grantor of an option, the lapse creates –Short-term capital gain, if the option was on stocks, securities, commodities or commodity futures –Otherwise, ordinary income

18 Sale or Exchange–Options (slide 2 of 2) Exercise of an option by a grantee –Increases the gain (or reduces the loss) to the grantor from the sale of the property –Gain is ordinary or capital depending on the tax status of the property Grantee adds the cost of the option to the basis of the property acquired

19 The Big Picture - Example 13 Options (slide 1 of 4) Return to the facts of The Big Picture on p On February 1, 2014, Maurice purchases 100 shares of Eagle Company stock for $5,000. –On April 1, 2014, he writes a call option on the stock, giving the grantee the right to buy the stock for $6,000 during the following six-month period. –Maurice (the grantor) receives a call premium of $500 for writing the call.

20 The Big Picture - Example 13 Options (slide 2 of 4) Return to the facts of The Big Picture on p If the call is exercised by the grantee on August 1, 2014, Maurice has $1,500 of short-term capital gain from the sale of the stock. –$6,000 + $500 − $5,000 = $1,500 The grantee has a $6,500 basis for the stock. –$500 option premium + $6,000 purchase price

21 The Big Picture - Example 13 Options (slide 3 of 4) Return to the facts of The Big Picture on p Assume that Maurice decides to sell his stock prior to exercise for $6,000 and enters into a closing transaction by purchasing a call on 100 shares of Eagle Company stock for $5,000. –Because the Eagle stock is selling for $6,000, Maurice must pay a call premium of $1,000. He recognizes a $500 short-term capital loss on the closing transaction. –$1,000 (call premium paid) − $500 (call premium received) On the actual sale of the Eagle stock, Maurice has a short-term capital gain of $1,000 –$6,000 (selling price) − $5,000 (cost)

22 The Big Picture - Example 13 Options (slide 4 of 4) Return to the facts of The Big Picture on p Assume that the original option expired unexercised. –Maurice has a $500 short-term capital gain equal to the call premium received for writing the option. This gain is not recognized until the option expires. –The grantee has a loss from expiration of the option. The nature of the loss will depend upon whether the option was a capital asset or an ordinary asset.

23 Sale or Exchange–Patents When all substantial rights to a patent are transferred by a holder to another, the transfer produces long-term capital gain or loss –The holder of a patent must be an individual, usually the creator, or an individual who purchases the patent from the creator before the patented invention is reduced to practice

24 The Big Picture - Example 14 Patents (slide 1 of 2) Return to the facts of The Big Picture on p Kevin transfers his 50% rights in the battery patent to the Green Battery Co. –In exchange, he receives $1 million plus $.50 for each battery sold.

25 The Big Picture - Example 14 Patents (slide 2 of 2) Assuming Kevin has transferred all substantial rights, Kevin automatically has a long-term capital gain. –Both the $1 million lump-sum payment and the $.50 per battery royalty qualify (less his basis in the patent). –Kevin also had an automatic long-term capital gain when he sold 50% of his rights in the patent to Maurice. Whether Maurice gets long-term capital gain treatment on the transfer to Green Battery will depend on whether he is a holder (see the discussion below and Example 15).

26 The Big Picture - Example 15 Holder Of A Patent (slide 1 of 2) Return to the facts of The Big Picture on p and continuing with the facts of Example 14 Kevin is clearly a holder of the patent –He is the inventor and was not an employee when he invented the battery.

27 The Big Picture - Example 15 Holder Of A Patent (slide 2 of 2) When Maurice purchased a 50% interest in the patent, he became a holder if the patent had not yet been reduced to practice. –Since the patent was not being manufactured at the time of the purchase, it had not been reduced to practice. Consequently, Maurice is also a holder. –He has an automatic long-term capital gain or loss if he transfers his 50% interest to Green Battery Co. Maurice’s basis for his share of the patent is $50,000, and his share of the proceeds is $1 million plus $.50 for each battery sold. Thus, Maurice has a long-term capital gain even though he has not held his interest in the patent for more than one year.

