Subchapter E—Accounting Periods and Methods of Accounting
PART I—ACCOUNTING PERIODS
Editorial Notes
Amendments
1987—
§441. Period for computation of taxable income
(a) Computation of taxable income
Taxable income shall be computed on the basis of the taxpayer's taxable year.
(b) Taxable year
For purposes of this subtitle, the term "taxable year" means—
(1) the taxpayer's annual accounting period, if it is a calendar year or a fiscal year;
(2) the calendar year, if subsection (g) applies;
(3) the period for which the return is made, if a return is made for a period of less than 12 months; or
(4) in the case of a DISC filing a return for a period of at least 12 months, the period determined under subsection (h).
(c) Annual accounting period
For purposes of this subtitle, the term "annual accounting period" means the annual period on the basis of which the taxpayer regularly computes his income in keeping his books.
(d) Calendar year
For purposes of this subtitle, the term "calendar year" means a period of 12 months ending on December 31.
(e) Fiscal year
For purposes of this subtitle, the term "fiscal year" means a period of 12 months ending on the last day of any month other than December. In the case of any taxpayer who has made the election provided by subsection (f) the term means the annual period (varying from 52 to 53 weeks) so elected.
(f) Election of year consisting of 52–53 weeks
(1) General rule
A taxpayer who, in keeping his books, regularly computes his income on the basis of an annual period which varies from 52 to 53 weeks and ends always on the same day of the week and ends always—
(A) on whatever date such same day of the week last occurs in a calendar month, or
(B) on whatever date such same day of the week falls which is nearest to the last day of a calendar month,
may (in accordance with the regulations prescribed under paragraph (3)) elect to compute his taxable income for purposes of this subtitle on the basis of such annual period. This paragraph shall apply to taxable years ending after the date of the enactment of this title.
(2) Special rules for 52–53-week year
(A) Effective dates
In any case in which the effective date or the applicability of any provision of this title is expressed in terms of taxable years beginning, including, or ending with reference to a specified date which is the first or last day of a month, a taxable year described in paragraph (1) shall (except for purposes of the computation under section 15) be treated—
(i) as beginning with the first day of the calendar month beginning nearest to the first day of such taxable year, or
(ii) as ending with the last day of the calendar month ending nearest to the last day of such taxable year,
as the case may be.
(B) Change in accounting period
In the case of a change from or to a taxable year described in paragraph (1)—
(i) if such change results in a short period (within the meaning of section 443) of 359 days or more, or of less than 7 days, section 443(b) (relating to alternative tax computation) shall not apply;
(ii) if such change results in a short period of less than 7 days, such short period shall, for purposes of this subtitle, be added to and deemed a part of the following taxable year; and
(iii) if such change results in a short period to which subsection (b) of section 443 applies, the taxable income for such short period shall be placed on an annual basis for purposes of such subsection by multiplying the gross income for such short period (minus the deductions allowed by this chapter for the short period, but only the adjusted amount of the deductions for personal exemptions as described in section 443(c)) by 365, by dividing the result by the number of days in the short period, and the tax shall be the same part of the tax computed on the annual basis as the number of days in the short period is of 365 days.
(3) Special rule for partnerships, S corporations, and personal service corporations
The Secretary may by regulation provide terms and conditions for the application of this subsection to a partnership, S corporation, or personal service corporation (within the meaning of section 441(i)(2)).
(4) Regulations
The Secretary shall prescribe such regulations as he deems necessary for the application of this subsection.
(g) No books kept; no accounting period
Except as provided in section 443 (relating to returns for periods of less than 12 months), the taxpayer's taxable year shall be the calendar year if—
(1) the taxpayer keeps no books;
(2) the taxpayer does not have an annual accounting period; or
(3) the taxpayer has an annual accounting period, but such period does not qualify as a fiscal year.
(h) Taxable year of DISC's
(1) In general
For purposes of this subtitle, the taxable year of any DISC shall be the taxable year of that shareholder (or group of shareholders with the same 12-month taxable year) who has the highest percentage of voting power.
(2) Special rule where more than one shareholder (or group) has highest percentage
If 2 or more shareholders (or groups) have the highest percentage of voting power under paragraph (1), the taxable year of the DISC shall be the same 12-month period as that of any such shareholder (or group).
(3) Subsequent changes of ownership
The Secretary shall prescribe regulations under which paragraphs (1) and (2) shall apply to a change of ownership of a corporation after the taxable year of the corporation has been determined under paragraph (1) or (2) only if such change is a substantial change of ownership.
(4) Voting power determined
For purposes of this subsection, voting power shall be determined on the basis of total combined voting power of all classes of stock of the corporation entitled to vote.
(i) Taxable year of personal service corporations
(1) In general
For purposes of this subtitle, the taxable year of any personal service corporation shall be the calendar year unless the corporation establishes, to the satisfaction of the Secretary, a business purpose for having a different period for its taxable year. For purposes of this paragraph, any deferral of income to shareholders shall not be treated as a business purpose.
(2) Personal service corporation
For purposes of this subsection, the term "personal service corporation" has the meaning given such term by section 269A(b)(1), except that section 269A(b)(2) shall be applied—
(A) by substituting "any" for "more than 10 percent", and
(B) by substituting "any" for "50 percent or more in value" in section 318(a)(2)(C).
A corporation shall not be treated as a personal service corporation unless more than 10 percent of the stock (by value) in such corporation is held by employee-owners (within the meaning of section 269A(b)(2), as modified by the preceding sentence). If a corporation is a member of an affiliated group filing a consolidated return, all members of such group shall be taken into account in determining whether such corporation is a personal service corporation.
(Aug. 16, 1954, ch. 736,
Editorial Notes
Amendments
2007—Subsec. (b)(4).
Subsec. (h).
1988—Subsec. (i)(2).
1986—Subsec. (f)(2)(B)(iii).
Subsec. (f)(3), (4).
Subsec. (i).
1984—Subsec. (b)(4).
Subsec. (f)(2)(A).
Subsec. (h).
1977—Subsec. (f)(2)(B)(iii).
1976—Subsec. (f)(3).
1964—Subsec. (f)(2)(A).
Statutory Notes and Related Subsidiaries
Effective Date of 1988 Amendment
Amendment by
Effective Date of 1986 Amendment
Amendment by section 104(b)(6) of
Amendment by section 806(c)(1), (d) of
Effective Date of 1984 Amendment
Amendment by section 474(b)(2) of
Amendment by section 803 of
Effective Date of 1977 Amendment
Amendment by
Effective Date of 1964 Amendment
Amendment by
Construction of Section 806 of Pub. L. 99–514
Nothing in section 806 of
§442. Change of annual accounting period
If a taxpayer changes his annual accounting period, the new accounting period shall become the taxpayer's taxable year only if the change is approved by the Secretary. For purposes of this subtitle, if a taxpayer to whom section 441(g) applies adopts an annual accounting period (as defined in section 441(c)) other than a calendar year, the taxpayer shall be treated as having changed his annual accounting period.
(Aug. 16, 1954, ch. 736,
Editorial Notes
Amendments
1976—
§443. Returns for a period of less than 12 months
(a) Returns for short period
A return for a period of less than 12 months (referred to in this section as "short period") shall be made under any of the following circumstances:
(1) Change of annual accounting period
When the taxpayer, with the approval of the Secretary, changes his annual accounting period. In such a case, the return shall be made for the short period beginning on the day after the close of the former taxable year and ending at the close of the day before the day designated as the first day of the new taxable year.
(2) Taxpayer not in existence for entire taxable year
When the taxpayer is in existence during only part of what would otherwise be his taxable year.
(b) Computation of tax on change of annual accounting period
(1) General rule
If a return is made under paragraph (1) of subsection (a), the taxable income for the short period shall be placed on an annual basis by multiplying the modified taxable income for such short period by 12, dividing the result by the number of months in the short period. The tax shall be the same part of the tax computed on the annual basis as the number of months in the short period is of 12 months.
(2) Exception
(A) Computation based on 12-month period
If the taxpayer applies for the benefits of this paragraph and establishes the amount of this taxable income for the 12-month period described in subparagraph (B), computed as if that period were a taxable year and under the law applicable to that year, then the tax for the short period, computed under paragraph (1), shall be reduced to the greater of the following:
(i) an amount which bears the same ratio to the tax computed on the taxable income for the 12-month period as the modified taxable income computed on the basis of the short period bears to the modified taxable income for the 12-month period; or
(ii) the tax computed on the modified taxable income for the short period.
The taxpayer (other than a taxpayer to whom subparagraph (B)(ii) applies) shall compute the tax and file his return without the application of this paragraph.
(B) 12-month period
The 12-month period referred to in subparagraph (A) shall be—
(i) the period of 12 months beginning on the first day of the short period, or
(ii) the period of 12 months ending at the close of the last day of the short period, if at the end of the 12 months referred to in clause (i) the taxpayer is not in existence or (if a corporation) has theretofore disposed of substantially all of its assets.
(C) Application for benefits
Application for the benefits of this paragraph shall be made in such manner and at such time as the regulations prescribed under subparagraph (D) may require; except that the time so prescribed shall not be later than the time (including extensions) for filing the return for the first taxable year which ends on or after the day which is 12 months after the first day of the short period. Such application, in case the return was filed without regard to this paragraph, shall be considered a claim for credit or refund with respect to the amount by which the tax is reduced under this paragraph.
(D) Regulations
The Secretary shall prescribe such regulations as he deems necessary for the application of this paragraph.
(3) Modified taxable income defined
For purposes of this subsection the term "modified taxable income" means, with respect to any period, the gross income for such period minus the deductions allowed by this chapter for such period (but, in the case of a short period, only the adjusted amount of the deductions for personal exemptions).
(c) Adjustment in deduction for personal exemption
In the case of a taxpayer other than a corporation, if a return is made for a short period by reason of subsection (a)(1) and if the tax is not computed under subsection (b)(2), then the exemptions allowed as a deduction under section 151 (and any deduction in lieu thereof) shall be reduced to amounts which bear the same ratio to the full exemptions as the number of months in the short period bears to 12.
(d) Adjustment in computing minimum tax and tax preferences
If a return is made for a short period by reason of subsection (a)—
(1) the alternative minimum taxable income for the short period shall be placed on an annual basis by multiplying such amount by 12 and dividing the result by the number of months in the short period, and
(2) the amount computed under paragraph (1) of section 55(a) shall bear the same relation to the tax computed on the annual basis as the number of months in the short period bears to 12.
(e) Cross references
For inapplicability of subsection (b) in computing—
(1) Accumulated earnings tax, see section 536.
(2) Personal holding company tax, see section 546.
(3) The taxable income of a regulated investment company, see section 852(b)(2)(E).
(4) The taxable income of a real estate investment trust, see section 857(b)(2)(C).
For returns for a period of less than 12 months in the case of a debtor's election to terminate a taxable year, see section 1398(d)(2)(E).
(Aug. 16, 1954, ch. 736,
Editorial Notes
Amendments
2004—Subsec. (e)(3) to (5).
1986—Subsec. (b)(1).
Subsec. (b)(2)(A)(ii).
Subsec. (d).
"(1) in the case of a taxpayer other than a corporation, the alternative minimum taxable income for the short period shall be placed on an annual basis by multiplying that amount by 12 and dividing the result by the number of months in the short period, and the amount computed under paragraph (1) of section 55(a) shall be the same part of the tax computed on the annual basis as the number of months in the short period is of 12 months; and
"(2) the $10,000 amount specified in section 56 (relating to minimum tax for tax preferences), modified as provided by section 58, shall be reduced to the amount which bears the same ratio to such specified amount as the number of days in the short period bears to 365."
1983—Subsec. (e).
1980—Subsec. (d)(2).
Subsec. (e).
1978—Subsec. (b)(1).
Subsec. (b)(2).
Subsec. (b)(3).
Subsec. (d).
1977—Subsec. (b)(1).
1976—Subsec. (a)(1).
Subsec. (a)(3).
Subsec. (b)(2)(D).
Subsec. (d).
Subsec. (e)(5).
1969—Subsecs. (d), (e).
1960—Subsec. (d)(5).
Statutory Notes and Related Subsidiaries
Effective Date of 2004 Amendment
Amendment by
Effective Date of 1986 Amendment
Amendment by section 104(b)(7) of
Amendment by section 701(e)(3) of
Effective Date of 1983 Amendment
Effective Date of 1980 Amendment
Amendment by
Amendment by
Effective Date of 1978 Amendment
Amendment by section 421(e)(2) of
Effective Date of 1977 Amendment
Amendment by
Effective Date of 1976 Amendment
Amendment by section 1204(c)(2) of
For effective date of amendment by section 1607(b)(1)(C) of
Effective Date of 1969 Amendment
Amendment by
Effective Date of 1960 Amendment
Amendment by
Applicability of Certain Amendments by Pub. L. 99–514 in Relation to Treaty Obligations of United States
For applicability of amendment by section 701(e)(3) of
§444. Election of taxable year other than required taxable year
(a) General rule
Except as otherwise provided in this section, a partnership, S corporation, or personal service corporation may elect to have a taxable year other than the required taxable year.
(b) Limitations on taxable years which may be elected
(1) In general
Except as provided in paragraphs (2) and (3), an election may be made under subsection (a) only if the deferral period of the taxable year elected is not longer than 3 months.
(2) Changes in taxable year
Except as provided in paragraph (3), in the case of an entity changing a taxable year, an election may be made under subsection (a) only if the deferral period of the taxable year elected is not longer than the shorter of—
(A) 3 months, or
(B) the deferral period of the taxable year which is being changed.
(3) Special rule for entities retaining 1986 taxable years
In the case of an entity's 1st taxable year beginning after December 31, 1986, an entity may elect a taxable year under subsection (a) which is the same as the entity's last taxable year beginning in 1986.
(4) Deferral period
For purposes of this subsection, except as provided in regulations, the term "deferral period" means, with respect to any taxable year of the entity, the months between—
(A) the beginning of such year, and
(B) the close of the 1st required taxable year ending within such year.
(c) Effect of election
If an entity makes an election under subsection (a), then—
(1) in the case of a partnership or S corporation, such entity shall make the payments required by section 7519, and
(2) in the case of a personal service corporation, such corporation shall be subject to the deduction limitations of section 280H.
(d) Elections
(1) Person making election
An election under subsection (a) shall be made by the partnership, S corporation, or personal service corporation.
(2) Period of election
(A) In general
Any election under subsection (a) shall remain in effect until the partnership, S corporation, or personal service corporation changes its taxable year or otherwise terminates such election. Any change to a required taxable year may be made without the consent of the Secretary.
(B) No further election
If an election is terminated under subparagraph (A) or paragraph (3)(A), the partnership, S corporation, or personal service corporation may not make another election under subsection (a).
(3) Tiered structures, etc.
(A) In general
Except as otherwise provided in this paragraph—
(i) no election may be under subsection (a) with respect to any entity which is part of a tiered structure, and
(ii) an election under subsection (a) with respect to any entity shall be terminated if such entity becomes part of a tiered structure.
(B) Exceptions for structures consisting of certain entities with same taxable year
Subparagraph (A) shall not apply to any tiered structure which consists only of partnerships or S corporations (or both) all of which have the same taxable year.
(e) Required taxable year
For purposes of this section, the term "required taxable year" means the taxable year determined under section 706(b), 1378, or 441(i) without taking into account any taxable year which is allowable by reason of business purposes. Solely for purposes of the preceding sentence, sections 706(b), 1378, and 441(i) shall be treated as in effect for taxable years beginning before January 1, 1987.
(f) Personal service corporation
For purposes of this section, the term "personal service corporation" has the meaning given to such term by section 441(i)(2).
(g) Regulations
The Secretary shall prescribe such regulations as may be necessary to carry out the provisions of this section, including regulations to prevent the avoidance of subsection (b)(2)(B) or (d)(2)(B) through the change in form of an entity.
(Added
Editorial Notes
Amendments
1988—Subsec. (a).
Subsec. (b)(4).
Subsec. (d)(2)(A).
Subsec. (d)(2)(B).
Subsec. (d)(3).
Subsecs. (f), (g).
Statutory Notes and Related Subsidiaries
Effective Date of 1988 Amendment
Amendment by
Effective Date
"(1)
"(2)
"(3)
"(4)
"(A) made an election after September 18, 1986, and before January 1, 1988, under section 1362 of such Code to be treated as an S corporation, and
"(B) elected to have the calendar year as the taxable year of the S corporation,
then section 444(b)(2)(B) of such Code shall be applied by taking into account the deferral period of the last taxable year of the C corporation rather than the deferral period of the taxable year being changed. The preceding sentence shall apply only in the case of an election under section 444 of such Code made for a taxable year beginning before 1989."
PART II—METHODS OF ACCOUNTING
Subpart A—Methods of Accounting in General
Editorial Notes
Amendments
1986—
1976—
§446. General rule for methods of accounting
(a) General rule
Taxable income shall be computed under the method of accounting on the basis of which the taxpayer regularly computes his income in keeping his books.
(b) Exceptions
If no method of accounting has been regularly used by the taxpayer, or if the method used does not clearly reflect income, the computation of taxable income shall be made under such method as, in the opinion of the Secretary, does clearly reflect income.
(c) Permissible methods
Subject to the provisions of subsections (a) and (b), a taxpayer may compute taxable income under any of the following methods of accounting—
(1) the cash receipts and disbursements method;
(2) an accrual method;
(3) any other method permitted by this chapter; or
(4) any combination of the foregoing methods permitted under regulations prescribed by the Secretary.
(d) Taxpayer engaged in more than one business
A taxpayer engaged in more than one trade or business may, in computing taxable income, use a different method of accounting for each trade or business.
(e) Requirement respecting change of accounting method
Except as otherwise expressly provided in this chapter, a taxpayer who changes the method of accounting on the basis of which he regularly computes his income in keeping his books shall, before computing his taxable income under the new method, secure the consent of the Secretary.
(f) Failure to request change of method of accounting
If the taxpayer does not file with the Secretary a request to change the method of accounting, the absence of the consent of the Secretary to a change in the method of accounting shall not be taken into account—
(1) to prevent the imposition of any penalty, or the addition of any amount to tax, under this title, or
(2) to diminish the amount of such penalty or addition to tax.
(Aug. 16, 1954, ch. 736,
Editorial Notes
Amendments
1984—Subsec. (f).
1976—Subsecs. (b), (c), (e).
Statutory Notes and Related Subsidiaries
Effective Date of 1984 Amendment
§447. Method of accounting for corporations engaged in farming
(a) General rule
Except as otherwise provided by law, the taxable income from farming of—
(1) a corporation engaged in the trade or business of farming, or
(2) a partnership engaged in the trade or business of farming, if a corporation is a partner in such partnership,
shall be computed on an accrual method of accounting. This section shall not apply to the trade or business of operating a nursery or sod farm or to the raising or harvesting of trees (other than fruit and nut trees).
(b) Preproductive period expenses
For rules requiring capitalization of certain preproductive period expenses, see section 263A.
(c) Exception for certain corporations
For purposes of subsection (a), a corporation shall be treated as not being a corporation for any taxable year if it is—
(1) an S corporation, or
(2) a corporation which meets the gross receipts test of section 448(c) for such taxable year.
(d) Coordination with section 481
Any change in method of accounting made pursuant to this section shall be treated for purposes of section 481 as initiated by the taxpayer and made with the consent of the Secretary.
(e) Certain annual accrual accounting methods
(1) In general
Notwithstanding subsection (a) or section 263A, if—
(A) for its 10 taxable years ending with its first taxable year beginning after December 31, 1975, a corporation or qualified partnership used an annual accrual method of accounting with respect to its trade or business of farming,
(B) such corporation or qualified partnership raises crops which are harvested not less than 12 months after planting, and
(C) such corporation or qualified partnership has used such method of accounting for all taxable years intervening between its first taxable year beginning after December 31, 1975, and the taxable year,
such corporation or qualified partnership may continue to employ such method of accounting for the taxable year with respect to its qualified farming trade or business.
(2) Annual accrual method of accounting defined
For purposes of paragraph (1), the term "annual accrual method of accounting" means a method under which revenues, costs, and expenses are computed on an accrual method of accounting and the preproductive period expenses incurred during the taxable year are charged to harvested crops or deducted in determining the taxable income for such years.
(3) Certain nonrecognition transfers
For purposes of this subsection, if—
(A) a corporation acquired substantially all the assets of a qualified farming trade or business from another corporation in a transaction in which no gain or loss was recognized to the transferor or transferee corporation, or
(B) a qualified partnership acquired substantially all the assets of a qualified farming trade or business from one of its partners in a transaction to which section 721 applies,
the transferee corporation or qualified partnership shall be deemed to have computed its taxable income on an annual accrual method of accounting during the period for which the transferor corporation or partnership computed its taxable income from such trade or business on an annual accrual method.
(4) Qualified partnership defined
For purposes of this subsection—
(A) Qualified partnership
The term "qualified partnership" means a partnership which is engaged in a qualified farming trade or business and each of the partners of which is a corporation other than—
(i) an S corporation, or
(ii) a personal holding company (within the meaning of section 542(a)).
(B) Qualified farming trade or business
(i) In general
The term "qualified farming trade or business" means the trade or business of farming—
(I) sugar cane,
(II) any plant with a preproductive period (as defined in section 263A(e)(3)) of 2 years or less, and
(III) any other plant (other than any citrus or almond tree) if an election by the corporation under this subparagraph is in effect.
In the case of a partnership and for purposes of paragraph (3)(A), subclauses (II) and (III) shall not apply.
(ii) Effect of election
For purposes of paragraphs (1) and (2) of section 263A(e), any election under this subparagraph shall be treated as if it were an election under subsection (d)(3) of section 263A.
(iii) Election
Unless the Secretary otherwise consents, an election under this subparagraph may be made only for the corporation's 1st taxable year which begins after December 31, 1986, and during which the corporation engages in a farming business. Any such election, once made, may be revoked only with the consent of the Secretary.
(Added
Editorial Notes
Amendments
2017—Subsec. (c).
Subsec. (c)(2).
Subsec. (d).
Subsec. (e).
Subsec. (f).
Subsec. (g).
Subsecs. (h), (i).
1997—Subsec. (i)(3).
"(A) the gross receipts of the corporation from the trade or business of farming for the year of the change or any subsequent taxable year, is less than
"(B) such gross receipts for the taxpayer's last taxable year beginning before the year of the change (or for the most recent taxable year for which a reduction in the suspense account was made under this paragraph),
the amount in the suspense account (after taking into account prior reductions) shall be reduced by the percentage by which the amount described in subparagraph (A) is less than the amount described in subparagraph (B)."
Subsec. (i)(4).
Subsec. (i)(5), (6).
1990—Subsec. (g)(1)(A).
Subsec. (g)(4)(B).
1988—Subsec. (b).
Subsec. (g)(1).
1987—Subsec. (c).
"(1) an S corporation,
"(2) a corporation of which at least 50 percent of the total combined voting power of all classes of stock entitled to vote, and at least 50 percent of the total number of shares of all other classes of stock of the corporation, are owned by members of the same family, or
"(3) a corporation the gross receipts of which meet the requirements of subsection (e)."
Subsec. (d).
Subsec. (e).
Subsec. (h)(1).
Subsec. (h)(1)(A), (B).
Subsec. (i).
1986—Subsec. (a).
Subsec. (b).
Subsec. (g)(1).
1982—Subsec. (c)(1).
Subsec. (g)(1).
Subsec. (g)(3).
Subsec. (g)(4).
1978—Subsec. (a).
Subsec. (f)(3).
Subsec. (g)(2).
Subsec. (h).
Statutory Notes and Related Subsidiaries
Effective Date of 2017 Amendment
Amendment by
Effective Date of 1997 Amendment
Effective Date of 1990 Amendment
Amendment by
Effective Date of 1988 Amendment
Amendment by
Effective Date of 1987 Amendment
Effective Date of 1986 Amendment
If any interest costs incurred after Dec. 31, 1986, are attributable to costs incurred before Jan. 1, 1987, the amendment by
Amendment by
Effective Date of 1982 Amendment
Amendment by
Effective Date of 1978 Amendment
Amendment by section 703(d) of
Effective Date
"(A)
"(B)
"(i) members of two families (within the meaning of paragraph (1) of [former] section 447(d) of the Internal Revenue Code of 1986 [formerly I.R.C. 1954], as added by paragraph (1)) owned, on October 4, 1976 (directly or through the application of such [former] section 447(d)), at least 65 percent of the total combined voting power of all classes of stock of such corporation entitled to vote, and at least 65 percent of the total number of shares of all other classes of stock of such corporation; or
"(ii) members of three families (within the meaning of paragraph (1) of such [former] section 447(d)) owned, on October 4, 1976 (directly or through the application of such [former] section 447(d)), at least 50 percent of the total combined voting power of all classes of stock of such corporation entitled to vote, and at least 50 percent of the total number of shares of all other classes of stock of such corporation; and substantially all of the stock of such corporation which was not so owned (directly or through the application of such [former] section 447(d)), by members of such three families was owned, on October 4, 1976, directly—
"(I) by employees of the corporation or members of the families (within the meaning of section 267(c)(4) of such Code) of such employees, or
"(II) by a trust for the benefit of the employees of such corporation which is described in section 401(a) of such Code and which is exempt from taxation under section 501(a) of such Code,
the amendments made by paragraph (1) shall apply to taxable years beginning after December 31, 1977."
Accounting for Growing Crops
"(a)
"(1) is a farmer, nurseryman, or florist,
"(2) is on an accrual method of accounting, and
"(3) is not required by section 447 of the Internal Revenue Code of 1954 to capitalize preproductive period expenses.
"(b)
"(c)
"(d)
"(1) shall not require the consent of the Secretary of the Treasury or his delegate, and
"(2) shall be treated, for purposes of section 481 of the Internal Revenue Code of 1954 as a change in the method of accounting initiated by the taxpayer.
"(e)
Automatic Ten-Year Adjustment for Farming Syndicates Changing to Accrual Accounting
"(A) a farming syndicate (within the meaning of [former] section 464(c) of the Internal Revenue Code of 1954 [now
"(B) such syndicate elects an accrual method of accounting (including the capitalization of preproductive period expenses described in section 447(b) of such Code) for a taxable year beginning before January 1, 1979,
then such election shall be treated as having been made with the consent of the Secretary of the Treasury or his delegate and, under regulations prescribed by the Secretary of the Treasury or his delegate, the net amount of the adjustments required by section 481(a) of such Code to be taken into account by the taxpayer in computing taxable income shall be taken into account in each of the 10 taxable years (or the remaining taxable years where there is a stated future life of less than 10 taxable years) beginning with the year of change."
Election To Change From Static Value Method to Accrual Method of Accounting
"(A)
"(i) a corporation has computed its taxable income on an annual accrual method of accounting together with a static value method of accounting for deferred costs of growing crops for the 10 taxable years ending with its first taxable year beginning after December 31, 1975,
"(ii) such corporation raises crops which are harvested not less than 12 months after planting, and
"(iii) such corporation elects, within one year after the date of the enactment of this Act [Oct. 4, 1976] and in such manner as the Secretary of the Treasury or his delegate prescribes, to change to the annual accrual method of accounting (within the meaning of section 447(g)(2) [now section 447(e)(2)] of the Internal Revenue Code of 1986 [formerly I.R.C. 1954]) for taxable years beginning after December 31, 1976,
such change shall be treated as having been made with the consent of the Secretary of the Treasury, and, under regulations prescribed by the Secretary of the Treasury or his delegate, the net amount of the adjustments required by section 481(a) of the Internal Revenue Code of 1986 to be taken into account by the taxpayer in computing taxable income shall (except as otherwise provided in such regulations) be taken into account in each of the 10 taxable years beginning with the year of change.
"(B)
"(C)
§448. Limitation on use of cash method of accounting
(a) General rule
Except as otherwise provided in this section, in the case of a—
(1) C corporation,
(2) partnership which has a C corporation as a partner, or
(3) tax shelter,
taxable income shall not be computed under the cash receipts and disbursements method of accounting.
(b) Exceptions
(1) Farming business
Paragraphs (1) and (2) of subsection (a) shall not apply to any farming business.
(2) Qualified personal service corporations
Paragraphs (1) and (2) of subsection (a) shall not apply to a qualified personal service corporation, and such a corporation shall be treated as an individual for purposes of determining whether paragraph (2) of subsection (a) applies to any partnership.
(3) Entities which meet gross receipts test
Paragraphs (1) and (2) of subsection (a) shall not apply to any corporation or partnership for any taxable year if such entity (or any predecessor) meets the gross receipts test of subsection (c) for such taxable year.
(c) Gross receipts test
For purposes of this section—
(1) In general
A corporation or partnership meets the gross receipts test of this subsection for any taxable year if the average annual gross receipts of such entity for the 3-taxable-year period ending with the taxable year which precedes such taxable year does not exceed $25,000,000.