28 Sale or Exchange–Franchises, Trademarks, and Trade Names (slide 1 of 3) The licensing of franchises, trade names, trademarks, and other intangibles is generally not considered a sale or exchange of a capital asset –Therefore, ordinary income results to transferor Exception: Capital gain (loss) may result if the transferor does not retain any significant power, right, or continuing interest

29 Sale or Exchange–Franchises, Trademarks, and Trade Names (slide 2 of 3) Significant powers, rights, or continuing interests include: –Control over assignment –Quality of products and services –Sale or advertising of other products or services –The right to require that substantially all supplies and equipment be purchased from the transferor –The right to terminate the franchise at will, and –The right to substantial contingent payments

30 Sale or Exchange–Franchises, Trademarks, and Trade Names (slide 3 of 3) When the transferor retains a significant power, right, or continuing interest, the transferee’s noncontingent payments are ordinary income to the transferor –The franchisee capitalizes the payments and amortizes them over 15 years Whether the transferor retains a significant power, right, or continuing interest, contingent payments are ordinary income for the franchisor and an ordinary deduction for the franchisee

31 The Big Picture - Example 16 Sale of Franchise Return to the facts of The Big Picture on p Maurice sells for $210,000 to Mauve, Inc., the franchise purchased from Orange, Inc., nine months ago. –The $210,000 received by Maurice is not contingent, and all significant powers, rights, and continuing interests are transferred. –The $115,000 gain ($210,000 proceeds − $95,000 adjusted basis) is a short-term capital gain because Maurice has held the franchise for only nine months.

32 Sale or Exchange Lease Cancellation Payments Lessee treatment –Treated as received in exchange for underlying leased property Capital gain results if asset leased was a capital asset (e.g., personal use ) Ordinary income results if asset leased was an ordinary asset (e.g., used in lessee’s business and lease has existed for one year or less when canceled) Lease could be a § 1231 asset if the property is used in lessee’s trade or business and the lease has existed for > a year when it is canceled Lessor treatment –Payments received are ordinary income Considered to be in lieu of rental payments

33 Holding Period (slide 1 of 3) Short-term –Asset held for 1 year or less Long-term –Asset held for more than 1 year Holding period starts on the day after the property is acquired and includes the day of disposition

34 Holding Period (slide 2 of 3) Nontaxable Exchanges –Holding period of property received includes holding period of former asset if a capital or §1231 asset Transactions involving a carryover basis –Former owner’s holding period tacks on to present owner’s holding period if a nontaxable transaction and basis carries over Certain disallowed loss transactions –Under several Code provisions, realized losses are disallowed. –When a loss is disallowed, there is no carryover of holding period. e.g., Related party losses, sale or exchange of personal use assets Inherited property is always treated as long term no matter how long it is held by the heir

35 Holding Period (slide 3 of 3) Short sales –Taxpayer sells borrowed securities and then repays the lender with substantially identical securities –Gain or loss is not recognized until the short sale is closed –Generally, the holding period for a short sale is determined by how long the property used for repayment is held If substantially identical property (e.g., other shares of the same stock) is held by the taxpayer, the short-term or long-term character of the short sale gain or loss may be affected

36 The Big Picture - Example 21 Holding Period Return to the facts of The Big Picture on p Assume that Maurice purchased the Purple stock on January 15, –If he sells it on January 16, 2014, Maurice’s holding period is more than one year. –If instead Maurice sells the stock on January 15, 2014, the holding period is exactly one year, and the gain or loss is short term.

37 Tax Treatment of Capital Gains and Losses (slide 1 of 7) Noncorporate taxpayers –Capital gains and losses must be netted by holding period Short-term capital gains and losses are netted Long-term capital gains and losses are netted If possible, long-term gains or losses are then netted with short-term gains or losses –If the result is a loss: –The capital loss deduction is limited to a maximum deduction of $3,000 –Unused amounts retain their character and carryforward indefinitely

38 Tax Treatment of Capital Gains and Losses (slide 2 of 7) Noncorporate taxpayers (cont’d) –If net from capital transactions is a gain, tax treatment depends on holding period Short-term (assets held 12 months or less) –Taxed at ordinary income tax rates Long-term (assets held more than 12 months) –An alternative tax calculation is available using preferential tax rates

39 Tax Treatment of Capital Gains and Losses (slide 3 of 7) Noncorporate taxpayers (cont’d) –Net long-term capital gain is eligible for one or more of five alternative tax rates: 0%, 15%, 20%, 25%, and 28% The 25% rate applies to unrecaptured §1250 gain and is related to gain from disposition of §1231 assets The 28% rate applies to collectibles The 0%/15%/20% rates apply to any remaining net long-term capital gain –Under the American Taxpayer Relief Act of 2012, the 20% rate applies beginning in 2013 when the taxpayer’s regular tax bracket is 39.6%

40 Tax Treatment of Capital Gains and Losses (slide 4 of 7) Income Layers for Alternative Tax on Capital Gain Computation

41 Tax Treatment of Capital Gains and Losses (slide 5 of 7) Collectibles, even though they are held long term, are subject to a 28% alternative tax rate Collectibles include any: –Work of art –Rug or antique –Metal or gem –Stamp –Alcoholic beverage –Historical objects (documents, clothes, etc.) –Most coins

42 Tax Treatment of Capital Gains and Losses (slide 6 of 7) Qualified dividend income paid from current or acc. E & P is eligible for the 0%/15%/20% long-term capital gain rates –After determining net capital gain or loss, qualified dividend income is added to the net long-term capital gain portion of the net capital gain and is taxed as 0%/15%/20% gain –If there is a net capital loss, it is still deductible for AGI Limited to $3,000 per year with the remainder of the loss carrying over In this case, the qualified dividend income is still eligible to be treated as 0%/15%/20% gain in the alternative tax calculation –It is not offset by the net capital loss

43 Tax Treatment of Capital Gains and Losses (slide 7 of 7) The alternative tax on net capital gain applies only if taxable income includes some net long-term capital gain –Net capital gain may be made up of various rate layers For each layer, compare the regular tax rate with the alternative tax rate on that portion of the net capital gain –The layers are taxed in the following order: 25% gain, 28% gain, the 0% portion of the 0%/15%/20% gain, the 15% portion of the 0%/15%/20% gain, and then the 20% portion of the 0%/15%/20% gain. This allows the taxpayer to receive the lower of the regular tax or the alternative tax on each layer of net capital gain

44 The Big Picture - Example 37 Qualified Dividend Income Return to the facts of The Big Picture on p After holding the Purple stock for 10 months, Maurice receives $350 of dividends. –If Purple is a domestic or qualifying foreign corporation, these are qualified dividends eligible for the 0%/15%/20% tax rate.

45 Tax Treatment of Capital Gains and Losses - Corporate Taxpayers Differences in corporate capital treatment –There is a NCG alternative tax rate of 35 % Since the max corporate tax rate is 35 %, the alternative tax is not beneficial –Net capital losses can only offset capital gains (i.e., no $3,000 deduction in excess of capital gains) –Net capital losses are carried back 3 years and carried forward 5 years as short-term losses

46 §1231 Assets (slide 1 of 4) §1231 assets defined –Depreciable and real property used in a business or for production of income and held >1 year –Includes timber, coal, iron, livestock, unharvested crops –Certain purchased intangibles

47 §1231 Assets (slide 2 of 4) §1231 property does not include the following: –Property not held for the long-term holding period –Nonpersonal use property where casualty losses exceed casualty gains for the taxable year –Inventory and property held primarily for sale to customers –Copyrights, literary, musical, or artistic compositions and certain U.S. government publications –Accounts receivable and notes receivable arising in the ordinary course of a trade or business

48 §1231 Assets (slide 3 of 4) If transactions involving §1231 assets result in: –Net §1231 loss = ordinary loss –Net §1231 gain = long-term capital gain

49 §1231 Assets (slide 4 of 4) Provides the best of potential results for the taxpayer –Ordinary loss that is fully deductible for AGI –Gains subject to the lower capital gains tax rates

50 Special Rules For Certain §1231 Assets (slide 1 of 2) Casualty gains and losses from §1231 assets and from long-term nonpersonal use capital assets are determined and netted together If a net loss, items are treated separately –§1231 casualty gains and nonpersonal use capital asset casualty gains are treated as ordinary gains –§1231 casualty losses are deductible for AGI –Nonpersonal use capital asset casualty losses are deductible from AGI subject to the 2% of AGI limitation If a net gain, treat as §1231 gain