(2) Aggregation rules
All persons treated as a single employer under subsection (a) or (b) of section 52 or subsection (m) or (o) of section 414 shall be treated as one person for purposes of paragraph (1).
(3) Special rules
For purposes of this subsection—
(A) Not in existence for entire 3-year period
If the entity was not in existence for the entire 3-year period referred to in paragraph (1), such paragraph shall be applied on the basis of the period during which such entity (or trade or business) was in existence.
(B) Short taxable years
Gross receipts for any taxable year of less than 12 months shall be annualized by multiplying the gross receipts for the short period by 12 and dividing the result by the number of months in the short period.
(C) Gross receipts
Gross receipts for any taxable year shall be reduced by returns and allowances made during such year.
(D) Treatment of predecessors
Any reference in this subsection to an entity shall include a reference to any predecessor of such entity.
(4) Adjustment for inflation
In the case of any taxable year beginning after December 31, 2018, the dollar amount in paragraph (1) shall be increased by an amount equal to—
(A) such dollar amount, multiplied by
(B) the cost-of-living adjustment determined under section 1(f)(3) for the calendar year in which the taxable year begins, by substituting "calendar year 2017" for "calendar year 2016" in subparagraph (A)(ii) thereof.
If any amount as increased under the preceding sentence is not a multiple of $1,000,000, such amount shall be rounded to the nearest multiple of $1,000,000.
(d) Definitions and special rules
For purposes of this section—
(1) Farming business
(A) In general
The term "farming business" means the trade or business of farming (within the meaning of section 263A(e)(4)).
(B) Timber and ornamental trees
The term "farming business" includes the raising, harvesting, or growing of trees to which section 263A(c)(5) applies.
(2) Qualified personal service corporation
The term "qualified personal service corporation" means any corporation—
(A) substantially all of the activities of which involve the performance of services in the fields of health, law, engineering, architecture, accounting, actuarial science, performing arts, or consulting, and
(B) substantially all of the stock of which (by value) is held directly (or indirectly through 1 or more partnerships, S corporations, or qualified personal service corporations not described in paragraph (2) or (3) of subsection (a)) by—
(i) employees performing services for such corporation in connection with the activities involving a field referred to in subparagraph (A),
(ii) retired employees who had performed such services for such corporation,
(iii) the estate of any individual described in clause (i) or (ii), or
(iv) any other person who acquired such stock by reason of the death of an individual described in clause (i) or (ii) (but only for the 2-year period beginning on the date of the death of such individual).
To the extent provided in regulations which shall be prescribed by the Secretary, indirect holdings through a trust shall be taken into account under subparagraph (B).
(3) Tax shelter defined
The term "tax shelter" has the meaning given such term by section 461(i)(3) (determined after application of paragraph (4) thereof). An S corporation shall not be treated as a tax shelter for purposes of this section merely by reason of being required to file a notice of exemption from registration with a State agency described in section 461(i)(3)(A), but only if there is a requirement applicable to all corporations offering securities for sale in the State that to be exempt from such registration the corporation must file such a notice.
(4) Special rules for application of paragraph (2)
For purposes of paragraph (2)—
(A) community property laws shall be disregarded,
(B) stock held by a plan described in section 401(a) which is exempt from tax under section 501(a) shall be treated as held by an employee described in paragraph (2)(B)(i), and
(C) at the election of the common parent of an affiliated group (within the meaning of section 1504(a)), all members of such group may be treated as 1 taxpayer for purposes of paragraph (2)(B) if 90 percent or more of the activities of such group involve the performance of services in the same field described in paragraph (2)(A).
(5) Special rule for certain services
(A) In general
In the case of any person using an accrual method of accounting with respect to amounts to be received for the performance of services by such person, such person shall not be required to accrue any portion of such amounts which (on the basis of such person's experience) will not be collected if—
(i) such services are in fields referred to in paragraph (2)(A), or
(ii) such person meets the gross receipts test of subsection (c) for all prior taxable years.
(B) Exception
This paragraph shall not apply to any amount if interest is required to be paid on such amount or there is any penalty for failure to timely pay such amount.
(C) Regulations
The Secretary shall prescribe regulations to permit taxpayers to determine amounts referred to in subparagraph (A) using computations or formulas which, based on experience, accurately reflect the amount of income that will not be collected by such person. A taxpayer may adopt, or request consent of the Secretary to change to, a computation or formula that clearly reflects the taxpayer's experience. A request under the preceding sentence shall be approved if such computation or formula clearly reflects the taxpayer's experience.
(6) Treatment of certain trusts subject to tax on unrelated business income
For purposes of this section, a trust subject to tax under section 511(b) shall be treated as a C corporation with respect to its activities constituting an unrelated trade or business.
(7) Coordination with section 481
Any change in method of accounting made pursuant to this section shall be treated for purposes of section 481 as initiated by the taxpayer and made with the consent of the Secretary.
(8) Use of related parties, etc.
The Secretary shall prescribe such regulations as may be necessary to prevent the use of related parties, pass-thru entities, or intermediaries to avoid the application of this section.
(Added
Inflation Adjusted Items for Certain Years
For inflation adjustment of certain items in this section, see Revenue Procedures listed in a table under
Editorial Notes
Amendments
2017—Subsec. (b)(3).
Subsec. (c).
"(1)
Subsec. (c)(4).
Subsec. (d)(7).
2002—Subsec. (d)(5).
1988—Subsec. (c)(3)(D).
Subsec. (d)(2).
Subsec. (d)(2)(B).
Subsec. (d)(3).
Subsec. (d)(4)(C).
Subsec. (d)(8).
Statutory Notes and Related Subsidiaries
Effective Date of 2017 Amendment
Amendment by
Effective Date of 2002 Amendment
"(1)
"(2)
"(A) such change shall be treated as initiated by the taxpayer,
"(B) such change shall be treated as made with the consent of the Secretary of the Treasury, and
"(C) the net amount of the adjustments required to be taken into account by the taxpayer under section 481 of the Internal Revenue Code of 1986 shall be taken into account over a period of 4 years (or if less, the number of taxable years that the taxpayer used the method permitted under section 448(d)(5) of such Code as in effect before the date of the enactment of this Act) beginning with such first taxable year."
Effective Date of 1988 Amendment
Amendment by section 1008(a)(1), (2), (7)–(9) of
Effective Date
"(1)
"(2)
"(3)
"(A) contracts for the acquisition or transfer of real property, and
"(B) contracts for services related to the acquisition or development of real property,
but only if such contracts were entered into before September 25, 1985, and the sole element of the contract which has not been performed as of September 25, 1985, is payment for such property or services.
"(4)
"(A) was incorporated in the State of Delaware in 1970,
"(B) was the successor to a corporation that was incorporated in the State of Illinois in 1949, and
"(C) used a method of accounting for long-term contracts of accounting [sic] for a substantial part of its income from the performance of engineering services.
"(5)
Subpart B—Taxable Year for Which Items of Gross Income Included
Editorial Notes
Amendments
1988—
1987—
1986—
1980—
1978—
1961—
1958—
1955—Act June 15, 1955, ch. 143, §2(2),
§451. General rule for taxable year of inclusion
(a) General rule
The amount of any item of gross income shall be included in the gross income for the taxable year in which received by the taxpayer, unless, under the method of accounting used in computing taxable income, such amount is to be properly accounted for as of a different period.
(b) Inclusion not later than for financial accounting purposes
(1) Income taken into account in financial statement
(A) In general
In the case of a taxpayer the taxable income of which is computed under an accrual method of accounting, the all events test with respect to any item of gross income (or portion thereof) shall not be treated as met any later than when such item (or portion thereof) is taken into account as revenue in—
(i) an applicable financial statement of the taxpayer, or
(ii) such other financial statement as the Secretary may specify for purposes of this subsection.
(B) Exception
This paragraph shall not apply to—
(i) a taxpayer which does not have a financial statement described in clause (i) or (ii) of subparagraph (A) for a taxable year, or
(ii) any item of gross income in connection with a mortgage servicing contract.
(C) All events test
For purposes of this section, the all events test is met with respect to any item of gross income if all the events have occurred which fix the right to receive such income and the amount of such income can be determined with reasonable accuracy.
(2) Coordination with special methods of accounting
Paragraph (1) shall not apply with respect to any item of gross income for which the taxpayer uses a special method of accounting provided under any other provision of this chapter, other than any provision of part V of subchapter P (except as provided in clause (ii) of paragraph (1)(B)).
(3) Applicable financial statement
For purposes of this subsection, the term "applicable financial statement" means—
(A) a financial statement which is certified as being prepared in accordance with generally accepted accounting principles and which is—
(i) a 10–K (or successor form), or annual statement to shareholders, required to be filed by the taxpayer with the United States Securities and Exchange Commission,
(ii) an audited financial statement of the taxpayer which is used for—
(I) credit purposes,
(II) reporting to shareholders, partners, or other proprietors, or to beneficiaries, or
(III) any other substantial nontax purpose,
but only if there is no statement of the taxpayer described in clause (i), or
(iii) filed by the taxpayer with any other Federal agency for purposes other than Federal tax purposes, but only if there is no statement of the taxpayer described in clause (i) or (ii),
(B) a financial statement which is made on the basis of international financial reporting standards and is filed by the taxpayer with an agency of a foreign government which is equivalent to the United States Securities and Exchange Commission and which has reporting standards not less stringent than the standards required by such Commission, but only if there is no statement of the taxpayer described in subparagraph (A), or
(C) a financial statement filed by the taxpayer with any other regulatory or governmental body specified by the Secretary, but only if there is no statement of the taxpayer described in subparagraph (A) or (B).
(4) Allocation of transaction price
For purposes of this subsection, in the case of a contract which contains multiple performance obligations, the allocation of the transaction price to each performance obligation shall be equal to the amount allocated to each performance obligation for purposes of including such item in revenue in the applicable financial statement of the taxpayer.
(5) Group of entities
For purposes of paragraph (1), if the financial results of a taxpayer are reported on the applicable financial statement (as defined in paragraph (3)) for a group of entities, such statement shall be treated as the applicable financial statement of the taxpayer.
(c) Treatment of advance payments
(1) In general
A taxpayer which computes taxable income under the accrual method of accounting, and receives any advance payment during the taxable year, shall—
(A) except as provided in subparagraph (B), include such advance payment in gross income for such taxable year, or
(B) if the taxpayer elects the application of this subparagraph with respect to the category of advance payments to which such advance payment belongs, the taxpayer shall—
(i) to the extent that any portion of such advance payment is required under subsection (b) to be included in gross income in the taxable year in which such payment is received, so include such portion, and
(ii) include the remaining portion of such advance payment in gross income in the taxable year following the taxable year in which such payment is received.
(2) Election
(A) In general
Except as otherwise provided in this paragraph, the election under paragraph (1)(B) shall be made at such time, in such form and manner, and with respect to such categories of advance payments, as the Secretary may provide.
(B) Period to which election applies
An election under paragraph (1)(B) shall be effective for the taxable year with respect to which it is first made and for all subsequent taxable years, unless the taxpayer secures the consent of the Secretary to revoke such election. For purposes of this title, the computation of taxable income under an election made under paragraph (1)(B) shall be treated as a method of accounting.
(3) Taxpayers ceasing to exist
Except as otherwise provided by the Secretary, the election under paragraph (1)(B) shall not apply with respect to advance payments received by the taxpayer during a taxable year if such taxpayer ceases to exist during (or with the close of) such taxable year.
(4) Advance payment
For purposes of this subsection—
(A) In general
The term "advance payment" means any payment—
(i) the full inclusion of which in the gross income of the taxpayer for the taxable year of receipt is a permissible method of accounting under this section (determined without regard to this subsection),
(ii) any portion of which is included in revenue by the taxpayer in a financial statement described in clause (i) or (ii) of subsection (b)(1)(A) for a subsequent taxable year, and
(iii) which is for goods, services, or such other items as may be identified by the Secretary for purposes of this clause.
(B) Exclusions
Except as otherwise provided by the Secretary, such term shall not include—
(i) rent,
(ii) insurance premiums governed by subchapter L,
(iii) payments with respect to financial instruments,
(iv) payments with respect to warranty or guarantee contracts under which a third party is the primary obligor,
(v) payments subject to section 871(a), 881, 1441, or 1442,
(vi) payments in property to which section 83 applies, and
(vii) any other payment identified by the Secretary for purposes of this subparagraph.
(C) Receipt
For purposes of this subsection, an item of gross income is received by the taxpayer if it is actually or constructively received, or if it is due and payable to the taxpayer.
(D) Allocation of transaction price
For purposes of this subsection, rules similar to subsection (b)(4) shall apply.
(d) Special rule in case of death
In the case of the death of a taxpayer whose taxable income is computed under an accrual method of accounting, any amount accrued only by reason of the death of the taxpayer shall not be included in computing taxable income for the period in which falls the date of the taxpayer's death.
(e) Special rule for employee tips
For purposes of subsection (a), tips included in a written statement furnished an employer by an employee pursuant to section 6053(a) shall be deemed to be received at the time the written statement including such tips is furnished to the employer.
(f) Special rule for crop insurance proceeds or disaster payments
In the case of insurance proceeds received as a result of destruction or damage to crops, a taxpayer reporting on the cash receipts and disbursements method of accounting may elect to include such proceeds in income for the taxable year following the taxable year of destruction or damage, if he establishes that, under his practice, income from such crops would have been reported in a following taxable year. For purposes of the preceding sentence, payments received under the Agricultural Act of 1949, as amended, or title II of the Disaster Assistance Act of 1988, as a result of (1) destruction or damage to crops caused by drought, flood, or any other natural disaster, or (2) the inability to plant crops because of such a natural disaster shall be treated as insurance proceeds received as a result of destruction or damage to crops. An election under this subsection for any taxable year shall be made at such time and in such manner as the Secretary prescribes.
(g) Special rule for proceeds from livestock sold on account of drought, flood, or other weather-related conditions
(1) In general
In the case of income derived from the sale or exchange of livestock in excess of the number the taxpayer would sell if he followed his usual business practices, a taxpayer reporting on the cash receipts and disbursements method of accounting may elect to include such income for the taxable year following the taxable year in which such sale or exchange occurs if he establishes that, under his usual business practices, the sale or exchange would not have occurred in the taxable year in which it occurred if it were not for drought, flood, or other weather-related conditions, and that such conditions had resulted in the area being designated as eligible for assistance by the Federal Government.
(2) Limitation
Paragraph (1) shall apply only to a taxpayer whose principal trade or business is farming (within the meaning of section 6420(c)(3)).
(3) Special election rules
If section 1033(e)(2) applies to a sale or exchange of livestock described in paragraph (1), the election under paragraph (1) shall be deemed valid if made during the replacement period described in such section.
(h) Special rule for utility services
(1) In general
In the case of a taxpayer the taxable income of which is computed under an accrual method of accounting, any income attributable to the sale or furnishing of utility services to customers shall be included in gross income not later than the taxable year in which such services are provided to such customers.
(2) Definition and special rule
For purposes of this subsection—
(A) Utility services
The term "utility services" includes—
(i) the providing of electrical energy, water, or sewage disposal,
(ii) the furnishing of gas or steam through a local distribution system,
(iii) telephone or other communication services, and
(iv) the transporting of gas or steam by pipeline.
(B) Year in which services provided
The taxable year in which services are treated as provided to customers shall not, in any manner, be determined by reference to—
(i) the period in which the customers' meters are read, or
(ii) the period in which the taxpayer bills (or may bill) the customers for such service.
(i) Treatment of interest on frozen deposits in certain financial institutions
(1) In general
In the case of interest credited during any calendar year on a frozen deposit in a qualified financial institution, the amount of such interest includible in the gross income of a qualified individual shall not exceed the sum of—
(A) the net amount withdrawn by such individual from such deposit during such calendar year, and
(B) the amount of such deposit which is withdrawable as of the close of the taxable year (determined without regard to any penalty for premature withdrawals of a time deposit).
(2) Interest tested each year
Any interest not included in gross income by reason of paragraph (1) shall be treated as credited in the next calendar year.
(3) Deferral of interest deduction
No deduction shall be allowed to any qualified financial institution for interest not includible in gross income under paragraph (1) until such interest is includible in gross income.
(4) Frozen deposit
For purposes of this subsection, the term "frozen deposit" means any deposit if, as of the close of the calendar year, any portion of such deposit may not be withdrawn because of—
(A) the bankruptcy or insolvency of the qualified financial institution (or threat thereof), or
(B) any requirement imposed by the State in which such institution is located by reason of the bankruptcy or insolvency (or threat thereof) of 1 or more financial institutions in the State.
(5) Other definitions
For purposes of this subsection, the terms "qualified individual", "qualified financial institution", and "deposit" have the same respective meanings as when used in section 165(l).
(j) Special rule for cash options for receipt of qualified prizes
(1) In general
For purposes of this title, in the case of an individual on the cash receipts and disbursements method of accounting, a qualified prize option shall be disregarded in determining the taxable year for which any portion of the qualified prize is properly includible in gross income of the taxpayer.
(2) Qualified prize option; qualified prize
For purposes of this subsection—
(A) In general
The term "qualified prize option" means an option which—
(i) entitles an individual to receive a single cash payment in lieu of receiving a qualified prize (or remaining portion thereof), and
(ii) is exercisable not later than 60 days after such individual becomes entitled to the qualified prize.
(B) Qualified prize
The term "qualified prize" means any prize or award which—
(i) is awarded as a part of a contest, lottery, jackpot, game, or other similar arrangement,
(ii) does not relate to any past services performed by the recipient and does not require the recipient to perform any substantial future service, and
(iii) is payable over a period of at least 10 years.
(3) Partnership, etc.
The Secretary shall provide for the application of this subsection in the case of a partnership or other pass-through entity consisting entirely of individuals described in paragraph (1).
(k) Special rule for sales or dispositions to implement Federal Energy Regulatory Commission or State electric restructuring policy
(1) In general
In the case of any qualifying electric transmission transaction for which the taxpayer elects the application of this section, qualified gain from such transaction shall be recognized—
(A) in the taxable year which includes the date of such transaction to the extent the amount realized from such transaction exceeds—
(i) the cost of exempt utility property which is purchased by the taxpayer during the 4-year period beginning on such date, reduced (but not below zero) by
(ii) any portion of such cost previously taken into account under this subsection, and
(B) ratably over the 8-taxable year period beginning with the taxable year which includes the date of such transaction, in the case of any such gain not recognized under subparagraph (A).
(2) Qualified gain
For purposes of this subsection, the term "qualified gain" means, with respect to any qualifying electric transmission transaction in any taxable year—
(A) any ordinary income derived from such transaction which would be required to be recognized under section 1245 or 1250 for such taxable year (determined without regard to this subsection), and
(B) any income derived from such transaction in excess of the amount described in subparagraph (A) which is required to be included in gross income for such taxable year (determined without regard to this subsection).
(3) Qualifying electric transmission transaction
For purposes of this subsection, the term "qualifying electric transmission transaction" means any sale or other disposition before January 1, 2008 (before January 1, 2021, in the case of a qualified electric utility), of—
(A) property used in the trade or business of providing electric transmission services, or
(B) any stock or partnership interest in a corporation or partnership, as the case may be, whose principal trade or business consists of providing electric transmission services,
but only if such sale or disposition is to an independent transmission company.
(4) Independent transmission company
For purposes of this subsection, the term "independent transmission company" means—
(A) an independent transmission provider approved by the Federal Energy Regulatory Commission,
(B) a person—
(i) who the Federal Energy Regulatory Commission determines in its authorization of the transaction under section 203 of the Federal Power Act (
(ii) whose transmission facilities to which the election under this subsection applies are under the operational control of a Federal Energy Regulatory Commission-approved independent transmission provider before the close of the period specified in such authorization, but not later than the date which is 4 years after the close of the taxable year in which the transaction occurs, or
(C) in the case of facilities subject to the jurisdiction of the Public Utility Commission of Texas—
(i) a person which is approved by that Commission as consistent with Texas State law regarding an independent transmission provider, or
(ii) a political subdivision or affiliate thereof whose transmission facilities are under the operational control of a person described in clause (i).
(5) Exempt utility property
For purposes of this subsection:
(A) In general
The term "exempt utility property" means property used in the trade or business of—
(i) generating, transmitting, distributing, or selling electricity, or
(ii) producing, transmitting, distributing, or selling natural gas.
(B) Nonrecognition of gain by reason of acquisition of stock
Acquisition of control of a corporation shall be taken into account under this subsection with respect to a qualifying electric transmission transaction only if the principal trade or business of such corporation is a trade or business referred to in subparagraph (A).
(C) Exception for property located outside the United States
The term "exempt utility property" shall not include any property which is located outside the United States.
(6) Qualified electric utility
For purposes of this subsection, the term "qualified electric utility" means a person that, as of the date of the qualifying electric transmission transaction, is vertically integrated, in that it is both—
(A) a transmitting utility (as defined in section 3(23) of the Federal Power Act (
(B) an electric utility (as defined in section 3(22) of the Federal Power Act (
(7) Special rule for consolidated groups
In the case of a corporation which is a member of an affiliated group filing a consolidated return, any exempt utility property purchased by another member of such group shall be treated as purchased by such corporation for purposes of applying paragraph (1)(A).
(8) Time for assessment of deficiencies
If the taxpayer has made the election under paragraph (1) and any gain is recognized by such taxpayer as provided in paragraph (1)(B), then—
(A) the statutory period for the assessment of any deficiency, for any taxable year in which any part of the gain on the transaction is realized, attributable to such gain shall not expire prior to the expiration of 3 years from the date the Secretary is notified by the taxpayer (in such manner as the Secretary may by regulations prescribe) of the purchase of exempt utility property or of an intention not to purchase such property, and
(B) such deficiency may be assessed before the expiration of such 3-year period notwithstanding any law or rule of law which would otherwise prevent such assessment.
(9) Purchase
For purposes of this subsection, the taxpayer shall be considered to have purchased any property if the unadjusted basis of such property is its cost within the meaning of section 1012.
(10) Election
An election under paragraph (1) shall be made at such time and in such manner as the Secretary may require and, once made, shall be irrevocable.
(11) Nonapplication of installment sales treatment
Section 453 shall not apply to any qualifying electric transmission transaction with respect to which an election to apply this subsection is made.
(Aug. 16, 1954, ch. 736,
Editorial Notes
References in Text
The Agricultural Act of 1949, as amended, referred to in subsec. (f), is act Oct. 31, 1949, ch. 792,
The Disaster Assistance Act of 1988, referred to in subsec. (f), is
Amendments
2019—Subsec. (k)(3).
2018—Subsec. (k)(3).
2017—Subsecs. (b) to (k).
2015—Subsec. (i)(3).
2014—Subsec. (i)(3).
2013—Subsec. (i)(3).
2010—Subsec. (i)(3).
2008—Subsec. (i)(3).
Subsec. (i)(4)(B)(ii).
Subsec. (i)(5)(C).
Subsec. (i)(6) to (11).
2005—Subsec. (i)(3).
Subsec. (i)(4)(B)(ii).
2004—Subsec. (e)(3).
Subsec. (i).
1998—Subsec. (h).
1997—Subsec. (e).
1988—Subsec. (d).
Subsec. (e)(1).
Subsecs. (f), (g).
1986—Subsec. (f).
1976—Subsec. (d).
Subsec. (e).
1969—Subsec. (d).
1965—Subsec. (c).
Statutory Notes and Related Subsidiaries
Effective Date of 2019 Amendment
Effective Date of 2018 Amendment
Effective Date of 2017 Amendment
"(c)
"(d)
"(1)
"(A) such change shall be treated as initiated by the taxpayer, and
"(B) such change shall be treated as made with the consent of the Secretary of the Treasury.
"(2)
"(A) is required by the amendments made by this section, or
"(B) was prohibited under the Internal Revenue Code of 1986 prior to such amendments and is permitted under such Code after such amendments.
"(e)
"(1) the amendments made by this section shall apply to taxable years beginning after December 31, 2018, and
"(2) the period for taking into account any adjustments under section 481 by reason of a qualified change in method of accounting (as defined in subsection (d)) shall be 6 years."
Effective Date of 2015 Amendment
Effective Date of 2014 Amendment
Effective Date of 2013 Amendment
Effective Date of 2005 Amendment
"(1)
"(2)
Effective Date of 2010 Amendment
Effective Date of 2008 Amendment
"(1)
"(2)
"(3)
Effective Date of 2004 Amendment
Effective Date of 1998 Amendment
"(1)
"(2)
"(A) clause (ii) of such section 451(h)(2)(A) [now 451(j)(2)(A)] shall not apply, and
"(B) such option shall be treated as a qualified prize option if it is exercisable only during all or part of the 18-month period beginning on July 1, 1999."
Effective Date of 1997 Amendment
Effective Date of 1988 Amendment
Amendment by section 1009(d)(3) of
Effective Date of 1986 Amendment
"(1)
"(2)
"(A) such change shall be treated as initiated by the taxpayer,
"(B) such change shall be treated as having been made with the consent of the Secretary, and
"(C) the adjustments under section 481 of the Internal Revenue Code of 1954 [now 1986] by reason of such change shall be taken into account ratably over a period no longer than the first 4 taxable years beginning after December 31, 1986.
"(3)
"(1)
"(2)
"(A) The amendment made by subsection (b) [amending this section] shall apply to taxable years beginning after December 31, 1982, and before January 1, 1987, only if the qualified individual elects to have such amendment apply for all such taxable years.
"(B) In the case of interest attributable to the period beginning January 1, 1983, and ending December 31, 1987, the interest deduction of financial institutions shall be determined without regard to paragraph (3) of section 451(f) [now 451(h)] of the Internal Revenue Code of 1986 (as added by subsection (b))."
Effective Date of 1976 Amendment
Effective Date of 1969 Amendment
Effective Date of 1965 Amendment
Amendment by
Tax Treatment of Incentive Payment
Voluntary separation incentives paid to members of Armed Forces under
Overpayments or Underpayments of Tax Attributable to Certain Amendments by Pub. L. 99–514 or Pub. L. 100–647
For provisions relating to credit or refund of overpayments of tax, and assessment of underpayments of tax, due to amendments by section 905 of
Modification of Regulations on the Completed Contract Method of Accounting
"(a)
"(1) clarify the time at which a contract is to be considered completed,
"(2) clarify when—
"(A) one agreement will be treated as more than one contract, and
"(B) two or more agreements will be treated as one contract, and
"(3) properly allocate all costs which directly benefit, or are incurred by reason of, the extended period long-term contract activities of the taxpayer.
"(b)
"(1)
"(2)
"(A)
"(i) who estimates (at the time such contract is entered into) that such contract will be completed within the 3-year period beginning on the contract commencement date of such contract, or
"(ii) whose average annual gross receipts over the 3 taxable years preceding the taxable year in which such contract is entered into do not exceed $25,000,000.
"(B)
"(i) all trades or businesses (whether or not incorporated) which are under common control with the taxpayer (within the meaning of section 52(b)), and
"(ii) all members of any controlled group of corporations of which the taxpayer is a member,
for the 3 taxable years of such persons preceding the taxable year in which the contract described in subparagraph (A) is entered into shall be included in the gross receipts of the taxpayer for the period described in subparagraph (A). The Secretary shall prescribe regulations which provide attribution rules that take into account, in addition to the persons and entities described in the preceding sentence, taxpayers who engage in construction contracts through partnerships, joint ventures, and corporations.
"(C)
"(i) 'more than 50 percent' shall be substituted for 'at least 80 percent' each place it appears in section 1563(a)(1), and
"(ii) the determination shall be made without regard to subsections (a)(4) and (e)(3)(C) of section 1563.
"(3)
"(4)
"(c)
"(1)
"(2)
"(A)
"(B)
| "If the taxable year begins in calendar year: | The applicable percentage is: |
|---|---|
| 1983 | 331/3 |
| 1984 | 662/3 |
| 1985 or thereafter | 100. |
"(3)
"(A)
"(B)
"(i) solely by reason of any modification to regulations made under subsection (a)(2), or
"(ii) solely by reason of any modifications to regulations made under both paragraphs (1) and (2) of subsection (a),
shall be treated as having been completed on the first day after December 31, 1982, on which any contract which was severed from such contract (by reason of the modifications made by subsection (a)(2)) is completed (determined after the application of any modifications to regulations made under subsection (a)(1)).
"(4)
Private Deferred Compensation Plans; Taxable Years Ending on or after February 1, 1978
"(a)
"(b)
"(1)
"(A) where the person for whom the service is performed is not a State (within the meaning of paragraph (1) of section 457(d) of the Internal Revenue Code of 1986 [formerly I.R.C. 1954]) and not an organization which is exempt from tax under section 501 of such Code, and
"(B) under which the payment or otherwise making available of compensation is deferred.