51 Special Rules For Certain §1231 Assets (slide 2 of 2) The special netting process for casualties & thefts does not include condemnation gains and losses –A § 1231 asset disposed of by condemnation receives § 1231 treatment Personal use property condemnation gains and losses are not subject to the § 1231 rules –Gains are capital gains Personal use property is a capital asset –Losses are nondeductible They arise from the disposition of personal use property

52 General Procedure for § 1231 Computation (slide 1 of 3) Step 1: Casualty Netting –Net all recognized long-term gains & losses from casualties of § 1231 assets and nonpersonal use capital assets If casualty gains exceed casualty losses, add the excess to the other § 1231 gains for the taxable year If casualty losses exceed casualty gains, exclude all casualty losses and gains from further § 1231 computation –All casualty gains are ordinary income –Section 1231 asset casualty losses are deductible for AGI –Other casualty losses are deductible from AGI

53 General Procedure for § 1231 Computation (slide 2 of 3) Step 2: § 1231 Netting –After adding any net casualty gain from previous step to the other § 1231 gains and losses, net all § 1231 gains and losses If gains exceed the losses, net gain is offset by the ‘‘lookback’’ nonrecaptured § 1231 losses from the 5 prior tax years –To the extent of this offset, the net § 1231 gain is classified as ordinary gain –Any remaining gain is long-term capital gain If the losses exceed the gains, all gains are ordinary income –Section 1231 asset losses are deductible for AGI –Other casualty losses are deductible from AGI

54 General Procedure for § 1231 Computation (slide 3 of 3) Step 3: § 1231 Lookback Provision –The net § 1231 gain from the previous step is offset by the nonrecaptured net § 1231 losses for the five preceding taxable years To the extent of the nonrecaptured net § 1231 loss, the current-year net § 1231 gain is ordinary income –The nonrecaptured net § 1231 losses are those that have not already been used to offset net § 1231 gains Only the net § 1231 gain exceeding this net § 1231 loss carryforward is given long-term capital gain treatment

55 Lookback Provision Example Taxpayer had the following net §1231 gains and losses: 2012$ 4,000 loss 2013$10,000 loss 2014$16,000 gain –In 2014, taxpayer’s net §1231 gain of $16,000 will be treated as $14,000 of ordinary income and $2,000 of long-term capital gain

Section 1231 Netting Procedure 56

57 Depreciation Recapture (slide 1 of 3) Assets subject to depreciation or cost recovery may be subject to depreciation recapture when disposed of at a gain –Losses on depreciable assets receive §1231 treatment No recapture occurs in loss situations

58 Depreciation Recapture (slide 2 of 3) Depreciation recapture characterizes gains that would appear to be §1231 as ordinary gain –The Code contains two major recapture provisions §1245 §1250

59 Depreciation Recapture (slide 3 of 3) Depreciation recapture provisions generally override all other Code Sections –There are exceptions to depreciation recapture rules, for example: In dispositions where all gain is not recognized –e.g., like-kind exchanges, involuntary conversions Where gain is not recognized at all –e.g., gifts and inheritances

60 §1245 Recapture (slide 1 of 3) Depreciation recapture for §1245 property –Applies to tangible and intangible personalty, and nonresidential realty using accelerated methods of ACRS (placed in service ) Recapture potential is entire amount of accumulated depreciation for asset Method of depreciation does not matter

61 §1245 Recapture (slide 2 of 3) When gain on the disposition of a §1245 asset is less than the total amount of accumulated depreciation: –The total gain will be treated as depreciation recapture (i.e., ordinary income)

62 §1245 Recapture (slide 3 of 3) When the gain on the disposition of a §1245 asset is greater than the total amount of accumulated depreciation: –Total accumulated depreciation will be recaptured (as ordinary income), and –The gain in excess of depreciation recapture will be §1231 gain or capital gain

§1245 Recapture Example (slide 1 of 2) On January 1, 2014, Jake sold for $26,000 a machine acquired several years ago for $24,000. He had taken $20,000 of depreciation on the machine. Amount Realized$26,000 Adj. Basis-Cost$24,000 Acc. Depr. -20,000 4,000 Realized Gain$22,000 Sec – Ordinary Income 20,000 Sec Gain$ 2,000 63

§1245 Recapture Example (slide 2 of 2) Same as previous example except Jake sold the machine for $18,000. Amount Realized$18,000 Adj. Basis-Cost$24,000 Acc. Depr. -20,000 4,000 Realized Gain$14,000 Sec – Ordinary Income 14,000 Sec Gain$ -0- The § 1231 gain is $0 because the selling price ($18,000) does not exceed the original purchase price ($24,000). 64

65 Observations on § 1245 (slide 1 of 3) Usually total depreciation taken will exceed the recognized gain –Therefore, disposition of § 1245 property usually results in ordinary income rather than § 1231 gain –Thus, generally, no § 1231 gain will occur unless the § 1245 property is disposed of for more than its original cost

66 Observations on § 1245 (slide 2 of 3) Recapture applies to the total amount of depreciation allowed or allowable regardless of –The depreciation method used –The holding period of the property If held for < the long-term holding period the entire recognized gain is ordinary income because § 1231 does not apply

67 Observations on § 1245 (slide 3 of 3) Section 1245 does not apply to losses which receive § 1231 treatment Gains from the disposition of § 1245 assets may also be treated as passive activity gains

68 §1250 Recapture (slide 1 of 3) Depreciation recapture for §1250 property –Applies to depreciable real property Exception: Nonresidential realty classified as §1245 property (i.e., placed in service after 1980 and before 1987, and accelerated depreciation used) –Intangible real property, such as leaseholds of § 1250 property, is also included

69 §1250 Recapture (slide 2 of 3) Section 1250 recapture rarely applies since only the amount of additional depreciation is subject to recapture –To have additional depreciation, accelerated depreciation must have been taken on the asset Straight-line depreciation is not recaptured (except for property held one year or less) –Depreciable real property placed in service after 1986 can generally only be depreciated using the straight-line method Therefore, no depreciation recapture potential for such property –§ 1250 does not apply if the real property is sold at a loss

70 §1250 Recapture (slide 3 of 3) The § 1250 recapture rules also apply to the following property for which accelerated depreciation was used: – Additional first-year depreciation [§ 168(k)] exceeding straight-line depreciation taken on leasehold improvements, qualified restaurant property, and qualified retail improvement property. –Immediate expense deduction [§ 179(f)] exceeding straight- line depreciation taken on leasehold improvements, qualified restaurant property, and qualified retail improvement property.

71 Real Estate 25% Gain (slide 1 of 4) Also called unrecaptured §1250 gain or 25% gain –25% gain is some or all of the §1231 gain treated as long-term capital gain –Used in the alternative tax computation for net capital gain

72 Real Estate 25% Gain (slide 2 of 4) Maximum amount of 25% gain is depreciation taken on real property sold at a recognized gain reduced by: –Certain §1250 and §1245 depreciation recapture –Losses from other §1231 assets –§1231 lookback losses Limited to recognized gain when total gain is less than depreciation taken

73 Real Estate 25% Gain (slide 3 of 4) Special 25% Gain Netting Rules –Where there is a § 1231 gain from real estate and that gain includes both potential 25% gain and potential 0%/15%/20% gain, any § 1231 loss from disposition of other § 1231 assets First offsets the 0%/15%/20% portion of the § 1231 gain Then offsets the 25% portion of the § 1231 gain –Also, any § 1231 lookback loss First recharacterizes the 25% portion of the § 1231 gain Then recharacterizes the 0%/15%/20% portion of the § 1231 gain as ordinary income

74 Real Estate 25% Gain (slide 4 of 4) Net § 1231 Gain Limitation –The amount of unrecaptured § 1250 gain may not exceed the net § 1231 gain that is eligible to be treated as long- term capital gain –The unrecaptured § 1250 gain is the lesser of The unrecaptured § 1250 gain, or The net § 1231 gain that is treated as capital gain –Thus, if there is a net § 1231 gain, but it is all recaptured by the 5 year § 1231 lookback loss provision, there is no surviving § 1231 gain or unrecaptured § 1250 gain