"(2)
"(A) a plan described in section 401(a) of the Internal Revenue Code of 1986 which includes a trust, exempt from tax under section 501(a) of such Code,
"(B) an annuity plan or contract described in section 403 of such Code,
"(C) a qualified bond purchase plan described in section 405(a) of such Code,
"(D) that portion of any plan which consists of a transfer of property described in section 83 (determined without regard to subsection (e) thereof of such Code, and
"(E) that portion of any plan which consists of a trust to which section 402(b) of such Code applies.
"(c)
Year of Inclusion for Disaster or Deficiency Payments Received in 1978; Election
"(a)
"(1)(A) the taxpayer receives in his first taxable year beginning in 1978 payments under the Agricultural Act of 1949, as amended, [see Short Title note set out under
"(i) the destruction or damage to crops caused by drought, flood, or any other natural disaster, or
"(ii) the inability to plant crops because of such a natural disaster, and
"(B) the taxpayer establishes that, under his practice, income from such crops could have been reported for his last taxable year beginning in 1977, or
"(2)(A) the taxpayer receives in his first taxable year beginning in 1978 deficiency (or 'target price') payments under the Agricultural Act of 1949, as amended, for any 1977 crop, and
"(B) the fifth month of such crop's marketing year ends before December 1, 1977,
then the taxpayer may elect to include such proceeds in income for his last taxable year beginning in 1977.
"(b)
[§452. Repealed. June 15, 1955, ch. 143, §1(a), 69 Stat. 134 ]
Section, act Aug. 16, 1954, ch. 736,
Statutory Notes and Related Subsidiaries
Effective Date of Repeal
Repeal effective with respect to taxable years beginning after Dec. 31, 1953, and ending after Aug. 16, 1954, see section 3 of act June 15, 1955, set out as an Effective Date of 1955 Amendment note under
Savings Provision
For provisions concerning increase in tax in any taxable year ending on or before June 15, 1955 by reason of enactment of act June 15, 1955, see section 4 of act June 15, 1955, set out as a note under
§453. Installment method
(a) General rule
Except as otherwise provided in this section, income from an installment sale shall be taken into account for purposes of this title under the installment method.
(b) Installment sale defined
For purposes of this section—
(1) In general
The term "installment sale" means a disposition of property where at least 1 payment is to be received after the close of the taxable year in which the disposition occurs.
(2) Exceptions
The term "installment sale" does not include—
(A) Dealer dispositions
Any dealer disposition (as defined in subsection (l)).
(B) Inventories of personal property
A disposition of personal property of a kind which is required to be included in the inventory of the taxpayer if on hand at the close of the taxable year.
(c) Installment method defined
For purposes of this section, the term "installment method" means a method under which the income recognized for any taxable year from a disposition is that proportion of the payments received in that year which the gross profit (realized or to be realized when payment is completed) bears to the total contract price.
(d) Election out
(1) In general
Subsection (a) shall not apply to any disposition if the taxpayer elects to have subsection (a) not apply to such disposition.
(2) Time and manner for making election
Except as otherwise provided by regulations, an election under paragraph (1) with respect to a disposition may be made only on or before the due date prescribed by law (including extensions) for filing the taxpayer's return of the tax imposed by this chapter for the taxable year in which the disposition occurs. Such an election shall be made in the manner prescribed by regulations.
(3) Election revocable only with consent
An election under paragraph (1) with respect to any disposition may be revoked only with the consent of the Secretary.
(e) Second dispositions by related persons
(1) In general
If—
(A) any person disposes of property to a related person (hereinafter in this subsection referred to as the "first disposition"), and
(B) before the person making the first disposition receives all payments with respect to such disposition, the related person disposes of the property (hereinafter in this subsection referred to as the "second disposition"),
then, for purposes of this section, the amount realized with respect to such second disposition shall be treated as received at the time of the second disposition by the person making the first disposition.
(2) 2-year cutoff for property other than marketable securities
(A) In general
Except in the case of marketable securities, paragraph (1) shall apply only if the date of the second disposition is not more than 2 years after the date of the first disposition.
(B) Substantial diminishing of risk of ownership
The running of the 2-year period set forth in subparagraph (A) shall be suspended with respect to any property for any period during which the related person's risk of loss with respect to the property is substantially diminished by—
(i) the holding of a put with respect to such property (or similar property),
(ii) the holding by another person of a right to acquire the property, or
(iii) a short sale or any other transaction.
(3) Limitation on amount treated as received
The amount treated for any taxable year as received by the person making the first disposition by reason of paragraph (1) shall not exceed the excess of—
(A) the lesser of—
(i) the total amount realized with respect to any second disposition of the property occurring before the close of the taxable year, or
(ii) the total contract price for the first disposition, over
(B) the sum of—
(i) the aggregate amount of payments received with respect to the first disposition before the close of such year, plus
(ii) the aggregate amount treated as received with respect to the first disposition for prior taxable years by reason of this subsection.
(4) Fair market value where disposition is not sale or exchange
For purposes of this subsection, if the second disposition is not a sale or exchange, an amount equal to the fair market value of the property disposed of shall be substituted for the amount realized.
(5) Later payments treated as receipt of tax paid amounts
If paragraph (1) applies for any taxable year, payments received in subsequent taxable years by the person making the first disposition shall not be treated as the receipt of payments with respect to the first disposition to the extent that the aggregate of such payments does not exceed the amount treated as received by reason of paragraph (1).
(6) Exception for certain dispositions
For purposes of this subsection—
(A) Reacquisitions of stock by issuing corporation not treated as first dispositions
Any sale or exchange of stock to the issuing corporation shall not be treated as a first disposition.
(B) Involuntary conversions not treated as second dispositions
A compulsory or involuntary conversion (within the meaning of section 1033) and any transfer thereafter shall not be treated as a second disposition if the first disposition occurred before the threat or imminence of the conversion.
(C) Dispositions after death
Any transfer after the earlier of—
(i) the death of the person making the first disposition, or
(ii) the death of the person acquiring the property in the first disposition,
and any transfer thereafter shall not be treated as a second disposition.
(7) Exception where tax avoidance not a principal purpose
This subsection shall not apply to a second disposition (and any transfer thereafter) if it is established to the satisfaction of the Secretary that neither the first disposition nor the second disposition had as one of its principal purposes the avoidance of Federal income tax.
(8) Extension of statute of limitations
The period for assessing a deficiency with respect to a first disposition (to the extent such deficiency is attributable to the application of this subsection) shall not expire before the day which is 2 years after the date on which the person making the first disposition furnishes (in such manner as the Secretary may by regulations prescribe) a notice that there was a second disposition of the property to which this subsection may have applied. Such deficiency may be assessed notwithstanding the provisions of any law or rule of law which would otherwise prevent such assessment.
(f) Definitions and special rules
For purposes of this section—
(1) Related person
Except for purposes of subsections (g) and (h), the term "related person" means—
(A) a person whose stock would be attributed under section 318(a) (other than paragraph (4) thereof) to the person first disposing of the property, or
(B) a person who bears a relationship described in section 267(b) to the person first disposing of the property.
(2) Marketable securities
The term "marketable securities" means any security for which, as of the date of the disposition, there was a market on an established securities market or otherwise.
(3) Payment
Except as provided in paragraph (4), the term "payment" does not include the receipt of evidences of indebtedness of the person acquiring the property (whether or not payment of such indebtedness is guaranteed by another person).
(4) Purchaser evidences of indebtedness payable on demand or readily tradable
Receipt of a bond or other evidence of indebtedness which—
(A) is payable on demand, or
(B) is readily tradable,
shall be treated as receipt of payment.
(5) Readily tradable defined
For purposes of paragraph (4), the term "readily tradable" means a bond or other evidence of indebtedness which is issued—
(A) with interest coupons attached or in registered form (other than one in registered form which the taxpayer establishes will not be readily tradable in an established securities market), or
(B) in any other form designed to render such bond or other evidence of indebtedness readily tradable in an established securities market.
(6) Like-kind exchanges
In the case of any exchange described in section 1031(b)—
(A) the total contract price shall be reduced to take into account the amount of any property permitted to be received in such exchange without recognition of gain,
(B) the gross profit from such exchange shall be reduced to take into account any amount not recognized by reason of section 1031(b), and
(C) the term "payment", when used in any provision of this section other than subsection (b)(1), shall not include any property permitted to be received in such exchange without recognition of gain.
Similar rules shall apply in the case of an exchange which is described in section 356(a) and is not treated as a dividend.
(7) Depreciable property
The term "depreciable property" means property of a character which (in the hands of the transferee) is subject to the allowance for depreciation provided in section 167.
(8) Payments to be received defined
The term "payments to be received" includes—
(A) the aggregate amount of all payments which are not contingent as to amount, and
(B) the fair market value of any payments which are contingent as to amount.
(g) Sale of depreciable property to controlled entity
(1) In general
In the case of an installment sale of depreciable property between related persons—
(A) subsection (a) shall not apply,
(B) for purposes of this title—
(i) except as provided in clause (ii), all payments to be received shall be treated as received in the year of the disposition, and
(ii) in the case of any payments which are contingent as to the amount but with respect to which the fair market value may not be reasonably ascertained, the basis shall be recovered ratably, and
(C) the purchaser may not increase the basis of any property acquired in such sale by any amount before the time such amount is includible in the gross income of the seller.
(2) Exception where tax avoidance not a principal purpose
Paragraph (1) shall not apply if it is established to the satisfaction of the Secretary that the disposition did not have as one of its principal purposes the avoidance of Federal income tax.
(3) Related persons
For purposes of this subsection, the term "related persons" has the meaning given to such term by section 1239(b), except that such term shall include 2 or more partnerships having a relationship to each other described in section 707(b)(1)(B).
(h) Use of installment method by shareholders in certain liquidations
(1) Receipt of obligations not treated as receipt of payment
(A) In general
If, in a liquidation to which section 331 applies, the shareholder receives (in exchange for the shareholder's stock) an installment obligation acquired in respect of a sale or exchange by the corporation during the 12-month period beginning on the date a plan of complete liquidation is adopted and the liquidation is completed during such 12-month period, then, for purposes of this section, the receipt of payments under such obligation (but not the receipt of such obligation) by the shareholder shall be treated as the receipt of payment for the stock.
(B) Obligations attributable to sale of inventory must result from bulk sale
Subparagraph (A) shall not apply to an installment obligation acquired in respect of a sale or exchange of—
(i) stock in trade of the corporation,
(ii) other property of a kind which would properly be included in the inventory of the corporation if on hand at the close of the taxable year, and
(iii) property held by the corporation primarily for sale to customers in the ordinary course of its trade or business,
unless such sale or exchange is to 1 person in 1 transaction and involves substantially all of such property attributable to a trade or business of the corporation.
(C) Special rule where obligor and shareholder are related persons
If the obligor of any installment obligation and the shareholder are married to each other or are related persons (within the meaning of section 1239(b)), to the extent such installment obligation is attributable to the disposition by the corporation of depreciable property—
(i) subparagraph (A) shall not apply to such obligation, and
(ii) for purposes of this title, all payments to be received by the shareholder shall be deemed received in the year the shareholder receives the obligation.
(D) Coordination with subsection (e)(1)(A)
For purposes of subsection (e)(1)(A), disposition of property by the corporation shall be treated also as disposition of such property by the shareholder.
(E) Sales by liquidating subsidiaries
For purposes of subparagraph (A), in the case of a controlling corporate shareholder (within the meaning of section 368(c)) of a selling corporation, an obligation acquired in respect of a sale or exchange by the selling corporation shall be treated as so acquired by such controlling corporate shareholder. The preceding sentence shall be applied successively to each controlling corporate shareholder above such controlling corporate shareholder.
(2) Distributions received in more than 1 taxable year of shareholder
If—
(A) paragraph (1) applies with respect to any installment obligation received by a shareholder from a corporation, and
(B) by reason of the liquidation such shareholder receives property in more than 1 taxable year,
then, on completion of the liquidation, basis previously allocated to property so received shall be reallocated for all such taxable years so that the shareholder's basis in the stock of the corporation is properly allocated among all property received by such shareholder in such liquidation.
(i) Recognition of recapture income in year of disposition
(1) In general
In the case of any installment sale of property to which subsection (a) applies—
(A) notwithstanding subsection (a), any recapture income shall be recognized in the year of the disposition, and
(B) any gain in excess of the recapture income shall be taken into account under the installment method.
(2) Recapture income
For purposes of paragraph (1), the term "recapture income" means, with respect to any installment sale, the aggregate amount which would be treated as ordinary income under section 1245 or 1250 (or so much of section 751 as relates to section 1245 or 1250) for the taxable year of the disposition if all payments to be received were received in the taxable year of disposition.
(j) Regulations
(1) In general
The Secretary shall prescribe such regulations as may be necessary or appropriate to carry out the provisions of this section.
(2) Selling price not readily ascertainable
The regulations prescribed under paragraph (1) shall include regulations providing for ratable basis recovery in transactions where the gross profit or the total contract price (or both) cannot be readily ascertained.
(k) Current inclusion in case of revolving credit plans, etc.
In the case of—
(1) any disposition of personal property under a revolving credit plan, or
(2) any installment obligation arising out of a sale of—
(A) stock or securities which are traded on an established securities market, or
(B) to the extent provided in regulations, property (other than stock or securities) of a kind regularly traded on an established market,
subsection (a) shall not apply, and, for purposes of this title, all payments to be received shall be treated as received in the year of disposition. The Secretary may provide for the application of this subsection in whole or in part for transactions in which the rules of this subsection otherwise would be avoided through the use of related parties, pass-thru entities, or intermediaries.
(l) Dealer dispositions
For purposes of subsection (b)(2)(A)—
(1) In general
The term "dealer disposition" means any of the following dispositions:
(A) Personal property
Any disposition of personal property by a person who regularly sells or otherwise disposes of personal property of the same type on the installment plan.
(B) Real property
Any disposition of real property which is held by the taxpayer for sale to customers in the ordinary course of the taxpayer's trade or business.
(2) Exceptions
The term "dealer disposition" does not include—
(A) Farm property
The disposition on the installment plan of any property used or produced in the trade or business of farming (within the meaning of section 2032A(e)(4) or (5)).
(B) Timeshares and residential lots
(i) In general
Any dispositions described in clause (ii) on the installment plan if the taxpayer elects to have paragraph (3) apply to any installment obligations which arise from such dispositions. An election under this paragraph shall not apply with respect to an installment obligation which is guaranteed by any person other than an individual.
(ii) Dispositions to which subparagraph applies
A disposition is described in this clause if it is a disposition in the ordinary course of the taxpayer's trade or business to an individual of—
(I) a timeshare right to use or a timeshare ownership interest in residential real property for not more than 6 weeks per year, or a right to use specified campgrounds for recreational purposes, or
(II) any residential lot, but only if the taxpayer (or any related person) is not to make any improvements with respect to such lot.
For purposes of subclause (I), a timeshare right to use (or timeshare ownership interest in) property held by the spouse, children, grandchildren, or parents of an individual shall be treated as held by such individual.
(C) Carrying charges or interest
Any carrying charges or interest with respect to a disposition described in subparagraph (A) or (B) which are added on the books of account of the seller to the established cash selling price of the property shall be included in the total contract price of the property and, if such charges or interest are not so included, any payments received shall be treated as applying first against such carrying charges or interest.
(3) Payment of interest on timeshares and residential lots
(A) In general
In the case of any installment obligation to which paragraph (2)(B) applies, the tax imposed by this chapter for any taxable year for which payment is received on such obligation shall be increased by the amount of interest determined in the manner provided under subparagraph (B).
(B) Computation of interest
(i) In general
The amount of interest referred to in subparagraph (A) for any taxable year shall be determined—
(I) on the amount of the tax for such taxable year which is attributable to the payments received during such taxable year on installment obligations to which this subsection applies,
(II) for the period beginning on the date of sale, and ending on the date such payment is received, and
(III) by using the applicable Federal rate under section 1274 (without regard to subsection (d)(2) thereof) in effect at the time of the sale compounded semiannually.
(ii) Interest not taken into account
For purposes of clause (i), the portion of any tax attributable to the receipt of any payment shall be determined without regard to any interest imposed under subparagraph (A).
(iii) Taxable year of sale
No interest shall be determined for any payment received in the taxable year of the disposition from which the installment obligation arises.
(C) Treatment as interest
Any amount payable under this paragraph shall be taken into account in computing the amount of any deduction allowable to the taxpayer for interest paid or accrued during such taxable year.
(Added
Editorial Notes
Prior Provisions
A prior section 453, acts Aug. 16, 1954, ch. 736,
Amendments
2004—Subsec. (f)(4)(B).
2000—Subsecs. (a), (d)(1), (i)(1), (k).
1999—Subsec. (a).
Subsecs. (d)(1), (i)(1), (k).
1988—Subsec. (f)(1).
Subsec. (f)(8).
Subsec. (g)(1).
"(A) subsection (a) shall not apply, and
"(B) for purposes of this title—
"(i) except as provided in clause (ii), all payments to be received shall be treated as received in the year of the disposition, and
"(ii) in the case of any payments which are contingent as to amount but with respect to which the fair market value may not be reasonably ascertained—
"(I) the basis shall be recovered ratably, and
"(II) the purchaser may not increase the basis of any property acquired in such sale by any amount before such time as the seller includes such amount in income."
Subsec. (g)(3).
Subsec. (h)(1)(B).
Subsec. (h)(1)(E).
Subsec. (j).
Subsec. (k).
Subsec. (l)(1)(A).
1987—Subsec. (b)(2)(A).
Subsec. (l).
1986—Subsec. (f)(1).
Subsec. (f)(8).
Subsec. (g).
Subsec. (g)(1).
Subsec. (h).
Subsec. (h)(1)(A).
Subsec. (h)(1)(B).
Subsec. (h)(1)(E).
Subsec. (i)(2).
Subsec. (j).
1984—Subsec. (g).
Subsec. (h)(1)(C).
Subsec. (i).
1983—Subsec. (f)(6)(C).
1981—Subsecs. (i), (j).
Statutory Notes and Related Subsidiaries
Effective Date of 2004 Amendment
Effective Date and Construction of 2000 Amendment
"(a)
"(b)
Effective Date of 1999 Amendment
Effective Date of 1988 Amendment
Amendment by sections 1006(e)(7), (i)(1), (2), 1008(g)(1), and 1018(u)(25), (26) of
Amendment by section 2004(d)(1), (5) of
Effective Date of 1987 Amendment
"(1)
"(2)
"(A)
"(B)
"(i)
"(ii)
"(I) such change shall be treated as initiated by the taxpayer,
"(II) such change shall be treated as made with the consent of the Secretary of the Treasury or his delegate, and
"(III) the net amount of adjustments required by section 481 of the Internal Revenue Code of 1986 shall be taken into account over a period not longer than 4 taxable years.
"(C)
"(3)
"(A)
"(B)
"(i)
"(ii)
"(C)
"(i) dispositions after August 16, 1986, and before the 1st day of such taxable year shall be treated as made on such 1st day, and
"(ii) subsections (b)(2)(B) and (c)(4) of section 453A of such Code shall be applied separately with respect to such dispositions by substituting for '$5,000,000' the amount which bears the same ratio to $5,000,000 as the number of days after August 16, 1986, and before such 1st day bears to 365.
"(4)
"(5)
Effective Date of 1986 Amendment
Amendment by section 631(e)(8) of
Amendment by section 642(a)(1)(D), (3), (b) of
"(1)
"(2)
"(3)
"(A) such change shall be treated as initiated by the taxpayer,
"(B) such change shall be treated as having been made with the consent of the Secretary,
"(C) the period for taking into account adjustments under section 481 of such Code by reason of such change shall be equal to 4 years, and
"(D) except as provided in paragraph (4), the amount taken into account in each of such 4 years shall be the applicable percentage (determined in accordance with the following table) of the net adjustment:
| "In the case of the: | The applicable percentage is: |
|---|---|
| 1st taxable year | 15 |
| 2nd taxable year | 25 |
| 3rd taxable year | 30 |
| 4th taxable year | 30. |
If the taxpayer's last taxable year beginning before January 1, 1987, was the taxpayer's 1st taxable year in which sales were made under a revolving credit plan, all adjustments under section 481 of such Code shall be taken into account in the taxpayer's 1st taxable year beginning after December 31, 1986.
"(4)
"(A)
"(i) the percentage determined under subparagraph (B) shall be substituted for the applicable percentage which would otherwise apply under paragraph (3)(D), and
"(ii) any increase in the applicable percentage by reason of clause (i) shall be applied to reduce the applicable percentage determined under paragraph (3)(D) for subsequent taxable years in the adjustment period (beginning with the 1st of such subsequent taxable years).
"(B)
"(i) the percentage determined by dividing the aggregate contraction in revolving installment obligations by the aggregate face amount of such obligations outstanding as of the close of the taxpayer's last taxable year beginning before January 1, 1987, over
"(ii) the sum of the applicable percentages under paragraph (3)(D) (as modified by this paragraph) for prior taxable years in the adjustment period.
"(C)
"(i) the aggregate face amount of the revolving installment obligations outstanding as of the close of the taxpayer's last taxable year beginning before January 1, 1987, exceeds
"(ii) the aggregate face amount of the revolving installment obligations outstanding as of the close of the taxable year involved.
"(D)
"(E)
"(i) which was disposed of to an unrelated person on or before October 26, 1987, or
"(ii) was disposed of to an unrelated person on or after such date pursuant to a binding written contract in effect on October 26, 1987, and at all times thereafter before such disposition.
For purposes of the preceding sentence, the term 'unrelated person' means any person who is not a related person (as defined in section 453(g) of the Internal Revenue Code of 1986).
"(5)
"(A) no losses from such dispositions shall be recognized, and
"(B) the aggregate amount of the adjustment for taxable years in the adjustment period (in reverse order of time) shall be reduced by the amount of such losses.
"(6)
Amendment by section 1809(c) of
Effective Date of 1984 Amendment
"(1)
"(2)
"(3)
Amendment by section 421(b)(6)(B), (C) of
Effective Date of 1983 Amendment
Effective Date of 1981 Amendment
Amendment by
Effective Date; Application of Former Section 453(b) to Certain Dispositions
"(1)
"(2)
"(3)
"(4)
"(5)
"(6)
"(7)
"(A) paragraph (2) of such section 453(b), and
"(B) any requirement that more than 1 payment be received."
Plan Amendments Not Required Until January 1, 1989
For provisions directing that if any amendments made by subtitle A or subtitle C of title XI [§§1101–1147 and 1171–1177] or title XVIII [§§1800–1899A] of
§453A. Special rules for nondealers
(a) General rule
In the case of an installment obligation to which this section applies—
(1) interest shall be paid on the deferred tax liability with respect to such obligation in the manner provided under subsection (c), and
(2) the pledging rules under subsection (d) shall apply.
(b) Installment obligations to which section applies
(1) In general
This section shall apply to any obligation which arises from the disposition of any property under the installment method, but only if the sales price of such property exceeds $150,000.
(2) Special rule for interest payments
For purposes of subsection (a)(1), this section shall apply to an obligation described in paragraph (1) arising during a taxable year only if—
(A) such obligation is outstanding as of the close of such taxable year, and
(B) the face amount of all such obligations held by the taxpayer which arose during, and are outstanding as of the close of, such taxable year exceeds $5,000,000.
Except as provided in regulations, all persons treated as a single employer under subsection (a) or (b) of section 52 shall be treated as one person for purposes of this paragraph and subsection (c)(4).
(3) Exception for personal use and farm property
An installment obligation shall not be treated as described in paragraph (1) if it arises from the disposition—
(A) by an individual of personal use property (within the meaning of section 1275(b)(3)), or
(B) of any property used or produced in the trade or business of farming (within the meaning of section 2032A(e)(4) or (5)).
(4) Special rule for timeshares and residential lots
An installment obligation shall not be treated as described in paragraph (1) if it arises from a disposition described in section 453(l)(2)(B), but the provisions of section 453(l)(3) (relating to interest payments on timeshares and residential lots) shall apply to such obligation.
(5) Sales price
For purposes of paragraph (1), all sales or exchanges which are part of the same transaction (or a series of related transactions) shall be treated as 1 sale or exchange.
(c) Interest on deferred tax liability
(1) In general
If an obligation to which this section applies is outstanding as of the close of any taxable year, the tax imposed by this chapter for such taxable year shall be increased by the amount of interest determined in the manner provided under paragraph (2).
(2) Computation of interest
For purposes of paragraph (1), the interest for any taxable year shall be an amount equal to the product of—
(A) the applicable percentage of the deferred tax liability with respect to such obligation, multiplied by
(B) the underpayment rate in effect under section 6621(a)(2) for the month with or within which the taxable year ends.
(3) Deferred tax liability
For purposes of this section, the term "deferred tax liability" means, with respect to any taxable year, the product of—
(A) the amount of gain with respect to an obligation which has not been recognized as of the close of such taxable year, multiplied by
(B) the maximum rate of tax in effect under section 1 or 11, whichever is appropriate, for such taxable year.
For purposes of applying the preceding sentence with respect to so much of the gain which, when recognized, will be treated as long-term capital gain, the maximum rate on net capital gain under section 1(h) shall be taken into account.
(4) Applicable percentage
For purposes of this subsection, the term "applicable percentage" means, with respect to obligations arising in any taxable year, the percentage determined by dividing—
(A) the portion of the aggregate face amount of such obligations outstanding as of the close of such taxable year in excess of $5,000,000, by
(B) the aggregate face amount of such obligations outstanding as of the close of such taxable year.
(5) Treatment as interest
Any amount payable under this subsection shall be taken into account in computing the amount of any deduction allowable to the taxpayer for interest paid or accrued during the taxable year.
(6) Regulations
The Secretary shall prescribe such regulations as may be necessary to carry out the provisions of this subsection including regulations providing for the application of this subsection in the case of contingent payments, short taxable years, and pass-thru entities.
(d) Pledges, etc., of installment obligations
(1) In general
For purposes of section 453, if any indebtedness (hereinafter in this subsection referred to as "secured indebtedness") is secured by an installment obligation to which this section applies, the net proceeds of the secured indebtedness shall be treated as a payment received on such installment obligation as of the later of—
(A) the time the indebtedness becomes secured indebtedness, or
(B) the time the proceeds of such indebtedness are received by the taxpayer.
(2) Limitation based on total contract price
The amount treated as received under paragraph (1) by reason of any secured indebtedness shall not exceed the excess (if any) of—
(A) the total contract price, over
(B) any portion of the total contract price received under the contract before the later of the times referred to in subparagraph (A) or (B) of paragraph (1) (including amounts previously treated as received under paragraph (1) but not including amounts not taken into account by reason of paragraph (3)).
(3) Later payments treated as receipt of tax paid amounts
If any amount is treated as received under paragraph (1) with respect to any installment obligation, subsequent payments received on such obligation shall not be taken into account for purposes of section 453 to the extent that the aggregate of such subsequent payments does not exceed the aggregate amount treated as received under paragraph (1).
(4) Secured indebtedness
For purposes of this subsection indebtedness is secured by an installment obligation to the extent that payment of principal or interest on such indebtedness is directly secured (under the terms of the indebtedness or any underlying arrangements) by any interest in such installment obligation. A payment shall be treated as directly secured by an interest in an installment obligation to the extent an arrangement allows the taxpayer to satisfy all or a portion of the indebtedness with the installment obligation.
(e) Regulations
The Secretary shall prescribe such regulations as may be necessary to carry out the purposes of this section, including regulations—
(1) disallowing the use of the installment method in whole or in part for transactions in which the rules of this section otherwise would be avoided through the use of related persons, pass-thru entities, or intermediaries, and
(2) providing that the sale of an interest in a partnership or other pass-thru entity will be treated as a sale of the proportionate share of the assets of the partnership or other entity.
(Added
Editorial Notes
Prior Provisions
Provisions similar to those comprising this section were contained in former
Amendments
2017—Subsec. (c)(3).
1999—Subsec. (d)(4).
1993—Subsec. (c)(3).
1989—Subsec. (b)(2)(B).
Subsec. (b)(3).
Subsec. (c)(5), (6).
Subsec. (d)(1)(B).
Subsec. (d)(2)(B).
1988—
Subsec. (b)(1).
Subsec. (b)(2).
Subsec. (b)(3).
"(A) by an individual of personal use property (within the meaning of section 1275(b)(3)), or
"(B) of any property used or produced in the trade or business of farming (within the meaning of section 2032A(e)(4) or (5))."
Subsec. (c).
Subsec. (e).
1987—
1986—Subsec. (a)(2).
Subsec. (c).