75 Related Effects of Recapture (slide 1 of 8) Gifts –The carryover basis of gifts, from donor to donee, also carries over depreciation recapture potential associated with asset –That is, donee steps into shoes of donor with regard to depreciation recapture potential

76 Related Effects of Recapture (slide 2 of 8) Inheritance –Death is only way to eliminate recapture potential –That is, depreciation recapture potential does not carry over from decedent to heir

77 Related Effects of Recapture (slide 3 of 8) Charitable contributions –Recapture potential reduces the amount of charitable contribution deductions that are based on FMV

78 Related Effects of Recapture (slide 4 of 8) Nontaxable transactions –When the transferee carries over the basis of the transferor, the recapture potential also carries over Included in this category are transfers of property pursuant to the following: –Nontaxable incorporations under § 351 –Certain liquidations of subsidiary companies under § 332 –Nontaxable contributions to a partnership under § 721 –Nontaxable reorganizations –Gain may be recognized in these transactions if boot is received If gain is recognized, it is treated as ordinary income to the extent of the recapture potential or recognized gain, whichever is lower

79 Related Effects of Recapture (slide 5 of 8) Like-kind exchanges and involuntary conversions –Property received in these transactions have a substituted basis Basis of former property and its recapture potential is substituted for basis of new property –Any gain recognized on the transaction will first be treated as depreciation recapture, then as §1231 or capital gain Any remaining recapture potential carries over

80 Related Effects of Recapture (slide 6 of 8) Installment sales –Recapture gain is recognized in year of sale regardless of whether gain is otherwise recognized under the installment method

81 Related Effects of Recapture (slide 7 of 8) Property Dividends –A corporation generally recognizes gain on the distribution of appreciated property to shareholders –Recapture applies to the extent of the lower of the recapture potential or the excess of the property’s FMV over its adjusted basis

82 Related Effects of Recapture (slide 8 of 8) Sales between related parties –Sales of depreciable assets between related parties can cause the total gain to be recognized as ordinary income Applies to related party sales or exchanges of property that is depreciable in hands of transferee

83 Refocus On The Big Picture (slide 1 of 3) Maurice is correct that certain capital gains and dividends are eligible for preferential tax treatment –Tax rates of 0%, 15%, or 20% may apply rather than regular tax rates. You then discuss the potential tax consequences of each of his investments. –Purple stock and Eagle stock- To qualify for the beneficial tax rate, the holding period for the stock must be longer than one year. From a tax perspective, Maurice should retain his stock investments for at least an additional three months and a day. To be eligible for the ‘‘costless’’ capital gains, his taxable income should not exceed $36,900 for The dividends received on the Purple stock are “qualified dividends” eligible for the 0%/15%/20% alternative tax rate.

84 Refocus On The Big Picture (slide 2 of 3) Patent - Since he is a ‘‘holder’’ of the patent, it will qualify for the beneficial capital gain rate regardless of the holding period if the patent should produce income in excess of his $50,000 investment. –However, if he loses money on the investment, he will be able to deduct only $3,000 of the loss per year (assuming no other capital gains). Tax-exempt bonds. –The after-tax return on the taxable bonds would be less than the 3% on the tax-exempt bonds. –In addition, the interest on the taxable bonds would increase his taxable income, possibly moving it out of the desired 15% marginal tax rate into the 25% marginal tax rate.

85 Refocus On The Big Picture (slide 3 of 3) Franchise rights. –The franchise rights purchased from Orange, Inc., probably require the payment of a franchise fee based upon sales in the franchise business. –Maurice should either start such a business or sell the franchise rights. Partnership interest. –The tax treatment related to his partnership interest depends on whether he is reporting His share of profits or losses –Ordinary income or ordinary loss, or Recognized gain or loss from the sale of his partnership interest –Capital gain or capital loss. You conclude your tax advice to Maurice by telling him that his investments should make economic sense. –There are no 100% tax rates. –For example, disposing of the bank stock in the current market could be the wise thing to do.

© 2015 Cengage Learning. All Rights Reserved. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part. 86 If you have any comments or suggestions concerning this PowerPoint Presentation for South-Western Federal Taxation, please contact: Dr. Donald R. Trippeer, CPA SUNY Oneonta