Statutory Notes and Related Subsidiaries
Effective Date of 2017 Amendment
Amendment by
Effective Date of 1999 Amendment
Amendment by
Effective Date of 1993 Amendment
Amendment by
Effective Date of 1989 Amendment
Amendment by sections 7812(c)(2) and 7815(g) of
Amendment by section 7821(a)(1)–(3), (4)(B) of
Effective Date of 1988 Amendment
Amendment by section 1008(g)(2) of
Amendment by section 2004(d)(2), (7), (8) of
"(1)
"(2)
"(A) such sale is pursuant to a written binding contract in effect on October 21, 1988, and at all times thereafter before such sale,
"(B) such sale is pursuant to a letter of intent in effect on October 21, 1988, or
"(C) there is a board of directors or shareholder approval for such sale on or before October 21, 1988."
Effective Date of 1987 Amendment
Amendment by
Effective Date
For effective date, see section 6(a)(4) of
Certain Repledges Permitted
"(a)
"(b)
"(c)
"(1) a refinancing is attributable to the calling of indebtedness by the creditor, and
"(2) such refinancing is not with the creditor under the refinanced indebtedness or a person related to such creditor,
such refinancing shall, to the extent the refinanced indebtedness qualifies under subsections (a) and (b), be treated as a continuation of such refinanced indebtedness."
Amendment by Pub. L. 99–514 Treated as Change in Method of Accounting
For provisions requiring change in accounting method in the case of any taxpayer who made sales under revolving credit plan and was on installment method under this section for such taxpayer's last taxable year beginning before Jan. 1, 1987, see section 812(c)(2) of
§453B. Gain or loss on disposition of installment obligations
(a) General rule
If an installment obligation is satisfied at other than its face value or distributed, transmitted, sold, or otherwise disposed of, gain or loss shall result to the extent of the difference between the basis of the obligation and—
(1) the amount realized, in the case of satisfaction at other than face value or a sale or exchange, or
(2) the fair market value of the obligation at the time of distribution, transmission, or disposition, in the case of the distribution, transmission, or disposition otherwise than by sale or exchange.
any gain or loss so resulting shall be considered as resulting from the sale or exchange of the property in respect of which the installment obligation was received.
(b) Basis of obligation
The basis of an installment obligation shall be the excess of the face value of the obligation over an amount equal to the income which would be returnable were the obligation satisfied in full.
(c) Special rule for transmission at death
Except as provided in section 691 (relating to recipients of income in respect of decedents), this section shall not apply to the transmission of installment obligations at death.
(d) Exception for distributions to which section 337(a) applies
Subsection (a) shall not apply to any distribution to which section 337(a) applies.
(e) Life insurance companies
(1) In general
In the case of a disposition of an installment obligation by any person other than a life insurance company (as defined in section 816(a)) to such an insurance company or to a partnership of which such an insurance company is a partner, no provision of this subtitle providing for the nonrecognition of gain shall apply with respect to any gain resulting under subsection (a). If a corporation which is a life insurance company for the taxable year was (for the preceding taxable year) a corporation which was not a life insurance company, such corporation shall, for purposes of this subsection and subsection (a), be treated as having transferred to a life insurance company, on the last day of the preceding taxable year, all installment obligations which it held on such last day. A partnership of which a life insurance company becomes a partner shall, for purposes of this subsection and subsection (a), be treated as having transferred to a life insurance company, on the last day of the preceding taxable year of such partnership, all installment obligations which it holds at the time such insurance company becomes a partner.
(2) Special rule where life insurance company elects to treat income as not related to insurance business
Paragraph (1) shall not apply to any transfer or deemed transfer of an installment obligation if the life insurance company elects (at such time and in such manner as the Secretary may by regulations prescribe) to determine its life insurance company taxable income—
(A) by returning the income on such installment obligation under the installment method prescribed in section 453, and
(B) as if such income were an item attributable to a noninsurance business.
(3) Noninsurance business
(A) In general
For purposes of this subsection, the term "noninsurance business" means any activity which is not an insurance business.
(B) Certain activities treated as insurance businesses
For purposes of subparagraph (A), any activity which is not an insurance business shall be treated as an insurance business if—
(i) it is of a type traditionally carried on by life insurance companies for investment purposes, but only if the carrying on of such activity (other than in the case of real estate) does not constitute the active conduct of a trade or business, or
(ii) it involves the performance of administrative services in connection with plans providing life insurance, pension, or accident and health benefits.
(f) Obligation becomes unenforceable
For purposes of this section, if any installment obligation is canceled or otherwise becomes unenforceable—
(1) the obligation shall be treated as if it were disposed of in a transaction other than a sale or exchange, and
(2) if the obligor and obligee are related persons (within the meaning of section 453(f)(1)), the fair market value of the obligation shall be treated as not less than its face amount.
(g) Transfers between spouses or incident to divorce
In the case of any transfer described in subsection (a) of section 1041 (other than a transfer in trust)—
(1) subsection (a) of this section shall not apply, and
(2) the same tax treatment with respect to the transferred installment obligation shall apply to the transferee as would have applied to the transferor.
(h) Certain liquidating distributions by S corporations
If—
(1) an installment obligation is distributed by an S corporation in a complete liquidation, and
(2) receipt of the obligation is not treated as payment for the stock by reason of section 453(h)(1),
then, except for purposes of any tax imposed by subchapter S, no gain or loss with respect to the distribution of the obligation shall be recognized by the distributing corporation. Under regulations prescribed by the Secretary, the character of the gain or loss to the shareholder shall be determined in accordance with the principles of section 1366(b).
(Added
Editorial Notes
Prior Provisions
Provisions similar to those comprising this section were contained in former
Amendments
2018—
2017—Subsec. (e)(2)(B).
Subsec. (e)(3).
1990—Subsec. (d).
"(1) an installment obligation is distributed in a liquidation to which section 332 (relating to complete liquidations of subsidiaries) applies, and
"(2) the basis of such obligation in the hands of the distributee is determined under section 334(b)(1),
then no gain or loss with respect to the distribution of such obligation shall be recognized by the distributing corporation."
1988—Subsec. (h).
1986—Subsec. (d).
Subsec. (e)(2)(B).
Subsec. (g).
1984—Subsec. (d)(2).
Subsec. (e)(1).
Subsec. (e)(2).
Subsec. (g).
1983—Subsec. (d)(2).
1980—Subsec. (d).
Statutory Notes and Related Subsidiaries
Effective Date of 2017 Amendment
Effective Date of 1990 Amendment
Amendment by
Effective Date of 1988 Amendment
Amendment by
Effective Date of 1986 Amendment
Amendment by section 631(e)(9) of
Amendment by section 1842(c) of
Effective Date of 1984 Amendment
Amendment by section 43(c)(2) of
Amendment by section 211(b)(6) of
Amendment by section 421(b)(3) of
Amendment by section 492(b)(3) of
Effective Date of 1983 Amendment
Amendment by
Effective Date of 1980 Amendment
For effective date of amendment by
Effective Date
For effective date, see section 6(a)(1), (5) of
Repeal of Modification of Installment Method
"(a)
"(b)
Plan Amendments Not Required Until January 1, 1989
For provisions directing that if any amendments made by subtitle A or subtitle C of title XI [§§1101–1147 and 1171–1177] or title XVIII [§§1800–1899A] of
Treatment of Elections Under Section 453B(e)(2)
[§453C. Repealed. Pub. L. 100–203, title X, §10202(a)(1), Dec. 22, 1987, 101 Stat. 1330–388 ]
Section, added
Statutory Notes and Related Subsidiaries
Effective Date of Repeal
Repeal applicable to dispositions in taxable years beginning after Dec. 31, 1987, with special rules for dealers and non-dealers, and coordination with Tax Reform Act of 1986, see section 10202(e)(1)–(3), (5) of
Applicability of Amendments by Pub. L. 100–203 and Pub. L. 100–647
Effective Date; Allocation of Indebtedness as Payment on Installment Obligation
"(1)
"[(2) Repealed.
"(3)
"(A) 125/8 percent subordinated debentures with a total face amount of $175,000,000 issued pursuant to a trust indenture dated as of September 1, 1985.
"(B) A revolving credit term loan in the maximum amount of $130,000,000 made pursuant to a revolving credit and security agreement dated as of September 6, 1985, payable in various stages with final payment due on August 31, 1992.
This paragraph shall also apply to indebtedness which replaces indebtedness described in this paragraph if such indebtedness does not exceed the amount and maturity of the indebtedness it replaces.
"(4)
"(A) for which a contract to purchase land for the project was entered into at least 5 years before the date of the enactment of this Act,
"(B) with respect to which land for the project was purchased before September 26, 1985,
"(C) with respect to which building permits for the project were obtained, and construction commenced, before September 26, 1985,
"(D) in conjunction with which not less than 80 units of low-income housing are deeded to a tax-exempt organization designated by a local government, and
"(E) with respect to which at least $1,000,000 of expenses were incurred before September 26, 1985.
"(5)
"(A) such corporation was incorporated on May 25, 1984, for the purpose of acquiring all of the stock of another corporation,
"(B) such acquisition took place on October 23, 1984,
"(C) in connection with such acquisition, the corporation incurred indebtedness of approximately $151,000,000, and
"(D) substantially all of the stock of the corporation is owned directly or indirectly by employees of the corporation the stock of which was acquired on October 23, 1984.
"(6)
"(A) in the 1st taxable year of the taxpayer ending after December 31, 1986, shall be taken into account ratably over the 3 taxable years beginning with such 1st taxable year, and
"(B) in the 2nd taxable year of the taxpayer ending after December 31, 1986, shall be taken into account ratably over the 2 taxable years beginning with such 2nd taxable year.
"(7)
"(A) any increase in tax imposed by
"(B) any increase in tax imposed by such
"(8)
"(A) such note agreement was executed pursuant to an agreement of purchase and sale dated April 25, 1980,
"(B) more than ½ of the installment payments of the aggregate principal of such notes have been received by August 29, 1986, and
"(C) the last installment payment of the principal of such notes is due August 29, 1989,
shall be taxed at a rate of 28 percent.
"(9)
"(A)
"(B)
[
["(1)
["(2)
["(A) such changes shall be treated as initiated by the taxpayer,
["(B) such changes shall be treated as made with the consent of the Secretary of the Treasury, and
["(C) the net amount of the adjustments required to be taken into account under section 481(a) of the Internal Revenue Code of 1986 shall be taken into account ratably over the 4 taxable year period beginning with the first taxable year beginning more than 1 year after the date of the enactment of this Act."]
§454. Obligations issued at discount
(a) Non-interest-bearing obligations issued at a discount
If, in the case of a taxpayer owning any non-interest-bearing obligation issued at a discount and redeemable for fixed amounts increasing at stated intervals or owning an obligation described in paragraph (2) of subsection (c), the increase in the redemption price of such obligation occurring in the taxable year does not (under the method of accounting used in computing his taxable income) constitute income to him in such year, such taxpayer may, at his election made in his return for any taxable year, treat such increase as income received in such taxable year. If any such election is made with respect to any such obligation, it shall apply also to all such obligations owned by the taxpayer at the beginning of the first taxable year to which it applies and to all such obligations thereafter acquired by him and shall be binding for all subsequent taxable years, unless on application by the taxpayer the Secretary permits him, subject to such conditions as the Secretary deems necessary, to change to a different method. In the case of any such obligations owned by the taxpayer at the beginning of the first taxable year to which his election applies, the increase in the redemption price of such obligations occurring between the date of acquisition (or, in the case of an obligation described in paragraph (2) of subsection (c), the date of acquisition of the series E bond involved) and the first day of such taxable year shall also be treated as income received in such taxable year.
(b) Short-term obligations issued on discount basis
In the case of any obligation—
(1) of the United States; or
(2) of a State or a possession of the United States, or any political subdivision of any of the foregoing, or of the District of Columbia,
which is issued on a discount basis and payable without interest at a fixed maturity date not exceeding 1 year from the date of issue, the amount of discount at which such obligation is originally sold shall not be considered to accrue until the date on which such obligation is paid at maturity, sold, or otherwise disposed of.
(c) Matured United States savings bonds
In the case of a taxpayer who—
(1) holds a series E United States savings bond at the date of maturity, and
(2) pursuant to regulations prescribed under
the increase in redemption value (to the extent not previously includible in gross income) in excess of the amount paid for such series E bond shall be includible in gross income in the taxable year in which the obligation is finally redeemed or in the taxable year of final maturity, whichever is earlier. This subsection shall not apply to a corporation, and shall not apply in the case of any taxable year for which the taxpayer's taxable income is computed under an accrual method of accounting or for which an election made by the taxpayer under subsection (a) applies.
(Aug. 16, 1954, ch. 736,
Editorial Notes
Amendments
1983—Subsec. (c)(2).
1976—Subsec. (a).
Subsec. (b)(2).
1959—Subsec. (c)(2).
§455. Prepaid subscription income
(a) Year in which included
Prepaid subscription income to which this section applies shall be included in gross income for the taxable years during which the liability described in subsection (d)(2) exists.
(b) Where taxpayer's liability ceases
In the case of any prepaid subscription income to which this section applies—
(1) If the liability described in subsection (d)(2) ends, then so much of such income as was not includible in gross income under subsection (a) for preceding taxable years shall be included in gross income for the taxable year in which the liability ends.
(2) If the taxpayer dies or ceases to exist, then so much of such income as was not includible in gross income under subsection (a) for preceding taxable years shall be included in gross income for the taxable year in which such death, or such cessation of existence, occurs.
(c) Prepaid subscription income to which this section applies
(1) Election of benefits
This section shall apply to prepaid subscription income if and only if the taxpayer makes an election under this section with respect to the trade or business in connection with which such income is received. The election shall be made in such manner as the Secretary may by regulations prescribe. No election may be made with respect to a trade or business if in computing taxable income the cash receipts and disbursements method of accounting is used with respect to such trade or business.
(2) Scope of election
An election made under this section shall apply to all prepaid subscription income received in connection with the trade or business with respect to which the taxpayer has made the election; except that the taxpayer may, to the extent permitted under regulations prescribed by the Secretary, include in gross income for the taxable year of receipt the entire amount of any prepaid subscription income if the liability from which it arose is to end within 12 months after the date of receipt. An election made under this section shall not apply to any prepaid subscription income received before the first taxable year for which the election is made.
(3) When election may be made
(A) With consent
A taxpayer may, with the consent of the Secretary, make an election under this section at any time.
(B) Without consent
A taxpayer may, without the consent of the Secretary, make an election under this section for his first taxable year in which he receives prepaid subscription income in the trade or business. Such election shall be made not later than the time prescribed by law for filing the return for the taxable year (including extensions thereof) with respect to which such election is made.
(4) Period to which election applies
An election under this section shall be effective for the taxable year with respect to which it is first made and for all subsequent taxable years, unless the taxpayer secures the consent of the Secretary to the revocation of such election. For purposes of this title, the computation of taxable income under an election made under this section shall be treated as a method of accounting.
(d) Definitions
For purposes of this section—
(1) Prepaid subscription income
The term "prepaid subscription income" means any amount (includible in gross income) which is received in connection with, and is directly attributable to, a liability which extends beyond the close of the taxable year in which such amount is received, and which is income from a subscription to a newspaper, magazine, or other periodical.
(2) Liability
The term "liability" means a liability to furnish or deliver a newspaper, magazine, or other periodical.
(3) Receipt of prepaid subscription income
Prepaid subscription income shall be treated as received during the taxable year for which it is includible in gross income under section 451 (without regard to this section).
(e) Deferral of income under established accounting procedures
Notwithstanding the provisions of this section, any taxpayer who has, for taxable years prior to the first taxable year to which this section applies, reported his income under an established and consistent method or practice of accounting for prepaid subscription income (to which this section would apply if an election were made) may continue to report his income for taxable years to which this title applies in accordance with such method or practice.
(Added
Editorial Notes
Amendments
1976—Subsec. (c).
Subsec. (c)(3)(B).
Statutory Notes and Related Subsidiaries
Effective Date of 1976 Amendment
Amendment by section 1901(a)(67) of
Effective Date
§456. Prepaid dues income of certain membership organizations
(a) Year in which included
Prepaid dues income to which this section applies shall be included in gross income for the taxable years during which the liability described in subsection (e)(2) exists.
(b) Where taxpayer's liability ceases
In the case of any prepaid dues income to which this section applies—
(1) If the liability described in subsection (e)(2) ends, then so much of such income as was not includible in gross income under subsection (a) for preceding taxable years shall be included in gross income for the taxable year in which the liability ends.
(2) If the taxpayer ceases to exist, then so much of such income as was not includible in gross income under subsection (a) for preceding taxable years shall be included in gross income for the taxable year in which such cessation of existence occurs.
(c) Prepaid dues income to which this section applies
(1) Election of benefits
This section shall apply to prepaid dues income if and only if the taxpayer makes an election under this section with respect to the trade or business in connection with which such income is received. The election shall be made in such manner as the Secretary may by regulations prescribe. No election may be made with respect to a trade or business if in computing taxable income the cash receipts and disbursements method of accounting is used with respect to such trade or business.
(2) Scope of election
An election made under this section shall apply to all prepaid dues income received in connection with the trade or business with respect to which the taxpayer has made the election; except that the taxpayer may, to the extent permitted under regulations prescribed by the Secretary, include in gross income for the taxable year of receipt the entire amount of any prepaid dues income if the liability from which it arose is to end within 12 months after the date of receipt. Except as provided in subsection (d), and election made under this section shall not apply to any prepaid dues income received before the first taxable year for which the election is made.
(3) When election may be made
(A) With consent
A taxpayer may, with the consent of the Secretary, make an election under this section at any time.
(B) Without consent
A taxpayer may, without the consent of the Secretary, make an election under this section for its first taxable year in which it receives prepaid dues income in the trade or business. Such election shall be made not later than the time prescribed by law for filing the return for the taxable year (including extensions thereof) with respect to which such election is made.
(4) Period to which election applies
An election under this section shall be effective for the taxable year with respect to which it is first made and for all subsequent taxable years, unless the taxpayer secures the consent of the Secretary to the revocation of such election. For purposes of this title, the computation of taxable income under an election made under this section shall be treated as a method of accounting.
(d) Transitional rule
(1) Amount includible in gross income for election years
If a taxpayer makes an election under this section with respect to prepaid dues income, such taxpayer shall include in gross income, for each taxable year to which such election applies, not only that portion of prepaid dues income received in such year otherwise includible in gross income for such year under this section, but shall also include in gross income for such year an additional amount equal to the amount of prepaid dues income received in the 3 taxable years preceding the first taxable year to which such election applies which would have been included in gross income in the taxable year had the election been effective 3 years earlier.
(2) Deductions of amounts included in income more than once
A taxpayer who makes an election with respect to prepaid dues income, and who includes in gross income for any taxable year to which the election applies an additional amount computed under paragraph (1), shall be permitted to deduct, for such taxable year and for each of the 4 succeeding taxable years, an amount equal to one-fifth of such additional amount, but only to the extent that such additional amount was also included in the taxpayer's gross income during any of the 3 taxable years preceding the first taxable year to which such election applies.
(e) Definitions
For purposes of this section—
(1) Prepaid dues income
The term "prepaid dues income" means any amount (includible in gross income) which is received by a membership organization in connection with, and is directly attributable to, a liability to render services or make available membership privileges over a period of time which extends beyond the close of the taxable year in which such amount is received.
(2) Liability
The term "liability" means a liability to render services or make available membership privileges over a period of time which does not exceed 36 months, which liability shall be deemed to exist ratably over the period of time that such services are required to be rendered, or that such membership privileges are required to be made available.
(3) Membership organization
The term "membership organization" means a corporation, association, federation, or other organization—
(A) organized without capital stock of any kind, and
(B) no part of the net earnings of which is distributable to any member.
(4) Receipt of prepaid dues income
Prepaid dues income shall be treated as received during the taxable year for which it is includible in gross income under section 451 (without regard to this section).
(Added
Editorial Notes
Amendments
1976—Subsec. (c).
Subsec. (c)(3)(B).
Statutory Notes and Related Subsidiaries
Effective Date of 1976 Amendment
Amendment by section 1901(a)(68) of
Effective Date
§457. Deferred compensation plans of State and local governments and tax-exempt organizations
(a) Year of inclusion in gross income
(1) In general
Any amount of compensation deferred under an eligible deferred compensation plan, and any income attributable to the amounts so deferred, shall be includible in gross income only for the taxable year in which such compensation or other income—
(A) is paid to the participant or other beneficiary, in the case of a plan of an eligible employer described in subsection (e)(1)(A), and
(B) is paid or otherwise made available to the participant or other beneficiary, in the case of a plan of an eligible employer described in subsection (e)(1)(B).
(2) Special rule for rollover amounts
To the extent provided in section 72(t)(9), section 72(t) shall apply to any amount includible in gross income under this subsection.
(3) Special rule for health and long-term care insurance
In the case of a plan of an eligible employer described in subsection (e)(1)(A), to the extent provided in section 402(l), paragraph (1) shall not apply to amounts otherwise includible in gross income under this subsection.
(b) Eligible deferred compensation plan defined
For purposes of this section, the term "eligible deferred compensation plan" means a plan established and maintained by an eligible employer—
(1) in which only individuals who perform service for the employer may be participants,
(2) which provides that (except as provided in paragraph (3)) the maximum amount which may be deferred under the plan for the taxable year (other than rollover amounts) shall not exceed the lesser of—
(A) the applicable dollar amount, or
(B) 100 percent of the participant's includible compensation,
(3) which may provide that, for 1 or more of the participant's last 3 taxable years ending before he attains normal retirement age under the plan, the ceiling set forth in paragraph (2) shall be the lesser of—
(A) twice the dollar amount in effect under subsection (b)(2)(A), or
(B) the sum of—
(i) the plan ceiling established for purposes of paragraph (2) for the taxable year (determined without regard to this paragraph), plus
(ii) so much of the plan ceiling established for purposes of paragraph (2) for taxable years before the taxable year as has not previously been used under paragraph (2) or this paragraph,
(4) which provides that compensation will be deferred for any calendar month only if an agreement providing for such deferral has been entered into before the beginning of such month,
(5) which meets the distribution requirements of subsection (d), and
(6) except as provided in subsection (g), which provides that—
(A) all amounts of compensation deferred under the plan,
(B) all property and rights purchased with such amounts, and
(C) all income attributable to such amounts, property, or rights,
shall remain (until made available to the participant or other beneficiary) solely the property and rights of the employer (without being restricted to the provision of benefits under the plan), subject only to the claims of the employer's general creditors.
A plan which is established and maintained by an employer which is described in subsection (e)(1)(A) and which is administered in a manner which is inconsistent with the requirements of any of the preceding paragraphs shall be treated as not meeting the requirements of such paragraph as of the 1st plan year beginning more than 180 days after the date of notification by the Secretary of the inconsistency unless the employer corrects the inconsistency before the 1st day of such plan year.
(c) Limitation
The maximum amount of the compensation of any one individual which may be deferred under subsection (a) during any taxable year shall not exceed the amount in effect under subsection (b)(2)(A) (as modified by any adjustment provided under subsection (b)(3)).
(d) Distribution requirements
(1) In general
For purposes of subsection (b)(5), a plan meets the distribution requirements of this subsection if—
(A) under the plan amounts will not be made available to participants or beneficiaries earlier than—
(i) the calendar year in which the participant attains age 70½ (in the case of a plan maintained by an employer described in subsection (e)(1)(A), age 59½),
(ii) when the participant has a severance from employment with the employer,
(iii) when the participant is faced with an unforeseeable emergency (determined in the manner prescribed by the Secretary in regulations), or
(iv) except as may be otherwise provided by regulations, in the case of a plan maintained by an employer described in subsection (e)(1)(A), with respect to amounts invested in a lifetime income investment (as defined in section 401(a)(38)(B)(ii)), the date that is 90 days prior to the date that such lifetime income investment may no longer be held as an investment option under the plan,
(B) the plan meets the minimum distribution requirements of paragraph (2),
(C) in the case of a plan maintained by an employer described in subsection (e)(1)(A), the plan meets requirements similar to the requirements of section 401(a)(31), and
(D) except as may be otherwise provided by regulations, in the case of amounts described in subparagraph (A)(iv), such amounts will be distributed only in the form of a qualified distribution (as defined in section 401(a)(38)(B)(i)) or a qualified plan distribution annuity contract (as defined in section 401(a)(38)(B)(iv)).
Any amount transferred in a direct trustee-to-trustee transfer in accordance with section 401(a)(31) shall not be includible in gross income for the taxable year of transfer.
(2) Minimum distribution requirements
A plan meets the minimum distribution requirements of this paragraph if such plan meets the requirements of section 401(a)(9).
(3) Special rule for government plan
An eligible deferred compensation plan of an employer described in subsection (e)(1)(A) shall not be treated as failing to meet the requirements of this subsection solely by reason of making a distribution described in subsection (e)(9)(A).
(e) Other definitions and special rules
For purposes of this section—
(1) Eligible employer
The term "eligible employer" means—
(A) a State, political subdivision of a State, and any agency or instrumentality of a State or political subdivision of a State, and
(B) any other organization (other than a governmental unit) exempt from tax under this subtitle.
(2) Performance of service
The performance of service includes performance of service as an independent contractor and the person (or governmental unit) for whom such services are performed shall be treated as the employer.
(3) Participant
The term "participant" means an individual who is eligible to defer compensation under the plan.
(4) Beneficiary
The term "beneficiary" means a beneficiary of the participant, his estate, or any other person whose interest in the plan is derived from the participant.
(5) Includible compensation
The term "includible compensation" has the meaning given to the term "participant's compensation" by section 415(c)(3).
(6) Compensation taken into account at present value
Compensation shall be taken into account at its present value.
(7) Community property laws
The amount of includible compensation shall be determined without regard to any community property laws.
(8) Income attributable
Gains from the disposition of property shall be treated as income attributable to such property.
(9) Benefits of tax exempt organization plans not treated as made available by reason of certain elections, etc.
In the case of an eligible deferred compensation plan of an employer described in subsection (e)(1)(B)—
(A) Total amount payable is dollar limit or less
The total amount payable to a participant under the plan shall not be treated as made available merely because the participant may elect to receive such amount (or the plan may distribute such amount without the participant's consent) if—
(i) the portion of such amount which is not attributable to rollover contributions (as defined in section 411(a)(11)(D)) does not exceed the dollar limit under section 411(a)(11)(A), and
(ii) such amount may be distributed only if—
(I) no amount has been deferred under the plan with respect to such participant during the 2-year period ending on the date of the distribution, and
(II) there has been no prior distribution under the plan to such participant to which this subparagraph applied.
A plan shall not be treated as failing to meet the distribution requirements of subsection (d) by reason of a distribution to which this subparagraph applies.
(B) Election to defer commencement of distributions
The total amount payable to a participant under the plan shall not be treated as made available merely because the participant may elect to defer commencement of distributions under the plan if—
(i) such election is made after amounts may be available under the plan in accordance with subsection (d)(1)(A) and before commencement of such distributions, and
(ii) the participant may make only 1 such election.
(10) Transfers between plans
A participant shall not be required to include in gross income any portion of the entire amount payable to such participant solely by reason of the transfer of such portion from 1 eligible deferred compensation plan to another eligible deferred compensation plan.
(11) Certain plans excluded
(A) In general
The following plans shall be treated as not providing for the deferral of compensation:
(i) Any bona fide vacation leave, sick leave, compensatory time, severance pay, disability pay, or death benefit plan.
(ii) Any plan paying solely length of service awards to bona fide volunteers (or their beneficiaries) on account of qualified services performed by such volunteers.
(B) Special rules applicable to length of service award plans
(i) Bona fide volunteer
An individual shall be treated as a bona fide volunteer for purposes of subparagraph (A)(ii) if the only compensation received by such individual for performing qualified services is in the form of—
(I) reimbursement for (or a reasonable allowance for) reasonable expenses incurred in the performance of such services, or
(II) reasonable benefits (including length of service awards), and nominal fees for such services, customarily paid by eligible employers in connection with the performance of such services by volunteers.
(ii) Limitation on accruals
A plan shall not be treated as described in subparagraph (A)(ii) if the aggregate amount of length of service awards accruing with respect to any year of service for any bona fide volunteer exceeds $6,000.
(iii) Cost of living adjustment
In the case of taxable years beginning after December 31, 2017, the Secretary shall adjust the $6,000 amount under clause (ii) at the same time and in the same manner as under section 415(d), except that the base period shall be the calendar quarter beginning July 1, 2016, and any increase under this paragraph that is not a multiple of $500 shall be rounded to the next lowest multiple of $500.
(iv) Special rule for application of limitation on accruals for certain plans
In the case of a plan described in subparagraph (A)(ii) which is a defined benefit plan (as defined in section 414(j)), the limitation under clause (ii) shall apply to the actuarial present value of the aggregate amount of length of service awards accruing with respect to any year of service. Such actuarial present value with respect to any year shall be calculated using reasonable actuarial assumptions and methods, assuming payment will be made under the most valuable form of payment under the plan with payment commencing at the later of the earliest age at which unreduced benefits are payable under the plan or the participant's age at the time of the calculation.
(C) Qualified services
For purposes of this paragraph, the term "qualified services" means fire fighting and prevention services, emergency medical services, and ambulance services.
(D) Certain voluntary early retirement incentive plans
(i) In general
If an applicable voluntary early retirement incentive plan—
(I) makes payments or supplements as an early retirement benefit, a retirement-type subsidy, or a benefit described in the last sentence of section 411(a)(9), and
(II) such payments or supplements are made in coordination with a defined benefit plan which is described in section 401(a) and includes a trust exempt from tax under section 501(a) and which is maintained by an eligible employer described in paragraph (1)(A) or by an education association described in clause (ii)(II),
such applicable plan shall be treated for purposes of subparagraph (A)(i) as a bona fide severance pay plan with respect to such payments or supplements to the extent such payments or supplements could otherwise have been provided under such defined benefit plan (determined as if section 411 applied to such defined benefit plan).
(ii) Applicable voluntary early retirement incentive plan
For purposes of this subparagraph, the term "applicable voluntary early retirement incentive plan" means a voluntary early retirement incentive plan maintained by—
(I) a local educational agency (as defined in section 8101 of the Elementary and Secondary Education Act of 1965), or
(II) an education association which principally represents employees of 1 or more agencies described in subclause (I) and which is described in section 501(c)(5) or (6) and exempt from tax under section 501(a).
(12) Exception for nonelective deferred compensation of nonemployees
(A) In general
This section shall not apply to nonelective deferred compensation attributable to services not performed as an employee.
(B) Nonelective deferred compensation
For purposes of subparagraph (A), deferred compensation shall be treated as nonelective only if all individuals (other than those who have not satisfied any applicable initial service requirement) with the same relationship to the payor are covered under the same plan with no individual variations or options under the plan.
(13) Special rule for churches
The term "eligible employer" shall not include a church (as defined in section 3121(w)(3)(A)) or qualified church-controlled organization (as defined in section 3121(w)(3)(B)).
(14) Treatment of qualified governmental excess benefit arrangements
Subsections (b)(2) and (c)(1) shall not apply to any qualified governmental excess benefit arrangement (as defined in section 415(m)(3)), and benefits provided under such an arrangement shall not be taken into account in determining whether any other plan is an eligible deferred compensation plan.
(15) Applicable dollar amount
(A) In general
The applicable dollar amount is $15,000.
(B) Cost-of-living adjustments
In the case of taxable years beginning after December 31, 2006, the Secretary shall adjust the $15,000 amount under subparagraph (A) at the same time and in the same manner as under section 415(d), except that the base period shall be the calendar quarter beginning July 1, 2005, and any increase under this paragraph which is not a multiple of $500 shall be rounded to the next lowest multiple of $500.
(16) Rollover amounts
(A) General rule
In the case of an eligible deferred compensation plan established and maintained by an employer described in subsection (e)(1)(A), if—
(i) any portion of the balance to the credit of an employee in such plan is paid to such employee in an eligible rollover distribution (within the meaning of section 402(c)(4)),
(ii) the employee transfers any portion of the property such employee receives in such distribution to an eligible retirement plan described in section 402(c)(8)(B), and
(iii) in the case of a distribution of property other than money, the amount so transferred consists of the property distributed,
then such distribution (to the extent so transferred) shall not be includible in gross income for the taxable year in which paid.
(B) Certain rules made applicable
The rules of paragraphs (2) through (7), (9), and (11) of section 402(c) and section 402(f) shall apply for purposes of subparagraph (A).
(C) Reporting
Rollovers under this paragraph shall be reported to the Secretary in the same manner as rollovers from qualified retirement plans (as defined in section 4974(c)).
(17) Trustee-to-trustee transfers to purchase permissive service credit
No amount shall be includible in gross income by reason of a direct trustee-to-trustee transfer to a defined benefit governmental plan (as defined in section 414(d)) if such transfer is—
(A) for the purchase of permissive service credit (as defined in section 415(n)(3)(A)) under such plan, or
(B) a repayment to which section 415 does not apply by reason of subsection (k)(3) thereof.
(18) Coordination with catch-up contributions for individuals age 50 or older
In the case of an individual who is an eligible participant (as defined by section 414(v)) and who is a participant in an eligible deferred compensation plan of an employer described in paragraph (1)(A), subsections (b)(3) and (c) shall be applied by substituting for the amount otherwise determined under the applicable subsection the greater of—
(A) the sum of—
(i) the plan ceiling established for purposes of subsection (b)(2) (without regard to subsection (b)(3)), plus
(ii) the applicable dollar amount for the taxable year determined under section 414(v)(2)(B)(i), or
(B) the amount determined under the applicable subsection (without regard to this paragraph).
(f) Tax treatment of participants where plan or arrangement of employer is not eligible
(1) In general
In the case of a plan of an eligible employer providing for a deferral of compensation, if such plan is not an eligible deferred compensation plan, then—
(A) the compensation shall be included in the gross income of the participant or beneficiary for the 1st taxable year in which there is no substantial risk of forfeiture of the rights to such compensation, and
(B) the tax treatment of any amount made available under the plan to a participant or beneficiary shall be determined under section 72 (relating to annuities, etc.).
(2) Exceptions
Paragraph (1) shall not apply to—
(A) a plan described in section 401(a) which includes a trust exempt from tax under section 501(a),
(B) an annuity plan or contract described in section 403,
(C) that portion of any plan which consists of a transfer of property described in section 83,
(D) that portion of any plan which consists of a trust to which section 402(b) applies,
(E) a qualified governmental excess benefit arrangement described in section 415(m), and
(F) that portion of any applicable employment retention plan described in paragraph (4) with respect to any participant.
(3) Definitions
For purposes of this subsection—
(A) Plan includes arrangements, etc.
The term "plan" includes any agreement or arrangement.
(B) Substantial risk of forfeiture
The rights of a person to compensation are subject to a substantial risk of forfeiture if such person's rights to such compensation are conditioned upon the future performance of substantial services by any individual.
(4) Employment retention plans
For purposes of paragraph (2)(F)—
(A) In general
The portion of an applicable employment retention plan described in this paragraph with respect to any participant is that portion of the plan which provides benefits payable to the participant not in excess of twice the applicable dollar limit determined under subsection (e)(15).
(B) Other rules
(i) Limitation
Paragraph (2)(F) shall only apply to the portion of the plan described in subparagraph (A) for years preceding the year in which such portion is paid or otherwise made available to the participant.
(ii) Treatment
A plan shall not be treated for purposes of this title as providing for the deferral of compensation for any year with respect to the portion of the plan described in subparagraph (A).
(C) Applicable employment retention plan
The term "applicable employment retention plan" means an employment retention plan maintained by—
(i) a local educational agency (as defined in section 8101 of the Elementary and Secondary Education Act of 1965 (
(ii) an education association which principally represents employees of 1 or more agencies described in clause (i) and which is described in section 501(c)(5) or (6) and exempt from taxation under section 501(a).
(D) Employment retention plan
The term "employment retention plan" means a plan to pay, upon termination of employment, compensation to an employee of a local educational agency or education association described in subparagraph (C) for purposes of—
(i) retaining the services of the employee, or
(ii) rewarding such employee for the employee's service with 1 or more such agencies or associations.
(g) Governmental plans must maintain set-asides for exclusive benefit of participants
(1) In general
A plan maintained by an eligible employer described in subsection (e)(1)(A) shall not be treated as an eligible deferred compensation plan unless all assets and income of the plan described in subsection (b)(6) are held in trust for the exclusive benefit of participants and their beneficiaries.
(2) Taxability of trusts and participants
For purposes of this title—
(A) a trust described in paragraph (1) shall be treated as an organization exempt from taxation under section 501(a), and
(B) notwithstanding any other provision of this title, amounts in the trust shall be includible in the gross income of participants and beneficiaries only to the extent, and at the time, provided in this section.
(3) Custodial accounts and contracts
For purposes of this subsection, custodial accounts and contracts described in section 401(f) shall be treated as trusts under rules similar to the rules under section 401(f).
(4) Death benefits under USERRA-qualified active military service
A plan described in paragraph (1) shall not be treated as an eligible deferred compensation plan unless such plan meets the requirements of section 401(a)(37).
(Added
Inflation Adjusted Items for Certain Years
For inflation adjustment of certain items in this section, see Internal Revenue Notices listed in a table under
Editorial Notes
References in Text
Section 8101 of the Elementary and Secondary Education Act of 1965, referred to in subsec. (e)(11)(D)(ii)(I), is classified to
Amendments
2019—Subsec. (d)(1)(A)(i).
Subsec. (d)(1)(A)(iv).
Subsec. (d)(1)(D).
2018—Subsec. (f)(4)(C)(i).
2017—Subsec. (e)(11)(B)(ii).
Subsec. (e)(11)(B)(iii).
Subsec. (e)(11)(B)(iv).
2015—Subsec. (e)(11)(D)(ii)(I).
2014—Subsec. (e)(15)(A).
2008—Subsec. (g)(4).
2006—Subsec. (a)(3).
Subsec. (e)(11)(D).
Subsec. (e)(16)(B).
Subsec. (f)(2)(F).
Subsec. (f)(4).
2002—Subsec. (e)(5).
Subsec. (e)(18).
2001—Subsec. (a).
Subsec. (b)(2).
Subsec. (b)(2)(A).
Subsec. (b)(2)(B).
Subsec. (b)(3)(A).
Subsec. (c).
Subsec. (c)(1).
Subsec. (c)(2).
Subsec. (d)(1).
Subsec. (d)(1)(A)(ii).
Subsec. (d)(2).
Subsec. (d)(3).
Subsec. (e)(9).
Subsec. (e)(9)(A)(i).
Subsec. (e)(15).
Subsec. (e)(16).
Subsec. (e)(17).
1997—Subsec. (e)(9)(A).
1996—Subsec. (b)(6).
Subsec. (c)(2)(B)(i).
Subsec. (e)(9).
"(A) the total amount payable to a participant under the plan does not exceed $3,500, and
"(B) no additional amounts may be deferred under the plan with respect to the participant,
the amount payable to the participant under the plan shall not be treated as made available merely because such participant may elect to receive a lump sum payable after separation from service and within 60 days of the election."
Subsec. (e)(11).
Subsec. (e)(14).
Subsec. (e)(15).
Subsec. (f)(2)(E).
Subsec. (g).
1992—Subsec. (c)(2)(B)(i).
1989—Subsec. (d)(1)(A)(iii).
Subsec. (d)(2)(B)(i)(I).
Subsec. (e)(13).
1988—Subsec. (c)(2).
Subsec. (d)(1)(A).
Subsec. (d)(2)(B)(i)(I).
Subsec. (d)(10).
Subsec. (d)(11).
"(A)
"(B)
Subsec. (e)(9).
Subsec. (e)(11).
Subsec. (e)(12).
Subsec. (e)(13).
1986—
1984—Subsec. (e)(2).
1980—Subsec. (d)(9)(B).
Statutory Notes and Related Subsidiaries
Effective Date of 2019 Amendment
Amendment by section 104(b) of
Amendment by section 109(d) of
Effective Date of 2017 Amendment
Effective Date of 2015 Amendment
Amendment by
Effective Date of 2014 Amendment
Amendment by
Effective Date of 2008 Amendment
Amendment by
Effective Date of 2006 Amendment
Amendment by section 829(a)(4) of
Amendment by section 845(b)(3) of
"(1)
"(2)
"(3) ERISA
"(4)
Effective Date of 2002 Amendment
Amendment by
Effective Date of 2001 Amendment
Amendment by section 611(d)(3)(B), (e) of
Amendment by section 641(a)(1)(A)–(C) of
Amendment by section 646(a)(3) of
Amendment by section 647(b) of
Amendment by section 648(b) of
Effective Date of 1997 Amendment
Amendment by
Effective Date of 1996 Amendment
Amendment by section 1421(b)(3)(C) of
Amendment by section 1444(b)(2), (3) of
"(1)
"(2)
Effective Date of 1992 Amendment
Amendment by
Effective Date of 1989 Amendment
Amendment by
Effective Date of 1988 Amendment
Amendment by section 1011(e)(1), (2), (10) of
"(1)
"(2)
"(A)
"(B)
"(C)
"(3)
"(A) if such amounts were deferred from periods before July 14, 1988, or
"(B) if—
"(i) such amounts are deferred from periods on or after such date pursuant to an agreement which—
"(I) was in writing on such date, and
"(II) on such date provides for a deferral for each taxable year covered by the agreement of a fixed amount or of an amount determined pursuant to a fixed formula, and
"(ii) the individual with respect to whom the deferral is made was covered under such agreement on such date.
Subparagraph (B) shall not apply to any taxable year ending after the date on which any modification of the amount or formula described in subparagraph (B)(i)(II) agreed to in writing before January 1, 1989, is effective. The preceding sentence shall not apply to a modification agreed to in writing before January 1, 1989, which does not increase any benefit of a participant. Amounts described in the first sentence of this paragraph shall be taken into account for purposes of applying section 457 of the 1986 Code to other amounts deferred under any eligible deferred compensation plan.
"(4)
[The due date for the report on the study referred to in section 6064(d)(4) of
Amendment by section 6071(c) of
Effective Date of 1986 Amendment
"(1)
"(2)
"(3)
"(A)
"(B)
"(i) were deferred from taxable years beginning before January 1, 1987, or
"(ii) are deferred from taxable years beginning after December 31, 1986, pursuant to an agreement which—
"(I) was in writing on August 16, 1986,
"(II) on such date provides for a deferral for each taxable year covered by the agreement of a fixed amount or of an amount determined pursuant to a fixed formula.
Clause (ii) shall not apply to any taxable year ending after the date on which any modification to the amount or formula described in subclause (II) is effective. Amounts described in the first sentence shall be taken into account for applying section 457 to other amounts deferred under any deferred compensation plan. This subparagraph shall only apply to individuals who were covered under the plan and agreement on August 16, 1986.
"(4)
"(5)
"(A) to employees on August 16, 1986, of a nonprofit corporation organized under the laws of the State of Alabama maintaining a deferred compensation plan with respect to which the Internal Revenue Service issued a ruling dated March 17, 1976, that the plan would not affect the tax-exempt status of the corporation, or
"(B) to to [sic] individuals eligible to participate on August 16, 1986, in a deferred compensation plan with respect to which a letter dated November 6, 1975, submitted the original plan to the Internal Revenue Service, an amendment was submitted on November 19, 1975, and the Internal Revenue Service responded with a letter dated December 24, 1975,
but only with respect to deferrals under such plan."
Effective Date of 1984 Amendment
Amendment by
Effective Date of 1980 Amendment
Amendment by
Effective Date
Eligibility for Participation in Retirement Plans
Plan Amendments Not Required Until January 1, 1998
For provisions directing that if any amendments made by subtitle D [§§1401–1465] of title I of
Plan Amendments Not Required Until January 1, 1994
For provisions directing that if any amendments made by subtitle B [§§521–523] of title V of
Plan Amendments Not Required Until January 1, 1989
For provisions directing that if any amendments made by subtitle A or subtitle C of title XI [§§1100–1147 and 1171–1177] or title XVIII [§§1800–1899A] of
Transitional Rules
"(A)
"(i) any amount of compensation deferred under a plan of a State providing for a deferral of compensation (other than a plan described in section 457(e)(2) of the Internal Revenue Code of 1986 [formerly I.R.C. 1954]), and any income attributable to the amounts so deferred, shall be includible in gross income only for the taxable year in which such compensation or other income is paid or otherwise made available to the participant or other beneficiary, but
"(ii) the maximum amount of the compensation of any one individual which may be excluded from gross income by reason of clause (i) and by reason of section 457(a) of such Code during any such taxable year shall not exceed the lesser of—
"(I) $7,500, or
"(II) 331/3 percent of the participant's includible compensation.
"(B)
"(C)
"(D)
Deferred Compensation Plans for State Judges
"(A)
"(B)
"(i) such plan has been continuously in existence since December 31, 1978,
"(ii) under such plan, all judges eligible to benefit under the plan—
"(I) are required to participate, and
"(II) are required to contribute the same fixed percentage of their basic or regular rate of compensation as judge,
"(iii) under such plan, no judge has an option as to contributions or benefits the exercise of which would affect the amount of includible compensation,
"(iv) the retirement payments of a judge under the plan are a percentage of the compensation of judges of that State holding similar positions, and
"(v) the plan during any year does not pay benefits with respect to any participant which exceed the limitations of section 415(b) of the Internal Revenue Code of 1986 [formerly I.R.C. 1954]."
§457A. Nonqualified deferred compensation from certain tax indifferent parties
(a) In general
Any compensation which is deferred under a nonqualified deferred compensation plan of a nonqualified entity shall be includible in gross income when there is no substantial risk of forfeiture of the rights to such compensation.
(b) Nonqualified entity
For purposes of this section, the term "nonqualified entity" means—
(1) any foreign corporation unless substantially all of its income is—
(A) effectively connected with the conduct of a trade or business in the United States, or
(B) subject to a comprehensive foreign income tax, and
(2) any partnership unless substantially all of its income is allocated to persons other than—
(A) foreign persons with respect to whom such income is not subject to a comprehensive foreign income tax, and
(B) organizations which are exempt from tax under this title.
(c) Determinability of amounts of compensation
(1) In general
If the amount of any compensation is not determinable at the time that such compensation is otherwise includible in gross income under subsection (a)—
(A) such amount shall be so includible in gross income when determinable, and
(B) the tax imposed under this chapter for the taxable year in which such compensation is includible in gross income shall be increased by the sum of—
(i) the amount of interest determined under paragraph (2), and
(ii) an amount equal to 20 percent of the amount of such compensation.
(2) Interest
For purposes of paragraph (1)(B)(i), the interest determined under this paragraph for any taxable year is the amount of interest at the underpayment rate under section 6621 plus 1 percentage point on the underpayments that would have occurred had the deferred compensation been includible in gross income for the taxable year in which first deferred or, if later, the first taxable year in which such deferred compensation is not subject to a substantial risk of forfeiture.
(d) Other definitions and special rules
For purposes of this section—
(1) Substantial risk of forfeiture
(A) In general
The rights of a person to compensation shall be treated as subject to a substantial risk of forfeiture only if such person's rights to such compensation are conditioned upon the future performance of substantial services by any individual.
(B) Exception for compensation based on gain recognized on an investment asset
(i) In general
To the extent provided in regulations prescribed by the Secretary, if compensation is determined solely by reference to the amount of gain recognized on the disposition of an investment asset, such compensation shall be treated as subject to a substantial risk of forfeiture until the date of such disposition.
(ii) Investment asset
For purposes of clause (i), the term "investment asset" means any single asset (other than an investment fund or similar entity)—
(I) acquired directly by an investment fund or similar entity,
(II) with respect to which such entity does not (nor does any person related to such entity) participate in the active management of such asset (or if such asset is an interest in an entity, in the active management of the activities of such entity), and
(III) substantially all of any gain on the disposition of which (other than such deferred compensation) is allocated to investors in such entity.
(iii) Coordination with special rule
Paragraph (3)(B) shall not apply to any compensation to which clause (i) applies.
(2) Comprehensive foreign income tax
The term "comprehensive foreign income tax" means, with respect to any foreign person, the income tax of a foreign country if—
(A) such person is eligible for the benefits of a comprehensive income tax treaty between such foreign country and the United States, or
(B) such person demonstrates to the satisfaction of the Secretary that such foreign country has a comprehensive income tax.
(3) Nonqualified deferred compensation plan
(A) In general
The term "nonqualified deferred compensation plan" has the meaning given such term under section 409A(d), except that such term shall include any plan that provides a right to compensation based on the appreciation in value of a specified number of equity units of the service recipient.
(B) Exception
Compensation shall not be treated as deferred for purposes of this section if the service provider receives payment of such compensation not later than 12 months after the end of the taxable year of the service recipient during which the right to the payment of such compensation is no longer subject to a substantial risk of forfeiture.
(4) Exception for certain compensation with respect to effectively connected income
In the case of a foreign corporation with income which is taxable under section 882, this section shall not apply to compensation which, had such compensation been paid in cash on the date that such compensation ceased to be subject to a substantial risk of forfeiture, would have been deductible by such foreign corporation against such income.
(5) Application of rules
Rules similar to the rules of paragraphs (5) and (6) of section 409A(d) shall apply.
(e) Regulations
The Secretary shall prescribe such regulations as may be necessary or appropriate to carry out the purposes of this section, including regulations disregarding a substantial risk of forfeiture in cases where necessary to carry out the purposes of this section.
(Added
Editorial Notes
Amendments
2018—Subsec. (d)(4).
Statutory Notes and Related Subsidiaries
Effective Date
"(1)
"(2)
"(A) the last taxable year beginning before 2018, or
"(B) the taxable year in which there is no substantial risk of forfeiture of the rights to such compensation (determined in the same manner as determined for purposes of section 457A of the Internal Revenue Code of 1986, as added by this section).
"(3)
"(4)
"(5)
§458. Magazines, paperbacks, and records returned after the close of the taxable year
(a) Exclusion from gross income
A taxpayer who is on an accrual method of accounting may elect not to include in the gross income for the taxable year the income attributable to the qualified sale of any magazine, paperback, or record which is returned to the taxpayer before the close of the merchandise return period.
(b) Definitions and special rules
For purposes of this section—
(1) Magazine
The term "magazine" includes any other periodical.
(2) Paperback
The term "paperback" means any book which has a flexible outer cover and the pages of which are affixed directly to such outer cover. Such term does not include a magazine.
(3) Record
The term "record" means a disc, tape, or similar object on which musical, spoken, or other sounds are recorded.
(4) Separate application with respect to magazines, paperbacks, and records
If a taxpayer makes qualified sales of more than one category of merchandise in connection with the same trade or business, this section shall be applied as if the qualified sales of each such category were made in connection with a separate trade or business. For purposes of the preceding sentence, magazines, paperbacks, and records shall each be treated as a separate category of merchandise.
(5) Qualified sale
A sale of a magazine, paperback, or record is a qualified sale if—
(A) at the time of sale, the taxpayer has a legal obligation to adjust the sales price of such magazine, paperback, or record if it is not resold, and
(B) the sales price of such magazine, paperback, or record is adjusted by the taxpayer because of a failure to resell it.
(6) Amount excluded
The amount excluded under this section with respect to any qualified sale shall be the lesser of—
(A) the amount covered by the legal obligation described in paragraph (5)(A), or
(B) the amount of the adjustment agreed to by the taxpayer before the close of the merchandise return period.
(7) Merchandise return period
(A) Except as provided in subparagraph (B), the term "merchandise return period" means, with respect to any taxable year—
(i) in the case of magazines, the period of 2 months and 15 days first occurring after the close of taxable year, or
(ii) in the case of paperbacks and records, the period of 4 months and 15 days first occurring after the close of the taxable year.
(B) The taxpayer may select a shorter period than the applicable period set forth in subparagraph (A).
(C) Any change in the merchandise return period shall be treated as a change in the method of accounting.
(8) Certain evidence may be substituted for physical return of merchandise
Under regulations prescribed by the Secretary, the taxpayer may substitute, for the physical return of magazines, paperbacks, or records required by subsection (a), certification or other evidence that the magazine, paperback, or record has not been resold and will not be resold if such evidence—
(A) is in the possession of the taxpayer at the close of the merchandise return period, and
(B) is satisfactory to the Secretary.
(9) Repurchase by the taxpayer not treated as resale
A repurchase by the taxpayer shall be treated as an adjustment of the sales price rather than as a resale.
(c) Qualified sales to which section applies
(1) Election of benefits
This section shall apply to qualified sales of magazines, paperbacks, or records, as the case may be, if and only if the taxpayer makes an election under this section with respect to the trade or business in connection with which such sales are made. An election under this section may be made without the consent of the Secretary. The election shall be made in such manner as the Secretary may by regulations prescribe and shall be made for any taxable year not later than the time prescribed by law for filing the return for such taxable year (including extensions thereof).
(2) Scope of election
An election made under this section shall apply to all qualified sales of magazines, paperbacks, or records, as the case may be, made in connection with the trade or business with respect to which the taxpayer has made the election.
(3) Period to which election applies
An election under this section shall be effective for the taxable year for which it is made and for all subsequent taxable years, unless the taxpayer secures the consent of the Secretary to the revocation of such election.
(4) Treatment as method of accounting
Except to the extent inconsistent with the provisions of this section, for purposes of this subtitle, the computation of taxable income under an election made under this section shall be treated as a method of accounting.
(d) 5-year spread of transitional adjustments for magazines
In applying section 481(c) with respect to any election under this section which applies to magazines, the period for taking into account any decrease in taxable income resulting from the application of section 481(a)(2) shall be the taxable year for which the election is made and the 4 succeeding taxable years.
(e) Suspense account for paperbacks and records
(1) In general
In the case of any election under this section which applies to paperbacks or records, in lieu of applying section 481, the taxpayer shall establish a suspense account for the trade or business for the taxable year for which the election is made.
(2) Initial opening balance
The opening balance of the account described in paragraph (1) for the first taxable year to which the election applies shall be the largest dollar amount of returned merchandise which would have been taken into account under this section for any of the 3 immediately preceding taxable years if this section had applied to such preceding 3 taxable years. This paragraph and paragraph (3) shall be applied by taking into account only amounts attributable to the trade or business for which such account is established.
(3) Adjustments in suspense account
At the close of each taxable year the suspense account shall be—
(A) reduced the excess (if any) of—
(i) the opening balance of the suspense account for the taxable year, over
(ii) the amount excluded from gross income for the taxable year under subsection (a), or
(B) increased (but not in excess of the initial opening balance) by the excess (if any) of—
(i) the amount excluded from gross income for the taxable year under subsection (a), over
(ii) the opening balance of the account for the taxable year.
(4) Gross income adjustments
(A) Reductions excluded from gross income
In the case of any reduction under paragraph (3)(A) in the account for the taxable year, an amount equal to such reduction shall be excluded from gross income for such taxable year.
(B) Increases added to gross income
In the case of any increase under paragraph (3)(B) in the account for the taxable year, an amount equal to such increase shall be included in gross income for such taxable year.
If the initial opening balance exceeds the dollar amount of returned merchandise which would have been taken into account under subsection (a) for the taxable year preceding the first taxable year for which the election is effective if this section had applied to such preceding taxable year, then an amount equal to the amount of such excess shall be included in gross income for such first taxable year.
(5) Subchapter C transactions
The application of this subsection with respect to a taxpayer which is a party to any transaction with respect to which there is nonrecognition of gain or loss to any party to the transaction by reason of subchapter C shall be determined under regulations prescribed by the Secretary.
(Added
Editorial Notes
Amendments
2018—Subsec. (b)(9).
Subsec. (c)(1).
Statutory Notes and Related Subsidiaries
Effective Date
§460. Special rules for long-term contracts
(a) Requirement that percentage of completion method be used
In the case of any long-term contract, the taxable income from such contract shall be determined under the percentage of completion method (as modified by subsection (b)).
(b) Percentage of completion method
(1) Requirements of percentage of completion method
Except as provided in paragraph (3), in the case of any long-term contract with respect to which the percentage of completion method is used—
(A) the percentage of completion shall be determined by comparing costs allocated to the contract under subsection (c) and incurred before the close of the taxable year with the estimated total contract costs, and
(B) upon completion of the contract (or, with respect to any amount properly taken into account after completion of the contract, when such amount is so properly taken into account), the taxpayer shall pay (or shall be entitled to receive) interest computed under the look-back method of paragraph (2).
In the case of any long-term contract with respect to which the percentage of completion method is used, except for purposes of applying the look-back method of paragraph (2), any income under the contract (to the extent not previously includible in gross income) shall be included in gross income for the taxable year following the taxable year in which the contract was completed. For purposes of subtitle F (other than sections 6654 and 6655), any interest required to be paid by the taxpayer under subparagraph (B) shall be treated as an increase in the tax imposed by this chapter for the taxable year in which the contract is completed (or, in the case of interest payable with respect to any amount properly taken into account after completion of the contract, for the taxable year in which the amount is so properly taken into account).
(2) Look-back method
The interest computed under the look-back method of this paragraph shall be determined by—
(A) first, allocating income under the contract among taxable years before the year in which the contract is completed on the basis of the actual contract price and costs instead of the estimated contract price and costs,
(B) second, determining (solely for purposes of computing such interest) the overpayment or underpayment of tax for each taxable year referred to in subparagraph (A) which would result solely from the application of subparagraph (A), and
(C) then using the adjusted overpayment rate (as defined in paragraph (7)), compounded daily, on the overpayment or underpayment determined under subparagraph (B).
For purposes of the preceding sentence, any amount properly taken into account after completion of the contract shall be taken into account by discounting (using the Federal mid-term rate determined under section 1274(d) as of the time such amount was properly taken into account) such amount to its value as of the completion of the contract. The taxpayer may elect with respect to any contract to have the preceding sentence not apply to such contract.
(3) Special rules
(A) Simplified method of cost allocation
In the case of any long-term contract, the Secretary may prescribe a simplified procedure for allocation of costs to such contract in lieu of the method of allocation under subsection (c).
(B) Look-back method not to apply to certain contracts
Paragraph (1)(B) shall not apply to any contract—
(i) the gross price of which (as of the completion of the contract) does not exceed the lesser of—
(I) $1,000,000, or
(II) 1 percent of the average annual gross receipts of the taxpayer for the 3 taxable years preceding the taxable year in which the contract was completed, and
(ii) which is completed within 2 years of the contract commencement date.
For purposes of this subparagraph, rules similar to the rules of subsections (e)(2) and (f)(3) shall apply.
(4) Simplified look-back method for pass-thru entities
(A) In general
In the case of a pass-thru entity—
(i) the look-back method of paragraph (2) shall be applied at the entity level,
(ii) in determining overpayments and underpayments for purposes of applying paragraph (2)(B)—
(I) any increase in the income under the contract for any taxable year by reason of the allocation under paragraph (2)(A) shall be treated as giving rise to an underpayment determined by applying the highest rate for such year to such increase, and
(II) any decrease in such income for any taxable year by reason of such allocation shall be treated as giving rise to an overpayment determined by applying the highest rate for such year to such decrease, and
(iii) any interest required to be paid by the taxpayer under paragraph (2) shall be paid by such entity (and any interest entitled to be received by the taxpayer under paragraph (2) shall be paid to such entity).
(B) Exceptions
(i) Closely held pass-thru entities
This paragraph shall not apply to any closely held pass-thru entity.
(ii) Foreign contracts
This paragraph shall not apply to any contract unless substantially all of the income from such contract is from sources in the United States.
(C) Other definitions
For purposes of this paragraph—
(i) Highest rate
The term "highest rate" means—
(I) the highest rate of tax specified in section 11, or
(II) if at all times during the year involved more than 50 percent of the interests in the entity are held by individuals directly or through 1 or more other pass-thru entities, the highest rate of tax specified in section 1.
(ii) Pass-thru entity
The term "pass-thru entity" means any—
(I) partnership,
(II) S corporation, or
(III) trust.
(iii) Closely held pass-thru entity
The term "closely held pass-thru entity" means any pass-thru entity if, at any time during any taxable year for which there is income under the contract, 50 percent or more (by value) of the beneficial interests in such entity are held (directly or indirectly) by or for 5 or fewer persons. For purposes of the preceding sentence, rules similar to the constructive ownership rules of section 1563(e) shall apply.
(5) Election to use 10-percent method
(A) General rule
In the case of any long-term contract with respect to which an election under this paragraph is in effect, the 10-percent method shall apply in determining the taxable income from such contract.
(B) 10-percent method
For purposes of this paragraph—
(i) In general
The 10-percent method is the percentage of completion method, modified so that any item which would otherwise be taken into account in computing taxable income with respect to a contract for any taxable year before the 10-percent year is taken into account in the 10-percent year.
(ii) 10-percent year
The term "10-percent year" means the 1st taxable year as of the close of which at least 10 percent of the estimated total contract costs have been incurred.
(C) Election
An election under this paragraph shall apply to all long-term contracts of the taxpayer which are entered into during the taxable year in which the election is made or any subsequent taxable year.
(D) Coordination with other provisions
(i) Simplified method of cost allocation
This paragraph shall not apply to any taxpayer which uses a simplified procedure for allocation of costs under paragraph (3)(A).
(ii) Look-back method
The 10-percent method shall be taken into account for purposes of applying the look-back method of paragraph (2) to any taxpayer making an election under this paragraph.
(6) Election to have look-back method not apply in de minimis cases
(A) Amounts taken into account after completion of contract
Paragraph (1)(B) shall not apply with respect to any taxable year (beginning after the taxable year in which the contract is completed) if—
(i) the cumulative taxable income (or loss) under the contract as of the close of such taxable year, is within
(ii) 10 percent of the cumulative look-back taxable income (or loss) under the contract as of the close of the most recent taxable year to which paragraph (1)(B) applied (or would have applied but for subparagraph (B)).
(B) De minimis discrepancies
Paragraph (1)(B) shall not apply in any case to which it would otherwise apply if—
(i) the cumulative taxable income (or loss) under the contract as of the close of each prior contract year, is within
(ii) 10 percent of the cumulative look-back income (or loss) under the contract as of the close of such prior contract year.
(C) Definitions
For purposes of this paragraph—
(i) Contract year
The term "contract year" means any taxable year for which income is taken into account under the contract.
(ii) Look-back income or loss
The look-back income (or loss) is the amount which would be the taxable income (or loss) under the contract if the allocation method set forth in paragraph (2)(A) were used in determining taxable income.
(iii) Discounting not applicable
The amounts taken into account after the completion of the contract shall be determined without regard to any discounting under the 2nd sentence of paragraph (2).
(D) Contracts to which paragraph applies
This paragraph shall only apply if the taxpayer makes an election under this subparagraph. Unless revoked with the consent of the Secretary, such an election shall apply to all long-term contracts completed during the taxable year for which election is made or during any subsequent taxable year.
(7) Adjusted overpayment rate
(A) In general
The adjusted overpayment rate for any interest accrual period is the overpayment rate in effect under section 6621 for the calendar quarter in which such interest accrual period begins.
(B) Interest accrual period
For purposes of subparagraph (A), the term "interest accrual period" means the period—
(i) beginning on the day after the return due date for any taxable year of the taxpayer, and
(ii) ending on the return due date for the following taxable year.
For purposes of the preceding sentence, the term "return due date" means the date prescribed for filing the return of the tax imposed by this chapter (determined without regard to extensions).
(c) Allocation of costs to contract
(1) Direct and certain indirect costs
In the case of a long-term contract, all costs (including research and experimental costs) which directly benefit, or are incurred by reason of, the long-term contract activities of the taxpayer shall be allocated to such contract in the same manner as costs are allocated to extended period long-term contracts under section 451 and the regulations thereunder.
(2) Costs identified under cost-plus and certain Federal contracts
In the case of a cost-plus long-term contract or a Federal long-term contract, any cost not allocated to such contract under paragraph (1) shall be allocated to such contract if such cost is identified by the taxpayer (or a related person), pursuant to the contract or Federal, State, or local law or regulation, as being attributable to such contract.
(3) Allocation of production period interest to contract
(A) In general
Except as provided in subparagraphs (B) and (C), in the case of a long-term contract, interest costs shall be allocated to the contract in the same manner as interest costs are allocated to property produced by the taxpayer under section 263A(f).
(B) Production period
In applying section 263A(f) for purposes of subparagraph (A), the production period shall be the period—
(i) beginning on the later of—
(I) the contract commencement date, or
(II) in the case of a taxpayer who uses an accrual method with respect to long-term contracts, the date by which at least 5 percent of the total estimated costs (including design and planning costs) under the contract have been incurred, and
(ii) ending on the contract completion date.
(C) Application of de minimis rule
In applying section 263A(f) for purposes of subparagraph (A), paragraph (1)(B)(iii) of such section shall be applied on a contract-by-contract basis; except that, in the case of a taxpayer described in subparagraph (B)(i)(II) of this paragraph, paragraph (1)(B)(iii) of section 263A(f) shall be applied on a property-by-property basis.
(4) Certain costs not included
This subsection shall not apply to any—
(A) independent research and development expenses,
(B) expenses for unsuccessful bids and proposals, and
(C) marketing, selling, and advertising expenses.
(5) Independent research and development expenses
For purposes of paragraph (4), the term "independent research and development expenses" means any expenses incurred in the performance of research or development, except that such term shall not include—
(A) any expenses which are directly attributable to a long-term contract in existence when such expenses are incurred, or
(B) any expenses under an agreement to perform research or development.
(6) Special rule for allocation of bonus depreciation with respect to certain property
(A) In general
Solely for purposes of determining the percentage of completion under subsection (b)(1)(A), the cost of qualified property shall be taken into account as a cost allocated to the contract as if subsection (k) of section 168 had not been enacted.
(B) Qualified property
For purposes of this paragraph, the term "qualified property" means property described in section 168(k)(2) which—
(i) has a recovery period of 7 years or less, and
(ii) is placed in service before January 1, 2027 (January 1, 2028 in the case of property described in section 168(k)(2)(B)).
(d) Federal long-term contract
For purposes of this section—
(1) In general
The term "Federal long-term contract" means any long-term contract—
(A) to which the United States (or any agency or instrumentality thereof) is a party, or
(B) which is a subcontract under a contract described in subparagraph (A).
(2) Special rules for certain taxable entities
For purposes of paragraph (1), the rules of section 168(h)(2)(D) (relating to certain taxable entities not treated as instrumentalities) shall apply.
(e) Exception for certain construction contracts
(1) In general
Subsections (a), (b), and (c)(1) and (2) shall not apply to—
(A) any home construction contract, or
(B) any other construction contract entered into by a taxpayer (other than a tax shelter prohibited from using the cash receipts and disbursements method of accounting under section 448(a)(3))—
(i) who estimates (at the time such contract is entered into) that such contract will be completed within the 2-year period beginning on the contract commencement date of such contract, and
(ii) who meets the gross receipts test of section 448(c) for the taxable year in which such contract is entered into.
In the case of a home construction contract with respect to which the requirements of clauses (i) and (ii) of subparagraph (B) are not met, section 263A shall apply notwithstanding subsection (c)(4) thereof.
(2) Rules related to gross receipts test
(A) Application of gross receipts test to individuals, etc.
For purposes of paragraph (1)(B)(ii), in the case of any taxpayer which is not a corporation or a partnership, the gross receipts test of section 448(c) shall be applied in the same manner as if each trade or business of such taxpayer were a corporation or partnership.
(B) Coordination with section 481
Any change in method of accounting made pursuant to paragraph (1)(B)(ii) shall be treated as initiated by the taxpayer and made with the consent of the Secretary. Such change shall be effected on a cut-off basis for all similarly classified contracts entered into on or after the year of change.
(3) Construction contract
For purposes of this subsection, the term "construction contract" means any contract for the building, construction, reconstruction, or rehabilitation of, or the installation of any integral component to, or improvements of, real property.
(4) Special rule for residential construction contracts which are not home construction contracts
In the case of any residential construction contract which is not a home construction contract, subsection (a) (as in effect on the day before the date of the enactment of the Revenue Reconciliation Act of 1989) shall apply except that such subsection shall be applied—
(A) by substituting "70 percent" for "90 percent" each place it appears, and
(B) by substituting "30 percent" for "10 percent".
(5) Definitions relating to residential construction contracts
For purposes of this subsection—
(A) Home construction contract
The term "home construction contract" means any construction contract if 80 percent or more of the estimated total contract costs (as of the close of the taxable year in which the contract was entered into) are reasonably expected to be attributable to activities referred to in paragraph (4) with respect to—
(i) dwelling units (as defined in section 168(e)(2)(A)(ii)) contained in buildings containing 4 or fewer dwelling units (as so defined), and
(ii) improvements to real property directly related to such dwelling units and located on the site of such dwelling units.
For purposes of clause (i), each townhouse or rowhouse shall be treated as a separate building.
(B) Residential construction contract
The term "residential construction contract" means any contract which would be described in subparagraph (A) if clause (i) of such subparagraph reads as follows:
"(i) dwelling units (as defined in section 168(e)(2)(A)(ii)), and".
(f) Long-term contract
For purposes of this section—
(1) In general
The term "long-term contract" means any contract for the manufacture, building, installation, or construction of property if such contract is not completed within the taxable year in which such contract is entered into.
(2) Special rule for manufacturing contracts
A contract for the manufacture of property shall not be treated as a long-term contract unless such contract involves the manufacture of—
(A) any unique item of a type which is not normally included in the finished goods inventory of the taxpayer, or
(B) any item which normally requires more than 12 calendar months to complete (without regard to the period of the contract).
(3) Aggregation, etc.
For purposes of this subsection, under regulations prescribed by the Secretary—
(A) 2 or more contracts which are interdependent (by reason of pricing or otherwise) may be treated as 1 contract, and
(B) a contract which is properly treated as an aggregation of separate contracts may be so treated.
(g) Contract commencement date
For purposes of this section, the term "contract commencement date" means, with respect to any contract, the first date on which any costs (other than bidding expenses or expenses incurred in connection with negotiating the contract) allocable to such contract are incurred.
(h) Regulations
The Secretary shall prescribe such regulations as may be necessary or appropriate to carry out the purposes of this section, including regulations to prevent the use of related parties, pass-thru entities, intermediaries, options, or other similar arrangements to avoid the application of this section.
(Added
Editorial Notes
References in Text
The date of the enactment of the Revenue Reconciliation Act of 1989, referred to in subsec. (e)(4), is the date of enactment of title VII of
Amendments
2018—Subsec. (b)(2)(A).
2017—Subsec. (c)(6)(B)(ii).
Subsec. (e)(1)(B).
Subsec. (e)(1)(B)(ii).
Subsec. (e)(2).
Subsec. (e)(3) to (6).
2015—Subsec. (c)(6)(B)(ii).
Subsec. (c)(6)(B)(ii).
2014—Subsec. (c)(6)(B)(ii).
2013—Subsec. (c)(6)(B)(ii).
2010—Subsec. (c)(6).
1997—Subsec. (b)(2)(C).
Subsec. (b)(6).
Subsec. (b)(7).
1996—Subsec. (b)(1).
Subsec. (e)(6)(B).
1990—Subsec. (e)(6)(A)(i).
1989—Subsec. (a).
"(1)
"(A) 90 percent of the items with respect to such contract shall be taken into account under the percentage of completion method (as modified by subsection (b)), and
"(B) 10 percent of the items with respect to such contract shall be taken into account under the taxpayer's normal method of accounting.
"(2) 90
Subsec. (a)(2).
Subsec. (b)(1).
Subsec. (b)(2).
Subsec. (b)(2)(B).
Subsec. (b)(3).
Subsec. (b)(3)(B).
Subsec. (b)(4).
Subsec. (b)(4)(A)(i).
Subsec. (b)(4)(A)(ii).
Subsec. (b)(4)(A)(ii)(I).
Subsec. (b)(4)(A)(iii).
Subsec. (b)(5).
Subsec. (e)(2)(C).
Subsec. (e)(5).
Subsec. (e)(6)(A).
Subsec. (e)(6)(A)(i).
1988—Subsec. (a)(1)(A).
Subsec. (a)(1)(B).
Subsec. (a)(2).
Subsec. (b)(2).
Subsec. (b)(2)(B).
Subsec. (b)(3).
Subsec. (b)(3)(B).
Subsec. (b)(3)(C).
Subsec. (b)(4).
Subsec. (b)(5).
Subsec. (e)(1).
"(A) who estimates (at the time such contract is entered into) that such contract will be completed within the 2-year period beginning on the contract commencement date of such contract, and
"(B) whose average annual gross receipts for the 3 taxable years preceding the taxable year in which such contract is entered into do not exceed $10,000,000."
Subsec. (e)(5).
Subsec. (e)(6).
Subsec. (h).
1987—Subsec. (a).
Statutory Notes and Related Subsidiaries
Effective Date of 2017 Amendment
Amendment by section 13102(d) of
Amendment by section 13201 of
Effective Date of 2015 Amendment
Amendment by section 143(a)(2) of
Amendment by section 143(b)(6)(I) of
Effective Date of 2014 Amendment
Amendment by
Effective Date of 2013 Amendment
Amendment by
Effective Date of 2010 Amendment
Effective Date of 1997 Amendment
"(1)
"(2)
Effective Date of 1996 Amendment
Amendment by section 1702(h)(15) of
Effective Date of 1990 Amendment
Amendment by
Effective Date of 1989 Amendment
"(1)
"(2)
"(3)
Amendment by sections 7811(e) and 7815(e)(1) of
Effective Date of 1988 Amendment
Amendment by section 1008(c)(1), (2), (4) of
"(1)
"(A)
"(B)
"(C)
"(2)
Effective Date of 1987 Amendment
"(1)
"(2)
"(A)
"(B)
"(i) such ships will not be constructed (directly or indirectly) for the Federal Government, and
"(ii) the taxpayer reasonably expects to complete such contract within 5 years of the contract commencement date (as defined in section 460(g) of the Internal Revenue Code of 1986)."
Effective Date of 1986 Amendment
"(1)
"(2)
"(A)
"(i) any independent research and development expenses taken into account in determining the total contract price shall not be severable from the contract, and
"(ii) any independent research and development expenses shall not be treated as amounts chargeable to capital account.
"(B)
Regulations
Savings Provision
For provisions that nothing in amendment by
Method of Accounting for Naval Shipbuilders
"(a)
"(b)
"(1) the amount of tax which would have been imposed during such period if this section had not been enacted, over
"(2) the amount of tax so imposed during such period.
"(c)
"(1)
"(2)
"(3)
"(d)
"(e)
Amortization of Past Service Pension Costs
Allocable costs (within the meaning of subsec. (c) of this section) with respect to any property to include contributions paid to or under a pension or annuity plan whether or not such contributions represent past service costs, see section 10204 of
Subpart C—Taxable Year for Which Deductions Taken
Editorial Notes
Amendments
2004—
1987—
1986—
1984—
1978—
1976—
1975—
1955—Act June 15, 1955, ch. 143, §2(3),
§461. General rule for taxable year of deduction
(a) General rule
The amount of any deduction or credit allowed by this subtitle shall be taken for the taxable year which is the proper taxable year under the method of accounting used in computing taxable income.
(b) Special rule in case of death
In the case of the death of a taxpayer whose taxable income is computed under an accrual method of accounting, any amount accrued as a deduction or credit only by reason of the death of the taxpayer shall not be allowed in computing taxable income for the period in which falls the date of the taxpayer's death.
(c) Accrual of real property taxes
(1) In general
If the taxable income is computed under an accrual method of accounting, then, at the election of the taxpayer, any real property tax which is related to a definite period of time shall be accrued ratably over that period.
(2) When election may be made
(A) Without consent
A taxpayer may, without the consent of the Secretary, make an election under this subsection for his first taxable year in which he incurs real property taxes. Such an election shall be made not later than the time prescribed by law for filing the return for such year (including extensions thereof).
(B) With consent
A taxpayer may, with the consent of the Secretary, make an election under this subsection at any time.
(d) Limitation on acceleration of accrual of taxes
(1) General rule
In the case of a taxpayer whose taxable income is computed under an accrual method of accounting, to the extent that the time for accruing taxes is earlier than it would be but for any action of any taxing jurisdiction taken after December 31, 1960, then, under regulations prescribed by the Secretary, such taxes shall be treated as accruing at the time they would have accrued but for such action by such taxing jurisdiction.
(2) Limitation
Under regulations prescribed by the Secretary, paragraph (1) shall be inapplicable to any item of tax to the extent that its application would (but for this paragraph) prevent all persons (including successors in interest) from ever taking such item into account.
(e) Dividends or interest paid on certain deposits or withdrawable accounts
Except as provided in regulations prescribed by the Secretary, amounts paid to, or credited to the accounts of, depositors or holders of accounts as dividends or interest on their deposits or withdrawable accounts (if such amounts paid or credited are withdrawable on demand subject only to customary notice to withdraw) by a mutual savings bank not having capital stock represented by shares, a domestic building and loan association, or a cooperative bank shall not be allowed as a deduction for the taxable year to the extent such amounts are paid or credited for periods representing more than 12 months. Any such amount not allowed as a deduction as the result of the application of the preceding sentence shall be allowed as a deduction for such other taxable year as the Secretary determines to be consistent with the preceding sentence.
(f) Contested liabilities
If—
(1) the taxpayer contests an asserted liability,
(2) the taxpayer transfers money or other property to provide for the satisfaction of the asserted liability,
(3) the contest with respect to the asserted liability exists after the time of the transfer, and
(4) but for the fact that the asserted liability is contested, a deduction would be allowed for the taxable year of the transfer (or for an earlier taxable year) determined after application of subsection (h),
then the deduction shall be allowed for the taxable year of the transfer. This subsection shall not apply in respect of the deduction for income, war profits, and excess profits taxes imposed by the authority of any foreign country or possession of the United States.
(g) Prepaid interest
(1) In general
If the taxable income of the taxpayer is computed under the cash receipts and disbursements method of accounting, interest paid by the taxpayer which, under regulations prescribed by the Secretary, is properly allocable to any period—
(A) with respect to which the interest represents a charge for the use or forbearance of money, and
(B) which is after the close of the taxable year in which paid,
shall be charged to capital account and shall be treated as paid in the period to which so allocable.
(2) Exception
This subsection shall not apply to points paid in respect of any indebtedness incurred in connection with the purchase or improvement of, and secured by, the principal residence of the taxpayer to the extent that, under regulations prescribed by the Secretary, such payment of points is an established business practice in the area in which such indebtedness is incurred, and the amount of such payment does not exceed the amount generally charged in such area.
(h) Certain liabilities not incurred before economic performance
(1) In general
For purposes of this title, in determining whether an amount has been incurred with respect to any item during any taxable year, the all events test shall not be treated as met any earlier than when economic performance with respect to such item occurs.
(2) Time when economic performance occurs
Except as provided in regulations prescribed by the Secretary, the time when economic performance occurs shall be determined under the following principles:
(A) Services and property provided to the taxpayer
If the liability of the taxpayer arises out of—
(i) the providing of services to the taxpayer by another person, economic performance occurs as such person provides such services,
(ii) the providing of property to the taxpayer by another person, economic performance occurs as the person provides such property, or
(iii) the use of property by the taxpayer, economic performance occurs as the taxpayer uses such property.
(B) Services and property provided by the taxpayer
If the liability of the taxpayer requires the taxpayer to provide property or services, economic performance occurs as the taxpayer provides such property or services.
(C) Workers compensation and tort liabilities of the taxpayer
If the liability of the taxpayer requires a payment to another person and—
(i) arises under any workers compensation act, or
(ii) arises out of any tort,
economic performance occurs as the payments to such person are made. Subparagraphs (A) and (B) shall not apply to any liability described in the preceding sentence.
(D) Other items
In the case of any other liability of the taxpayer, economic performance occurs at the time determined under regulations prescribed by the Secretary.
(3) Exception for certain recurring items
(A) In general
Notwithstanding paragraph (1) an item shall be treated as incurred during any taxable year if—
(i) the all events test with respect to such item is met during such taxable year (determined without regard to paragraph (1)),
(ii) economic performance with respect to such item occurs within the shorter of—
(I) a reasonable period after the close of such taxable year, or
(II) 8½ months after the close of such taxable year,
(iii) such item is recurring in nature and the taxpayer consistently treats items of such kind as incurred in the taxable year in which the requirements of clause (i) are met, and
(iv) either—
(I) such item is not a material item, or
(II) the accrual of such item in the taxable year in which the requirements of clause (i) are met results in a more proper match against income than accruing such item in the taxable year in which economic performance occurs.
(B) Financial statements considered under subparagraph (A)(iv)
In making a determination under subparagraph (A)(iv), the treatment of such item on financial statements shall be taken into account.
(C) Paragraph not to apply to workers compensation and tort liabilities
This paragraph shall not apply to any item described in subparagraph (C) of paragraph (2).
(4) All events test
For purposes of this subsection, the all events test is met with respect to any item if all events have occurred which determine the fact of liability and the amount of such liability can be determined with reasonable accuracy.
(5) Subsection not to apply to certain items
This subsection shall not apply to any item for which a deduction is allowable under a provision of this title which specifically provides for a deduction for a reserve for estimated expenses.
(i) Special rules for tax shelters
(1) Recurring item exception not to apply
In the case of a tax shelter, economic performance shall be determined without regard to paragraph (3) of subsection (h).
(2) Special rule for spudding of oil or gas wells
(A) In general
In the case of a tax shelter, economic performance with respect to amounts paid during the taxable year for drilling an oil or gas well shall be treated as having occurred within a taxable year if drilling of the well commences before the close of the 90th day after the close of the taxable year.
(B) Deduction limited to cash basis
(i) Tax shelter partnerships
In the case of a tax shelter which is a partnership, in applying section 704(d) to a deduction or loss for any taxable year attributable to an item which is deductible by reason of subparagraph (A), the term "cash basis" shall be substituted for the term "adjusted basis".
(ii) Other tax shelters
Under regulations prescribed by the Secretary, in the case of a tax shelter other than a partnership, the aggregate amount of the deductions allowable by reason of subparagraph (A) for any taxable year shall be limited in a manner similar to the limitation under clause (i).
(C) Cash basis defined
For purposes of subparagraph (B), a partner's cash basis in a partnership shall be equal to the adjusted basis of such partner's interest in the partnership, determined without regard to—
(i) any liability of the partnership, and
(ii) any amount borrowed by the partner with respect to such partnership which—
(I) was arranged by the partnership or by any person who participated in the organization, sale, or management of the partnership (or any person related to such person within the meaning of section 465(b)(3)(C)), or
(II) was secured by any asset of the partnership.
(3) Tax shelter defined
For purposes of this subsection, the term "tax shelter" means—
(A) any enterprise (other than a C corporation) if at any time interests in such enterprise have been offered for sale in any offering required to be registered with any Federal or State agency having the authority to regulate the offering of securities for sale,
(B) any syndicate (within the meaning of section 1256(e)(3)(B)), and
(C) any tax shelter (as defined in section 6662(d)(2)(C)(ii)).
(4) Special rules for farming
In the case of the trade or business of farming (as defined in section 464(e)), in determining whether an entity is a tax shelter, the definition of farming syndicate in subsection (k) shall be substituted for subparagraphs (A) and (B) of paragraph (3).
(5) Economic performance
For purposes of this subsection, the term "economic performance" has the meaning given such term by subsection (h).
(j) Limitation on excess farm losses of certain taxpayers
(1) Limitation
If a taxpayer other than a C corporation receives any applicable subsidy for any taxable year, any excess farm loss of the taxpayer for the taxable year shall not be allowed.
(2) Disallowed loss carried to next taxable year
Any loss which is disallowed under paragraph (1) shall be treated as a deduction of the taxpayer attributable to farming businesses in the next taxable year.
(3) Applicable subsidy
For purposes of this subsection, the term "applicable subsidy" means—
(A) any direct or counter-cyclical payment under title I of the Food, Conservation, and Energy Act of 2008, or any payment elected to be received in lieu of any such payment, or
(B) any Commodity Credit Corporation loan.
(4) Excess farm loss
For purposes of this subsection—
(A) In general
The term "excess farm loss" means the excess of—
(i) the aggregate deductions of the taxpayer for the taxable year which are attributable to farming businesses of such taxpayer (determined without regard to whether or not such deductions are disallowed for such taxable year under paragraph (1)), over
(ii) the sum of—
(I) the aggregate gross income or gain of such taxpayer for the taxable year which is attributable to such farming businesses, plus
(II) the threshold amount for the taxable year.
(B) Threshold amount
(i) In general
The term "threshold amount" means, with respect to any taxable year, the greater of—
(I) $300,000 ($150,000 in the case of married individuals filing separately), or
(II) the excess (if any) of the aggregate amounts described in subparagraph (A)(ii)(I) for the 5-consecutive taxable year period preceding the taxable year over the aggregate amounts described in subparagraph (A)(i) for such period.
(ii) Special rules for determining aggregate amounts
For purposes of clause (i)(II)—
(I) notwithstanding the disregard in subparagraph (A)(i) of any disallowance under paragraph (1), in the case of any loss which is carried forward under paragraph (2) from any taxable year, such loss (or any portion thereof) shall be taken into account for the first taxable year in which a deduction for such loss (or portion) is not disallowed by reason of this subsection, and
(II) the Secretary shall prescribe rules for the computation of the aggregate amounts described in such clause in cases where the filing status of the taxpayer is not the same for the taxable year and each of the taxable years in the period described in such clause.
(C) Farming business
(i) In general
The term "farming business" has the meaning given such term in section 263A(e)(4).
(ii) Certain trades and businesses included
If, without regard to this clause, a taxpayer is engaged in a farming business with respect to any agricultural or horticultural commodity—
(I) the term "farming business" shall include any trade or business of the taxpayer of the processing of such commodity (without regard to whether the processing is incidental to the growing, raising, or harvesting of such commodity), and
(II) if the taxpayer is a member of a cooperative to which subchapter T applies, any trade or business of the cooperative described in subclause (I) shall be treated as the trade or business of the taxpayer.
(D) Certain losses disregarded
For purposes of subparagraph (A)(i), there shall not be taken into account any deduction for any loss arising by reason of fire, storm, or other casualty, or by reason of disease or drought, involving any farming business.
(5) Application of subsection in case of partnerships and S corporations
In the case of a partnership or S corporation—
(A) this subsection shall be applied at the partner or shareholder level, and
(B) each partner's or shareholder's proportionate share of the items of income, gain, or deduction of the partnership or S corporation for any taxable year from farming businesses attributable to the partnership or S corporation, and of any applicable subsidies received by the partnership or S corporation during the taxable year, shall be taken into account by the partner or shareholder in applying this subsection to the taxable year of such partner or shareholder with or within which the taxable year of the partnership or S corporation ends.
The Secretary may provide rules for the application of this paragraph to any other pass-thru entity to the extent necessary to carry out the provisions of this subsection.
(6) Additional reporting
The Secretary may prescribe such additional reporting requirements as the Secretary determines appropriate to carry out the purposes of this subsection.
(7) Coordination with section 469
This subsection shall be applied before the application of section 469.
(k) Farming syndicate defined
(1) In general
For purposes of subsection (i)(4), the term "farming syndicate" means—
(A) a partnership or any other enterprise other than a corporation which is not an S corporation engaged in the trade or business of farming, if at any time interests in such partnership or enterprise have been offered for sale in any offering required to be registered with any Federal or State agency having authority to regulate the offering of securities for sale, or
(B) a partnership or any other enterprise other than a corporation which is not an S corporation engaged in the trade or business of farming, if more than 35 percent of the losses during any period are allocable to limited partners or limited entrepreneurs.
(2) Holdings attributable to active management
For purposes of paragraph (1)(B), the following shall be treated as an interest which is not held by a limited partner or a limited entrepreneur:
(A) in the case of any individual who has actively participated (for a period of not less than 5 years) in the management of any trade or business of farming, any interest in a partnership or other enterprise which is attributable to such active participation,
(B) in the case of any individual whose principal residence is on a farm, any partnership or other enterprise engaged in the trade or business of farming such farm,
(C) in the case of any individual who is actively participating in the management of any trade or business of farming or who is an individual who is described in subparagraph (A) or (B), any participation in the further processing of livestock which was raised in such trade or business (or in the trade or business referred to in subparagraph (A) or (B)),
(D) in the case of an individual whose principal business activity involves active participation in the management of a trade or business of farming, any interest in any other trade or business of farming, and,
(E) any interest held by a member of the family (or a spouse of any such member) of a grandparent of an individual described in subparagraph (A), (B), (C), or (D) if the interest in the partnership or the enterprise is attributable to the active participation of the individual described in subparagraph (A), (B), (C), or (D).
For purposes of subparagraph (A), where one farm is substituted for or added to another farm, both farms shall be treated as one farm. For purposes of subparagraph (E), the term "family" has the meaning given to such term by section 267(c)(4).
(3) Farming
For purposes of this subsection, the term "farming" has the meaning given to such term by section 464(e).
(4) Limited entrepreneur
For purposes of this subsection, the term "limited entrepreneur" means a person who—
(A) has an interest in an enterprise other than as a limited partner, and
(B) does not actively participate in the management of such enterprise.
(l) Limitation on excess business losses of noncorporate taxpayers
(1) Limitation
In the case of a taxpayer other than a corporation—
(A) for any taxable year beginning after December 31, 2017, and before January 1, 2026, subsection (j) (relating to limitation on excess farm losses of certain taxpayers) shall not apply, and
(B) for any taxable year beginning after December 31, 2020, and before January 1, 2026, any excess business loss of the taxpayer for the taxable year shall not be allowed.
(2) Disallowed loss carryover
Any loss which is disallowed under paragraph (1) shall be treated as a net operating loss for the taxable year for purposes of determining any net operating loss carryover under section 172(b) for subsequent taxable years.
(3) Excess business loss
For purposes of this subsection—
(A) In general
The term "excess business loss" means the excess (if any) of—
(i) the aggregate deductions of the taxpayer for the taxable year which are attributable to trades or businesses of such taxpayer (determined without regard to whether or not such deductions are disallowed for such taxable year under paragraph (1) and without regard to any deduction allowable under section 172 or 199A), over
(ii) the sum of—
(I) the aggregate gross income or gain of such taxpayer for the taxable year which is attributable to such trades or businesses, plus
(II) $250,000 (200 percent of such amount in the case of a joint return).
Such excess shall be determined without regard to any deductions, gross income, or gains attributable to any trade or business of performing services as an employee.
(B) Treatment of capital gains and losses
(i) Losses
Deductions for losses from sales or exchanges of capital assets shall not be taken into account under subparagraph (A)(i).
(ii) Gains
The amount of gains from sales or exchanges of capital assets taken into account under subparagraph (A)(ii) shall not exceed the lesser of—
(I) the capital gain net income determined by taking into account only gains and losses attributable to a trade or business, or
(II) the capital gain net income.
(C) Adjustment for inflation
In the case of any taxable year beginning after December 31, 2018, the $250,000 amount in subparagraph (A)(ii)(II) shall be increased by an amount equal to—
(i) such dollar amount, multiplied by
(ii) the cost-of-living adjustment determined under section 1(f)(3) for the calendar year in which the taxable year begins, determined by substituting "2017" for "2016" in subparagraph (A)(ii) thereof.
If any amount as increased under the preceding sentence is not a multiple of $1,000, such amount shall be rounded to the nearest multiple of $1,000.
(4) Application of subsection in case of partnerships and S corporations
In the case of a partnership or S corporation—
(A) this subsection shall be applied at the partner or shareholder level, and
(B) each partner's or shareholder's allocable share of the items of income, gain, deduction, or loss of the partnership or S corporation for any taxable year from trades or businesses attributable to the partnership or S corporation shall be taken into account by the partner or shareholder in applying this subsection to the taxable year of such partner or shareholder with or within which the taxable year of the partnership or S corporation ends.
For purposes of this paragraph, in the case of an S corporation, an allocable share shall be the shareholder's pro rata share of an item.
(5) Additional reporting
The Secretary shall prescribe such additional reporting requirements as the Secretary determines necessary to carry out the purposes of this subsection.
(6) Coordination with section 469
This subsection shall be applied after the application of section 469.
(Aug. 16, 1954, ch. 736,
Amendment of Subsection (l)
See 2021 Amendment note below.
Inflation Adjusted Items for Certain Years
For inflation adjustment of certain items in this section, see Revenue Procedures listed in a table under
Editorial Notes
References in Text
The Food, Conservation, and Energy Act of 2008, referred to in subsec. (j)(3)(A), is
Codification
Subsec. (c) of
Amendments
2021—Subsec. (l)(1).
2020—Subsec. (l)(1).
"(A) subsection (j) (relating to limitation on excess farm losses of certain taxpayers) shall not apply, and
"(B) any excess business loss of the taxpayer for the taxable year shall not be allowed."
Subsec. (l)(2).
Subsec. (l)(3)(A).
Subsec. (l)(3)(A)(i).
Subsec. (l)(3)(B), (C).
2018—Subsec. (i)(4).
Subsecs. (j), (k).
2017—Subsec. (l).
2014—Subsec. (i)(4).
Subsec. (j).
Subsec. (j)(1).
Subsec. (j)(3), (4).
2008—Subsec. (j).
2005—Subsec. (i)(3)(C).
1996—Subsec. (i)(3)(C).
1990—Subsec. (i)(3)(C).
1989—Subsec. (i)(3)(C).
1988—Subsec. (h)(5)(B), (C).
Subsec. (i)(2).
1987—Subsec. (h)(5).
"(A) Section 463 (relating to vacation pay).
"(B) Any other provisions of this title which specifically provides for a deduction for a reserve for estimated expenses."
1986—Subsec. (h)(5)(A).
Subsec. (h)(5)(B).
Subsec. (h)(5)(C).
Subsec. (h)(5)(D).
Subsec. (i).
Subsec. (i)(1).
Subsec. (i)(2).
Subsec. (i)(4).
"(A) any tax shelter described in paragraph (3)(C) shall be treated as a farming syndicate for purposes of section 464; except that this subparagraph shall not apply for purposes of determining the income of an individual meeting the requirements of section 464(c)(2),
"(B) section 464 shall be applied before this subsection, and
"(C) in determining whether an entity is a tax shelter, the definition of farming syndicate in section 464(c) shall be substituted for subparagraphs (A) and (B) of paragraph (3)."
Subsec. (i)(4)(A).
1984—Subsec. (f)(4).
Subsecs. (h), (i).
1976—Subsec. (c)(2), (3).
Subsecs. (d), (e).
Subsec. (g).
1964—Subsec. (f).
1962—Subsec. (e).
1960—Subsec. (d).
Statutory Notes and Related Subsidiaries
Effective Date of 2021 Amendment
Effective Date of 2020 Amendment
"(1)
"(2)
Effective Date of 2017 Amendment
Effective Date of 2014 Amendment
Amendment by
Effective Date of 2008 Amendment
Amendment of this section and repeal of
[
Effective Date of 1989 Amendment
Effective Date of 1988 Amendment
Amendment by
Effective Date of 1987 Amendment
Amendment by
Effective Date of 1986 Amendment
Amendment by section 801(b) of
Amendment by section 805(c)(5) of
Amendment by section 823 of
Amendment by section 1807(a)(1), (2) of
Effective Date of 1984 Amendment
"(g)
"(1)
"(A) in the case of amounts to which section 461(h) of such Code (as added by such amendments) applies, the date of the enactment of this Act [July 18, 1984], and
"(B) in the case of amounts to which section 461(i) of such Code (as so added) applies, after March 31, 1984.
"(2)
"(A)
"(i) are incurred on or before the date of the enactment of this Act [July 18, 1984] (determined without regard to such amendments), and
"(ii) are incurred after the date of the enactment of this Act (determined with regard to such amendments).
The Secretary of the Treasury or his delegate may by regulations provide that (in lieu of an election under the preceding sentence) a taxpayer may (subject to such conditions as such regulations may provide) elect to have subsection (h) of section 461 of such Code apply to the taxpayer's entire taxable year in which occurs July 19, 1984.
"(B)
"(i) initiated by the taxpayer,
"(ii) made with the consent of the Secretary of the Treasury, and
"(iii) with respect to which section 481 of such Code shall be applied by substituting a 3-year adjustment period for a 10-year adjustment period.
"(3)
"(4)
"(5)
"(6)
"(h)
"(1)
"(A) for land disturbed before the date of the enactment of this Act [July 18, 1984], or
"(B) to which paragraph (2) applies,
shall be treated as having been incurred when the land was disturbed.
"(2)
"(A)
"(B)
"(i) to any extension of any contract beyond the period such contract was in effect on March 1, 1984, or
"(ii) to any renegotiation of, or other change in, the terms and conditions of such contract in effect on March 1, 1984.
"(i)
"(1)
"(A) with respect to whom a deduction was allowable (other than under section 463 of the Internal Revenue Code of 1986) for vested accrued vacation pay for the last taxable year ending before the date of the enactment of this Act [July 18, 1984], and
"(B) who elects the application of section 463 of such Code for the first taxable year ending after the date of the enactment of this Act,
then, for purposes of section 463(b) of such Code, the opening balance of the taxpayer with respect to any vested accrued vacation pay shall be determined under section 463(b)(1) of such Code.
"(2)
Effective Date of 1976 Amendment
Amendment by section 1901(a)(69) of
"(1)
"(2)
Effective Date of 1964 Amendment
"(1) the amendment made by subsection (a)(1) [amending this section] shall apply to taxable years beginning after December 31, 1953, and ending after August 16, 1954, and
"(2) the amendment made by subsection (a)(2) [amending section 43 of the Internal Revenue Code of 1939] shall apply to taxable years to which the Internal Revenue Code of 1939 applies."
Effective Date of 1962 Amendment
Effective Date of 1960 Amendment
Plan Amendments Not Required Until January 1, 1989
For provisions directing that if any amendments made by subtitle A or subtitle C of title XI [§§1101–1147 and 1171–1177] or title XVIII [§§1800–1899A] of
Transitional Rule for Certain Amounts
"(A) such payment was made before November 23, 1985, for indemnification against a tort liability relating to personal injury or death caused by inhalation or ingestion of dust from asbestos-containing insulation products,
"(B) such insurance company is unrelated to taxpayer,
"(C) such payment is not refundable, and
"(D) the taxpayer is not engaged in the mining of asbestos nor is any member of any affiliated group which includes the taxpayer so engaged."
Transition Rule
"(1) is a partnership which was founded in 1936,
"(2) has over 1,000 professional employees,
"(3) used a long-term contract method of accounting for a substantial part of its income from the performance of architectural and engineering services, and
"(4) is headquartered in Chicago, Illinois."
Election as to Transfers in Taxable Years Beginning Before Jan. 1, 1964
"(1) The amendments made by subsection (a) [amending this section and section 43 of the Internal Revenue Code of 1939] shall not apply to any transfer of money or other property described in subsection (a) made in a taxable year beginning before January 1, 1964, if the taxpayer elects, in the manner provided by regulations prescribed by the Secretary of the Treasury or his delegate, to have this paragraph apply. Such an election—
"(A) must be made within one year after the date of the enactment of this Act [Feb. 26, 1964],
"(B) may not be revoked after the expiration of such one-year period, and
"(C) shall apply to all transfers described in the first sentence of this paragraph (other than transfers described in paragraph (2)).
In the case of any transfer to which this paragraph applies, the deduction shall be allowed only for the taxable year in which the contest with respect to such transfer is settled.
"(2) Paragraph (1) shall not apply to any transfer if the assessment of any deficiency which would result from the application of the election in respect of such transfer is, on the date of the election under paragraph (1), prevented by the operation of any law or rule of law.
"(3) If the taxpayer makes an election under paragraph (1), and if, on the date of such election, the assessment of any deficiency which results from the application of the election in respect of any transfer is not prevented by the operation of any law or rule of law, the period within which assessment of such deficiency may be made shall not expire earlier than 2 years after the date of the enactment of this Act [Feb. 26, 1964]."
Certain Other Transfers in Taxable Years Beginning Before Jan. 1, 1964
"(1) no deduction has been allowed in respect of such transfer for any taxable year before the taxable year in which the contest with respect to such transfer is settled, and
"(2) refund or credit of any overpayment which would result from the application of such amendments to such transfer is prevented by the operation of any law or rule of law.
In the case of any transfer to which this subsection applies, the deduction shall be allowed for the taxable year in which the contest with respect to such transfer is settled."
[§462. Repealed. June 15, 1955, ch. 143, §1(b), 69 Stat. 134 ]
Section, act Aug. 16, 1954, ch. 736
Statutory Notes and Related Subsidiaries
Effective Date of Repeal
Repeal effective with respect to taxable years beginning after Dec. 31, 1953, and ending after Aug. 16, 1954, see section 3 of Act June 15, 1955, set out as an Effective Date of 1955 Amendment note under
Savings Provision
For provisions concerning increase in tax in any taxable year ending on or before June 15, 1955 by reason of enactment of act June 15, 1955, see section 4 of act June 15, 1955, set out as a note under
[§463. Repealed. Pub. L. 100–203, title X, §10201(a), Dec. 22, 1987, 101 Stat. 1330–387 ]
Section, added
Statutory Notes and Related Subsidiaries
Effective Date of Repeal
Repeal applicable to taxable years beginning after Dec. 31, 1987, see section 10201(c)(1) of
Change in Method of Accounting Required by Pub. L. 100–203
"(A) such change shall be treated as initiated by the taxpayer,
"(B) such change shall be treated as having been made with the consent of the Secretary, and
"(C) the net amount of adjustments required by section 481 of such Code to be taken into account by the taxpayer—
"(i) shall be reduced by the balance in the suspense account under section 463(c) of such Code as of the close of such last taxable year, and
"(ii) shall be taken into account over the 4-taxable year period beginning with the taxable year following such last taxable year as follows:
| "In the case of the: | The percentage taken into account is: |
|---|---|
| 1st year | 25 |
| 2nd year | 5 |
| 3rd year | 35 |
| 4th year | 35. |
Notwithstanding subparagraph (C)(ii), if the period the adjustments are required to be taken into account under section 481 of such Code is less than 4 years, such adjustments shall be taken into account ratably over such shorter period."
§464. Limitations on deductions for certain farming expenses
(a) General rule
In the case of any taxpayer to whom subsection (d) applies, a deduction (otherwise allowable under this chapter) for amounts paid for feed, seed, fertilizer, or other similar farm supplies shall only be allowed for the taxable year in which such feed, seed, fertilizer, or other supplies are actually used or consumed, or, if later, for the taxable year for which allowable as a deduction (determined without regard to this section).
(b) Certain poultry expenses
In the case of any taxpayer to whom subsection (d) applies—
(1) the cost of poultry (including egg-laying hens and baby chicks) purchased for use in a trade or business (or both for use in a trade or business and for sale) shall be capitalized and deducted ratably over the lesser of 12 months or their useful life in the trade or business, and
(2) the cost of poultry purchased for sale shall be deducted for the taxable year in which the poultry is sold or otherwise disposed of.
(c) Exception
Subsection (a) shall not apply to any amount paid for supplies which are on hand at the close of the taxable year on account of fire, storm, or other casualty, or on account of disease or drought.
(d) Certain persons prepaying 50 percent or more of certain farming expenses
(1) Taxpayer to whom subsection applies
This subsection applies to any taxpayer for any taxable year if such taxpayer—
(A) does not use an accrual method of accounting,
(B) has excess prepaid farm supplies for the taxable year, and
(C) is not a qualified farm-related taxpayer.
(2) Qualified farm-related taxpayer
(A) In general
For purposes of this subsection, the term "qualified farm-related taxpayer" means any farm-related taxpayer if—
(i)(I) the aggregate prepaid farm supplies for the 3 taxable years preceding the taxable year are less than 50 percent of,
(II) the aggregate deductible farming expenses (other than prepaid farm supplies) for such 3 taxable years, or
(ii) the taxpayer has excess prepaid farm supplies for the taxable year by reason of any change in business operation directly attributable to extraordinary circumstances.
(B) Farm-related taxpayer
For purposes of this paragraph, the term "farm-related taxpayer" means any taxpayer—
(i) whose principal residence (within the meaning of section 121) is on a farm,
(ii) who has a principal occupation of farming, or
(iii) who is a member of the family (within the meaning of section 461(k)(2)(E)) of a taxpayer described in clause (i) or (ii).
(3) Definitions
For purposes of this subsection—
(A) Excess prepaid farm supplies
The term "excess prepaid farm supplies" means the prepaid farm supplies for the taxable year to the extent the amount of such supplies exceeds 50 percent of the deductible farming expenses for the taxable year (other than prepaid farm supplies).
(B) Prepaid farm supplies
The term "prepaid farm supplies" means any amounts which are described in subsection (a) or (b) and would be allowable for a subsequent taxable year under the rules of subsections (a) and (b).
(C) Deductible farming expenses
The term "deductible farming expenses" means any amount allowable as a deduction under this chapter (including any amount allowable as a deduction for depreciation or amortization) which is properly allocable to the trade or business of farming.
(e) Farming
For purposes of this section, the term "farming" means the cultivation of land or the raising or harvesting of any agricultural or horticultural commodity including the raising, shearing, feeding, caring for, training, and management of animals. For purposes of the preceding sentence, trees (other than trees bearing fruit or nuts) shall not be treated as an agricultural or horticultural commodity.
(Added
Editorial Notes
Amendments
2018—
Subsec. (d)(2)(B)(iii).
2014—Subsecs. (a), (b).
Subsec. (c).
Subsec. (d).
Subsec. (e).
Subsec. (f).
Subsec. (g).
1997—Subsec. (f)(3)(B)(i).
1988—Subsec. (g).
1986—
Subsec. (d).
"(1) any amount paid for supplies which are on hand at the close of the taxable year on account of fire, storm, flood, or other casualty or on account of disease or drought, or
"(2) any amount required to be charged to capital account under section 278."
Subsec. (f).
1982—Subsec. (c)(1)(A), (B).
1978—Subsec. (c)(2).
Statutory Notes and Related Subsidiaries
Effective Date of 2014 Amendment
Amendment by
Effective Date of 1997 Amendment
Amendment by
Effective Date of 1988 Amendment
Amendment by
Effective Date of 1986 Amendment
If any interest costs incurred after Dec. 31, 1986, are attributable to costs incurred before Jan. 1, 1987, the amendment by section 803(b)(8) of
Amendment by section 803(b)(8) of
Effective Date of 1982 Amendment
Amendment by
Effective Date of 1978 Amendment
Amendment by
Effective Date
"(A)
"(B)
§465. Deductions limited to amount at risk
(a) Limitation to amount at risk
(1) In general
In the case of—
(A) an individual, and
(B) a C corporation with respect to which the stock ownership requirement of paragraph (2) of section 542(a) is met,
engaged in an activity to which this section applies, any loss from such activity for the taxable year shall be allowed only to the extent of the aggregate amount with respect to which the taxpayer is at risk (within the meaning of subsection (b)) for such activity at the close of the taxable year.
(2) Deduction in succeeding year
Any loss from an activity to which this section applies not allowed under this section for the taxable year shall be treated as a deduction allocable to such activity in the first succeeding taxable year.
(3) Special rules for applying paragraph (1)(B)
For purposes of paragraph (1)(B)—
(A) section 544(a)(2) shall be applied as if such section did not contain the phrase "or by or for his partner"; and
(B) sections 544(a)(4)(A) and 544(b)(1) shall be applied by substituting "the corporation meet the stock ownership requirements of section 542(a)(2)" for "the corporation a personal holding company".
(b) Amounts considered at risk
(1) In general
For purposes of this section, a taxpayer shall be considered at risk for an activity with respect to amounts including—
(A) the amount of money and the adjusted basis of other property contributed by the taxpayer to the activity, and
(B) amounts borrowed with respect to such activity (as determined under paragraph (2)).
(2) Borrowed amounts
For purposes of this section, a taxpayer shall be considered at risk with respect to amounts borrowed for use in an activity to the extent that he—
(A) is personally liable for the repayment of such amounts, or
(B) has pledged property, other than property used in such activity, as security for such borrowed amount (to the extent of the net fair market value of the taxpayer's interest in such property).
No property shall be taken into account as security if such property is directly or indirectly financed by indebtedness which is secured by property described in paragraph (1).
(3) Certain borrowed amounts excluded
(A) In general
Except to the extent provided in regulations, for purposes of paragraph (1)(B), amounts borrowed shall not be considered to be at risk with respect to an activity if such amounts are borrowed from any person who has an interest in such activity or from a related person to a person (other than the taxpayer) having such an interest.
(B) Exceptions
(i) Interest as creditor
Subparagraph (A) shall not apply to an interest as a creditor in the activity.
(ii) Interest as shareholder with respect to amounts borrowed by corporation
In the case of amounts borrowed by a corporation from a shareholder, subparagraph (A) shall not apply to an interest as a shareholder.
(C) Related person
For purposes of this subsection, a person (hereinafter in this paragraph referred to as the "related person") is related to any person if—
(i) the related person bears a relationship to such person specified in section 267(b) or section 707(b)(1), or
(ii) the related person and such person are engaged in trades or business under common control (within the meaning of subsections (a) and (b) of section 52).
For purposes of clause (i), in applying section 267(b) or 707(b)(1), "10 percent" shall be substituted for "50 percent".
(4) Exception
Notwithstanding any other provision of this section, a taxpayer shall not be considered at risk with respect to amounts protected against loss through nonrecourse financing, guarantees, stop loss agreements, or other similar arrangements.
(5) Amounts at risk in subsequent years
If in any taxable year the taxpayer has a loss from an activity to which subsection (a) applies, the amount with respect to which a taxpayer is considered to be at risk (within the meaning of subsection (b)) in subsequent taxable years with respect to that activity shall be reduced by that portion of the loss which (after the application of subsection (a)) is allowable as a deduction.
(6) Qualified nonrecourse financing treated as amount at risk
For purposes of this section—
(A) In general
Notwithstanding any other provision of this subsection, in the case of an activity of holding real property, a taxpayer shall be considered at risk with respect to the taxpayer's share of any qualified nonrecourse financing which is secured by real property used in such activity.
(B) Qualified nonrecourse financing
For purposes of this paragraph, the term "qualified nonrecourse financing" means any financing—
(i) which is borrowed by the taxpayer with respect to the activity of holding real property,
(ii) which is borrowed by the taxpayer from a qualified person or represents a loan from any Federal, State, or local government or instrumentality thereof, or is guaranteed by any Federal, State, or local government,
(iii) except to the extent provided in regulations, with respect to which no person is personally liable for repayment, and
(iv) which is not convertible debt.
(C) Special rule for partnerships
In the case of a partnership, a partner's share of any qualified nonrecourse financing of such partnership shall be determined on the basis of the partner's share of liabilities of such partnership incurred in connection with such financing (within the meaning of section 752).
(D) Qualified person defined
For purposes of this paragraph—
(i) In general
The term "qualified person" has the meaning given such term by section 49(a)(1)(D)(iv).
(ii) Certain commercially reasonable financing from related persons
For purposes of clause (i), section 49(a)(1)(D)(iv) shall be applied without regard to subclause (I) thereof (relating to financing from related persons) if the financing from the related person is commercially reasonable and on substantially the same terms as loans involving unrelated persons.
(E) Activity of holding real property
For purposes of this paragraph—
(i) Incidental personal property and services
The activity of holding real property includes the holding of personal property and the providing of services which are incidental to making real property available as living accommodations.
(ii) Mineral property
The activity of holding real property shall not include the holding of mineral property.
(c) Activities to which section applies
(1) Types of activities
This section applies to any taxpayer engaged in the activity of—
(A) holding, producing, or distributing motion picture films or video tapes,
(B) farming (as defined in section 464(e)),
(C) leasing any section 1245 property (as defined in section 1245(a)(3)),
(D) exploring for, or exploiting, oil and gas resources, or
(E) exploring for, or exploiting, geothermal deposits (as defined in section 613(e)(2)) 1
as a trade or business or for the production of income.
(2) Separate activities
For purposes of this section—
(A) In general
Except as provided in subparagraph (B), a taxpayer's activity with respect to each—
(i) film or video tape,
(ii) section 1245 property which is leased or held for leasing,
(iii) farm,
(iv) oil and gas property (as defined under section 614), or
(v) geothermal property (as defined under section 614),
shall be treated as a separate activity.
(B) Aggregation rules
(i) Special rule for leases of section 1245 property by partnerships or S corporations
In the case of any partnership or S corporation, all activities with respect to section 1245 properties which—
(I) are leased or held for lease, and
(II) are placed in service in any taxable year of the partnership or S corporation,
shall be treated as a single activity.
(ii) Other aggregation rules
Rules similar to the rules of subparagraphs (B) and (C) of paragraph (3) shall apply for purposes of this paragraph.
(3) Extension to other activities
(A) In general
This section also applies to each activity—
(i) engaged in by the taxpayer in carrying on a trade or business or for the production of income, and
(ii) which is not described in paragraph (1).
(B) Aggregation of activities where taxpayer actively participates in management of trade or business
Except as provided in subparagraph (C), for purposes of this section, activities described in subparagraph (A) which constitute a trade or business shall be treated as one activity if—
(i) the taxpayer actively participates in the management of such trade or business, or
(ii) such trade or business is carried on by a partnership or an S corporation and 65 percent or more of the losses for the taxable year is allocable to persons who actively participate in the management of the trade or business.
(C) Aggregation or separation of activities under regulations
The Secretary shall prescribe regulations under which activities described in subparagraph (A) shall be aggregated or treated as separate activities.
(D) Application of subsection (b)(3)
In the case of an activity described in subparagraph (A), subsection (b)(3) shall apply only to the extent provided in regulations prescribed by the Secretary.
(4) Exclusion for certain equipment leasing by closely-held corporations
(A) In general
In the case of a corporation described in subsection (a)(1)(B) actively engaged in equipment leasing—
(i) the activity of equipment leasing shall be treated as a separate activity, and
(ii) subsection (a) shall not apply to losses from such activity.
(B) 50-percent gross receipts test
For purposes of subparagraph (A), a corporation shall not be considered to be actively engaged in equipment leasing unless 50 percent or more of the gross receipts of the corporation for the taxable year is attributable, under regulations prescribed by the Secretary, to equipment leasing.
(C) Component members of controlled group treated as a single corporation
For purposes of subparagraph (A), the component members of a controlled group of corporations shall be treated as a single corporation.
(5) Waiver of controlled group rule where there is substantial leasing activity
(A) In general
In the case of the component members of a qualified leasing group, paragraph (4) shall be applied—
(i) by substituting "80 percent" for "50 percent" in subparagraph (B) thereof, and
(ii) as if paragraph (4) did not include subparagraph (C) thereof.
(B) Qualified leasing group
For purposes of this paragraph, the term "qualified leasing group" means a controlled group of corporations which, for the taxable year and each of the 2 immediately preceding taxable years, satisfied each of the following 3 requirements:
(i) At least 3 employees
During the entire year, the group had at least 3 full-time employees substantially all of the services of whom were services directly related to the equipment leasing activity of the qualified leasing members.
(ii) At least 5 separate leasing transactions
During the year, the qualified leasing members in the aggregate entered into at least 5 separate equipment leasing transactions.
(iii) At least $1,000,000 equipment leasing receipts
During the year, the qualified leasing members in the aggregate had at least $1,000,000 in gross receipts from equipment leasing.
The term "qualified leasing group" does not include any controlled group of corporations to which, without regard to this paragraph, paragraph (4) applies.
(C) Qualified leasing member
For purposes of this paragraph, a corporation shall be treated as a qualified leasing member for the taxable year only if for each of the taxable years referred to in subparagraph (B)—
(i) it is a component member of the controlled group of corporations, and
(ii) it meets the requirements of paragraph (4)(B) (as modified by subparagraph (A)(i) of this paragraph).
(6) Definitions relating to paragraphs (4) and (5)
For purposes of paragraphs (4) and (5)—
(A) Equipment leasing
The term "equipment leasing" means—
(i) the leasing of equipment which is section 1245 property, and
(ii) the purchasing, servicing, and selling of such equipment.
(B) Leasing of master sound recordings, etc., excluded
The term "equipment leasing" does not include the leasing of master sound recordings, and other similar contractual arrangements with respect to tangible or intangible assets associated with literary, artistic, or musical properties.
(C) Controlled group of corporations; component member
The terms "controlled group of corporations" and "component member" have the same meanings as when used in section 1563. The determination of the taxable years taken into account with respect to any controlled group of corporations shall be made in a manner consistent with the manner set forth in section 1563.
(7) Exclusion of active businesses of qualified C corporations
(A) In general
In the case of a taxpayer which is a qualified C corporation—
(i) each qualifying business carried on by such taxpayer shall be treated as a separate activity, and
(ii) subsection (a) shall not apply to losses from such business.
(B) Qualified C corporation
For purposes of subparagraph (A), the term "qualified C corporation" means any corporation described in subparagraph (B) of subsection (a)(1) which is not—
(i) a personal holding company (as defined in section 542(a)), or
(ii) a personal service corporation (as defined in section 269A(b) but determined by substituting "5 percent" for "10 percent" in section 269A(b)(2)).
(C) Qualifying business
For purposes of this paragraph, the term "qualifying business" means any active business if—
(i) during the entire 12-month period ending on the last day of the taxable year, such corporation had at least 1 full-time employee substantially all the services of whom were in the active management of such business,
(ii) during the entire 12-month period ending on the last day of the taxable year, such corporation had at least 3 full-time, nonowner employees substantially all of the services of whom were services directly related to such business,
(iii) the amount of the deductions attributable to such business which are allowable to the taxpayer solely by reason of sections 162 and 404 for the taxable year exceeds 15 percent of the gross income from such business for such year, and
(iv) such business is not an excluded business.
(D) Special rules for application of subparagraph (C)
(i) Partnerships in which taxpayer is a qualified corporate partner
In the case of an active business of a partnership, if—
(I) the taxpayer is a qualified corporate partner in the partnership, and
(II) during the entire 12-month period ending on the last day of the partnership's taxable year, there was at least 1 full-time employee of the partnership (or of a qualified corporate partner) substantially all the services of whom were in the active management of such business,
then the taxpayer's proportionate share (determined on the basis of its profits interest) of the activities of the partnership in such business shall be treated as activities of the taxpayer (and clause (i) of subparagraph (C) shall not apply in determining whether such business is a qualifying business of the taxpayer).
(ii) Qualified corporate partner
For purposes of clause (i), the term "qualified corporate partner" means any corporation if—
(I) such corporation is a general partner in the partnership,
(II) such corporation has an interest of 10 percent or more in the profits and losses of the partnership, and
(III) such corporation has contributed property to the partnership in an amount not less than the lesser of $500,000 or 10 percent of the net worth of the corporation.
For purposes of subclause (III), any contribution of property other than money shall be taken into account at its fair market value.
(iii) Deduction for owner employee compensation not taken into account
For purposes of clause (iii) of subparagraph (C), there shall not be taken into account any deduction in respect of compensation for personal services rendered by any employee (other than a non-owner employee) of the taxpayer or any member of such employee's family (within the meaning of section 318(a)(1)).
(iv) Special rule for banks
For purposes of clause (iii) of subparagraph (C), in the case of a bank (as defined in section 581) or a financial institution to which section 591 applies—
(I) gross income shall be determined without regard to the exclusion of interest from gross income under section 103, and
(II) in addition to the deductions described in such clause, there shall also be taken into account the amount of the deductions which are allowable for amounts paid or credited to the accounts of depositors or holders of accounts as dividends or interest on their deposits or withdrawable accounts under section 163 or 591.
(v) Special rule for life insurance companies
(I) In general
Clause (iii) of subparagraph (C) shall not apply to any insurance business of a qualified life insurance company.
(II) Insurance business
For purposes of subclause (I), the term "insurance business" means any business which is not a noninsurance business (within the meaning of section 453B(e)(3)).
(III) Qualified life insurance company
For purposes of subclause (I), the term "qualified life insurance company" means any company which would be a life insurance company as defined in section 816 if unearned premiums were not taken into account under subsections (a)(2) and (c)(2) of section 816.
(E) Definitions
For purposes of this paragraph—
(i) Non-owner employee
The term "non-owner employee" means any employee who does not own, at any time during the taxable year, more than 5 percent in value of the outstanding stock of the taxpayer. For purposes of the preceding sentence, section 318 shall apply, except that "5 percent" shall be substituted for "50 percent" in section 318(a)(2)(C).
(ii) Excluded business
The term "excluded business" means—
(I) equipment leasing (as defined in paragraph (6)), and
(II) any business involving the use, exploitation, sale, lease, or other disposition of master sound recordings, motion picture films, video tapes, or tangible or intangible assets associated with literary, artistic, musical, or similar properties.
(iii) Special rules relating to communications industry, etc.
(I) Business not excluded where taxpayer not completely at risk
A business involving the use, exploitation, sale, lease, or other disposition of property described in subclause (II) of clause (ii) shall not constitute an excluded business by reason of such subclause if the taxpayer is at risk with respect to all amounts paid or incurred (or chargeable to capital account) in such business.
(II) Certain licensed businesses not excluded
For purposes of subclause (II) of clause (ii), the provision of radio, television, cable television, or similar services pursuant to a license or franchise granted by the Federal Communications Commission or any other Federal, State, or local authority shall not constitute an excluded business by reason of such subclause.
(F) Affiliated group treated as 1 taxpayer
For purposes of this paragraph—
(i) In general
Except as provided in subparagraph (G), the component members of an affiliated group of corporations shall be treated as a single taxpayer.
(ii) Affiliated group of corporations
The term "affiliated group of corporations" means an affiliated group (as defined in section 1504(a)) which files or is required to file consolidated income tax returns.
(iii) Component member
The term "component member" means an includible corporation (as defined in section 1504) which is a member of the affiliated group.
(G) Loss of 1 member of affiliated group may not offset income of personal holding company or personal service corporation
Nothing in this paragraph shall permit any loss of a member of an affiliated group to be used as an offset against the income of any other member of such group which is a personal holding company (as defined in section 542(a)) or a personal service corporation (as defined in section 269A(b) but determined by substituting "5 percent" for "10 percent" in section 269A(b)(2)).
(d) Definition of loss
For purposes of this section, the term "loss" means the excess of the deductions allowable under this chapter for the taxable year (determined without regard to the first sentence of subsection (a)) and allocable to an activity to which this section applies over the income received or accrued by the taxpayer during the taxable year from such activity (determined without regard to subsection (e)(1)(A)).
(e) Recapture of losses where amount at risk is less than zero
(1) In general
If zero exceeds the amount for which the taxpayer is at risk in any activity at the close of any taxable year—
(A) the taxpayer shall include in his gross income for such taxable year (as income from such activity) an amount equal to such excess, and
(B) an amount equal to the amount so included in gross income shall be treated as a deduction allocable to such activity for the first succeeding taxable year.
(2) Limitation
The excess referred to in paragraph (1) shall not exceed—
(A) the aggregate amount of the reductions required by subsection (b)(5) with respect to the activity by reason of losses for all prior taxable years beginning after December 31, 1978, reduced by
(B) the amounts previously included in gross income with respect to such activity under this subsection.
(Added
Editorial Notes
Amendments
2017—Subsec. (c)(7)(D)(v)(II).
2014—Subsec. (c)(3)(A).
2004—Subsec. (c)(7)(B).
1990—Subsec. (b)(6)(D).
Subsec. (c)(1)(E).
1986—Subsec. (b)(3)(C).
Subsec. (b)(6).
Subsec. (c)(3)(D), (E).
Subsec. (c)(7)(D)(v)(II).
1984—Subsec. (a)(1)(B).
Subsec. (b)(3).
Subsec. (c)(2).
Subsec. (c)(7).
1982—Subsec. (a)(1).
Subsec. (a)(3).
Subsec. (c)(2).
Subsec. (c)(3)(B)(ii).
Subsec. (c)(4)(A).
1980—Subsec. (a)(1)(C), (3).
Subsec. (b)(5).
Subsec. (c)(3)(D).
Subsec. (c)(4) to (6).
Subsec. (d).
Subsec. (e)(2)(A).
1978—
Subsec. (a).
Subsec. (c)(1)(E).
Subsec. (c)(2)(E).
Subsec. (c)(3).
Subsec. (d).
Subsec. (e).
Statutory Notes and Related Subsidiaries
Effective Date of 2017 Amendment
Amendment by
Effective Date of 2014 Amendment
Amendment by
Effective Date of 2004 Amendment
Amendment by
Effective Date of 1990 Amendment
Amendment by section 11813(b)(15) of
Effective Date of 1986 Amendment
Amendment by section 201(d)(7)(A) of
Amendment by section 201(d)(7)(A) of
"(1)
"(2)
"(3)
Amendment by section 1011(b)(1) of
Effective Date of 1984 Amendment
Amendment by section 721(x)(2) of
Effective Date of 1982 Amendment
Amendment by
Effective Date of 1980 Amendment
Amendment by
Effective Date of 1978 Amendment
Amendment by
Effective Date and Transitional Rules
"(1)
"(2)
"(A)
"(i) deductions for depreciation or amortization with respect to property the principal production of which began before September 11, 1975, and for the purchase of which there was on September 11, 1975, and at all times thereafter a binding contract, and
"(ii) deductions attributable to producing or distributing property the principal production of which began before September 11, 1975.
"(B)
"(i) on September 10, 1975, there was an agreement with the director or a principal motion picture star, or on or before September 10, 1975, there had been expended (or committed to the production) an amount not less than the lower of $100,000 or 10 percent of the estimated costs of producing the film, and
"(ii) the production takes place in the United States.
Subparagraph (A) shall apply only to taxpayers who held their interests on September 10, 1975. Subparagraph (B) shall apply only to taxpayers who held their interests on December 31, 1975.
"(3)
"(A)
"(i) leases entered into before January 1, 1976, and
"(ii) leases where the property was ordered by the lessor or lessee before January 1, 1976.
"(B)
"(C)
"(i) subparagraph (A) shall be applied by substituting 'May 1, 1976' for 'January 1, 1976' each place it appears therein, and
"(ii) subparagraph (B) shall be applied by substituting 'April 30, 1976' for 'December 31, 1975'."
Savings Provision
For provisions that nothing in amendment by
Transitional Rules for Recapture Provisions and Leasing Activities
"(1)
"(2)
"(A)
"(i) leases entered into before November 1, 1978, and
"(ii) leases where the property was ordered by the lessor or lessee before November 1, 1978.
"(B)
1 So in original. Probably should be followed by a comma.
[§466. Repealed. Pub. L. 99–514, title VIII, §823(a), Oct. 22, 1986, 100 Stat. 2373 ]
Section, added
Statutory Notes and Related Subsidiaries
Effective Date of Repeal
"(1)
"(2)
"(A) such change shall be treated as initiated by the taxpayer,
"(B) such change shall be treated as having been made with the consent of the Secretary, and
"(C) the net amount of adjustments required by section 481 of the Internal Revenue Code of 1986 to be taken into account by the taxpayer shall—
"(i) be reduced by the balance in the suspense account under section 466(e) of such Code as of the close of such last taxable year, and
"(ii) be taken into account over a period not longer than 4 years."
§467. Certain payments for the use of property or services
(a) Accrual method on present value basis
In the case of the lessor or lessee under any section 467 rental agreement, there shall be taken into account for purposes of this title for any taxable year the sum of—
(1) the amount of the rent which accrues during such taxable year as determined under subsection (b), and
(2) interest for the year on the amounts which were taken into account under this subsection for prior taxable years and which are unpaid.
(b) Accrual of rental payments
(1) Allocation follows agreement
Except as provided in paragraph (2), the determination of the amount of the rent under any section 467 rental agreement which accrues during any taxable year shall be made—
(A) by allocating rents in accordance with the agreement, and
(B) by taking into account any rent to be paid after the close of the period in an amount determined under regulations which shall be based on present value concepts.
(2) Constant rental accrual in case of certain tax avoidance transactions, etc.
In the case of any section 467 rental agreement to which this paragraph applies, the portion of the rent which accrues during any taxable year shall be that portion of the constant rental amount with respect to such agreement which is allocable to such taxable year.
(3) Agreements to which paragraph (2) applies
Paragraph (2) applies to any rental payment agreement if—
(A) such agreement is a disqualified leaseback or long-term agreement, or
(B) such agreement does not provide for the allocation referred to in paragraph (1)(A).
(4) Disqualified leaseback or long-term agreement
For purposes of this subsection, the term "disqualified leaseback or long-term agreement" means any section 467 rental agreement if—
(A) such agreement is part of a leaseback transaction or such agreement is for a term in excess of 75 percent of the statutory recovery period for the property, and
(B) a principal purpose for providing increasing rents under the agreement is the avoidance of tax imposed by this subtitle.
(5) Exceptions to disqualification in certain cases
The Secretary shall prescribe regulations setting forth circumstances under which agreements will not be treated as disqualified leaseback or long-term agreements, including circumstances relating to—
(A) changes in amounts paid determined by reference to price indices,
(B) rents based on a fixed percentage of lessee receipts or similar amounts,
(C) reasonable rent holidays, or
(D) changes in amounts paid to unrelated 3rd parties.
(c) Recapture of prior understated inclusions under leaseback or long-term agreements
(1) In general
If—
(A) the lessor under any section 467 rental agreement disposes of any property subject to such agreement during the term of such agreement, and
(B) such agreement is a leaseback or long-term agreement to which paragraph (2) of subsection (b) did not apply,
the recapture amount shall be treated as ordinary income. Such gain shall be recognized notwithstanding any other provision of this subtitle.
(2) Recapture amount
For purposes of paragraph (1), the term "recapture amount" means the lesser of—
(A) the prior understated inclusions, or
(B) the excess of the amount realized (or in the case of a disposition other than a sale, exchange, or involuntary conversion, the fair market value of the property) over the adjusted basis of such property.
The amount determined under subparagraph (B) shall be reduced by the amount of any gain treated as ordinary income on the disposition under any other provision of this subtitle.
(3) Prior understated inclusions
For purposes of this subsection, the term "prior understated inclusion" means the excess (if any) of—
(A) the amount which would have been taken into account by the lessor under subsection (a) for periods before the disposition if subsection (b)(2) had applied to the agreement, over
(B) the amount taken into account under subsection (a) by the lessor for periods before the disposition.
(4) Leaseback or long-term agreement
For purposes of this subsection, the term "leaseback or long-term agreement" means any agreement described in subsection (b)(4)(A).
(5) Special rules
Under regulations prescribed by the Secretary—
(A) exceptions similar to the exceptions applicable under section 1245 or 1250 (whichever is appropriate) shall apply for purposes of this subsection,
(B) any transferee in a disposition excepted by reason of subparagraph (A) who has a transferred basis in the property shall be treated in the same manner as the transferor, and
(C) for purposes of sections 170(e) and 751(c), amounts treated as ordinary income under this section shall be treated in the same manner as amounts treated as ordinary income under section 1245 or 1250.
(d) Section 467 rental agreements
(1) In general
Except as otherwise provided in this subsection, the term "section 467 rental agreements" means any rental agreement for the use of tangible property under which—
(A) there is at least one amount allocable to the use of property during a calendar year which is to be paid after the close of the calendar year following the calendar year in which such use occurs, or
(B) there are increases in the amount to be paid as rent under the agreement.
(2) Section not to apply to agreements involving payments of $250,000 or less
This section shall not apply to any amount to be paid for the use of property if the sum of the following amounts does not exceed $250,000—
(A) the aggregate amount of payments received as consideration for such use of property, and
(B) the aggregate value of any other consideration to be received for such use of property.
For purposes of the preceding sentence, rules similar to the rules of clauses (ii) and (iii) of section 1274(c)(4)(C) shall apply.
(e) Definitions
For purposes of this section—
(1) Constant rental amount
The term "constant rental amount" means, with respect to any section 467 rental agreement, the amount which, if paid as of the close of each lease period under the agreement, would result in an aggregate present value equal to the present value of the aggregate payments required under the agreement.
(2) Leaseback transaction
A transaction is a leaseback transaction if it involves a leaseback to any person who had an interest in such property at any time within 2 years before such leaseback (or to a related person).
(3) Statutory recovery period
(A) In general
| In the case of: | The statutory recovery period is: |
|---|---|
| 3-year property | 3 years |
| 5-year property | 5 years |
| 7-year property | 7 years |
| 10-year property | 10 years |
| 15-year and 20-year property | 15 years |
| Residential rental property and nonresidential real property | 19 years |
| Any railroad grading or tunnel bore | 50 years. |
(B) Special rule for property not depreciable under section 168
In the case of property to which section 168 does not apply, subparagraph (A) shall be applied as if section 168 applies to such property.
(4) Discount and interest rate
For purposes of computing present value and interest under subsection (a)(2), the rate used shall be equal to 110 percent of the applicable Federal rate determined under section 1274(d) (compounded semiannually) which is in effect at the time the agreement is entered into with respect to debt instruments having a maturity equal to the term of the agreement.
(5) Related person
The term "related person" has the meaning given to such term by section 465(b)(3)(C).
(6) Certain options of lessee to renew not taken into account
Except as provided in regulations prescribed by the Secretary, there shall not be taken into account in computing the term of any agreement for purposes of this section any extension which is solely at the option of the lessee.
(f) Comparable rules where agreement for decreasing payments
Under regulations prescribed by the Secretary, rules comparable to the rules of this section shall also apply in the case of any agreement where the amount paid under the agreement for the use of property decreases during the term of the agreement.
(g) Comparable rules for services
Under regulations prescribed by the Secretary, rules comparable to the rules of subsection (a)(2) shall also apply in the case of payments for services which meet requirements comparable to the requirements of subsection (d). The preceding sentence shall not apply to any amount to which section 404 or 404A (or any other provision specified in regulations) applies.
(h) Regulations
The Secretary shall prescribe such regulations as may be appropriate to carry out the purposes of this section, including regulations providing for the application of this section in the case of contingent payments.
(Added
Editorial Notes
Amendments
2003—Subsec. (c)(5)(C).
1988—Subsec. (c)(5)(C).
Subsec. (e)(3)(A).
1986—Subsec. (b)(4)(A).
Subsec. (c)(4).
Subsec. (c)(5)(C).
Subsec. (d)(2).
Subsec. (e)(3)(A).
Subsec. (e)(3)(B).
Subsec. (e)(5).
Subsec. (g).
Statutory Notes and Related Subsidiaries
Effective Date of 2003 Amendment
Amendment by
Effective Date of 1988 Amendment
Amendment by
Effective Date of 1986 Amendment
Amendment by section 201(d)(8) of
Amendment by section 201(d)(8) of
Amendment by section 511(d)(2)(A) of
Amendment by section 631(e)(10) of
Amendment by section 1807(b) of
Effective Date
"(1)
"(2)
"(A) to any agreement entered into pursuant to a written agreement which was binding on June 8, 1984, and at all times thereafter,
"(B) subject to the provisions of paragraph (3), to any agreement to lease property if—
"(i) there was in effect a firm plan, evidenced by a board of directors' resolution, memorandum of agreement, or letter of intent on March 15, 1984, to enter into such an agreement, and
"(ii) construction of the property was commenced (but such property was not placed in service) on or before March 15, 1984, and
"(C) to any agreement to lease property if—
"(i) the lessee of such property adopted a firm plan to lease the property, evidenced by a resolution of the Finance Committee of the Board of Directors of such lessee, on February 10, 1984,
"(ii) the sum of the present values of the rents payable by the lessee under the lease at the inception thereof equals at least $91,223,034, assuming for purposes of this clause—
"(I) the annual discount rate is 12.6 percent,
"(II) the initial payment of rent occurs 12 months after the commencement of the lease, and
"(III) subsequent payments of rents occur on the anniversary date of the initial payment, and
"(iii) during—
"(I) the first 5 years of the lease, at least 9 percent of the rents payable by the lessee under the agreement are paid, and
"(II) the second 5 years of the lease, at least 16.25 percent of the rents payable by the lessee under the agreement are paid.
Paragraph (3)(B)(ii)(II) shall apply for purposes of clauses (ii) and (iii) of subparagraph (C), as if, as of the beginning of the last stage, the separate agreements were treated as 1 single agreement relating to all property covered by the agreements, including any property placed in service before the property to which the agreement for the last stage relates. If the lessor under the agreement described in subparagraph (C) leases the property from another person, this exception shall also apply to any agreement between the lessor and such person which is integrally related to, and entered into at the same time as, such agreement, and which calls for comparable payments of rent over the primary term of the agreement.
"(3)
"(A)
"(i) the amount of rents actually paid under the agreement during the taxable year, or
"(ii) the amount of rents determined in accordance with the schedule under subparagraph (B) for such taxable year.
"(B)
"(i)
| "Portion of lease term: | Cumulative percentage of total rent deemed paid: |
|---|---|
| 1st 1/5 | 10 |
| 2nd 1/5 | 25 |
| 3rd 1/5 | 45 |
| 4th 1/5 | 70 |
| Last 1/5 | 100. |
"(ii)
"(I) the rent allocable to each taxable year within any portion of a lease term described in such schedule shall be a level pro rata amount properly allocable to such taxable year, and
"(II) any agreement relating to property which is to be placed in service in 2 or more stages shall be treated as 2 or more separate agreements.
"(C)
Plan Amendments Not Required Until January 1, 1989
For provisions directing that if any amendments made by subtitle A or subtitle C of title XI [§§1101–1147 and 1171–1177] or title XVIII [§§1800–1899A] of
§468. Special rules for mining and solid waste reclamation and closing costs
(a) Establishment of reserves for reclamation and closing costs
(1) Allowance of deduction
If a taxpayer elects the application of this section with respect to any mining or solid waste disposal property, the amount of any deduction for qualified reclamation or closing costs for any taxable year to which such election applies shall be equal to the current reclamation or closing costs allocable to—
(A) in the case of qualified reclamation costs, the portion of the reserve property which was disturbed during such taxable year, and
(B) in the case of qualified closing costs, the production from the reserve property during such taxable year.
(2) Opening balance and adjustments to reserve
(A) Opening balance
The opening balance of any reserve for its first taxable year shall be zero.
(B) Increase for interest
A reserve shall be increased each taxable year by an amount equal to the amount of interest which would have been earned during such taxable year on the opening balance of such reserve for such taxable year if such interest were computed—
(i) at the Federal short-term rate or rates (determined under section 1274) in effect, and
(ii) by compounding semiannually.
(C) Reserve to be charged for amounts paid
Any amount paid by the taxpayer during any taxable year for qualified reclamation or closing costs allocable to portions of the reserve property for which the election under paragraph (1) was in effect shall be charged to the appropriate reserve as of the close of the taxable year.
(D) Reserve increased by amount deducted
A reserve shall be increased each taxable year by the amount allowable as a deduction under paragraph (1) for such taxable year which is allocable to such reserve.
(3) Allowance of deduction for excess amounts paid
There shall be allowed as a deduction for any taxable year the excess of—
(A) the amounts described in paragraph (2)(C) paid during such taxable year, over
(B) the closing balance of the reserve for such taxable year (determined without regard to paragraph (2)(C)).
(4) Limitation on balance as of the close of any taxable year
(A) Reclamation reserves
In the case of any reserve for qualified reclamation costs, there shall be included in gross income for any taxable year an amount equal to the excess of—
(i) the closing balance of the reserve for such taxable year, over
(ii) the current reclamation costs of the taxpayer for all portions of the reserve property disturbed during any taxable year to which the election under paragraph (1) applies.
(B) Closing costs reserves
In the case of any reserve for qualified closing costs, there shall be included in gross income for any taxable year an amount equal to the excess of—
(i) the closing balance of the reserve for such taxable year, over
(ii) the current closing cost of the taxpayer with respect to the reserve property, determined as if all production with respect to the reserve property for any taxable year to which the election under paragraph (1) applies had occurred in such taxable year.
(C) Order of application
This paragraph shall be applied after all adjustments to the reserve have been made for the taxable year.
(5) Income inclusions on completion or disposition
Proper inclusion in income shall be made upon—
(A) the revocation of an election under paragraph (1), or
(B) completion of the closing, or disposition of any portion, of a reserve property.
(b) Allocation for property where election not in effect for all taxable years
If the election under subsection (a)(1) is not in effect for 1 or more taxable years in which the reserved property is disturbed (or production occurs), items with respect to the reserve property shall be allocated to the reserve in such manner as the Secretary may prescribe by regulations.
(c) Revocation of election; separate reserves
(1) Revocation of election
(A) In general
The taxpayer may revoke an election under subsection (a)(1) with respect to any property. Such revocation, once made, shall be irrevocable.
(B) Time and manner of revocation
Any revocation under subparagraph (A) shall be made at such time and in such manner as the Secretary may prescribe.
(2) Separate reserves required
If a taxpayer makes an election under subsection (a)(1), the taxpayer shall establish with respect to the property for which the election was made—
(A) a separate reserve for qualified reclamation costs, and
(B) a separate reserve for qualified closing costs.
(d) Definitions and special rules relating to reclamation and closing costs
For purposes of this section—
(1) Current reclamation and closing costs
(A) Current reclamation costs
The term "current reclamation costs" means the amount which the taxpayer would be required to pay for qualified reclamation costs if the reclamation activities were performed currently.
(B) Current closing costs
(i) In general
The term "current closing costs" means the amount which the taxpayer would be required to pay for qualified closing costs if the closing activities were performed currently.
(ii) Costs computed on unit-of-production or capacity method
Estimated closing costs shall—
(I) in the case of the closing of any mine site, be computed on the unit-of-production method of accounting, and
(II) in the case of the closing of any solid waste disposal site, be computed on the unit-of-capacity method.
(2) Qualified reclamation or closing costs
The term "qualified reclamation or closing costs" means any of the following expenses:
(A) Mining reclamation and closing costs
Any expenses incurred for any land reclamation or closing activity which is conducted in accordance with a reclamation plan (including an amendment or modification thereof)—
(i) which—
(I) is submitted pursuant to the provisions of section 511 or 528 of the Surface Mining Control and Reclamation Act of 1977 (as in effect on January 1, 1984), and
(II) is part of a surface mining and reclamation permit granted under the provisions of title V of such Act (as so in effect), or
(ii) which is submitted pursuant to any other Federal or State law which imposes surface mining reclamation and permit requirements substantially similar to the requirements imposed by title V of such Act (as so in effect).
(B) Solid waste disposal and closing costs
(i) In general
Any expenses incurred for any land reclamation or closing activity in connection with any solid waste disposal site which is conducted in accordance with any permit issued pursuant to—
(I) any provision of the Solid Waste Disposal Act (as in effect on January 1, 1984) requiring such activity, or
(II) any other Federal, State, or local law which imposes requirements substantially similar to the requirements imposed by the Solid Waste Disposal Act (as so in effect).
(ii) Exception for certain hazardous waste sites
Clause (i) shall not apply to that portion of any property which is disturbed after the property is listed in the national contingency plan established under section 105 of the Comprehensive Environmental Response, Compensation, and Liability Act of 1980.
(3) Property
The term "property" has the meaning given such term by section 614.
(4) Reserve property
The term "reserve property" means any property with respect to which a reserve is established under subsection (a)(1).
(Added
Editorial Notes
References in Text
The Surface Mining Control and Reclamation Act of 1977, referred to in subsec. (d)(2)(A), is
The Solid Waste Disposal Act, referred to in subsec. (d)(2)(B)(i), is title II of
Section 105 of the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, referred to in subsec. (d)(2)(B)(ii), is classified to
Amendments
1990—Subsec. (a)(2)(B).
1986—Subsec. (a)(1).
Subsec. (a)(2)(D).
Subsec. (d)(2)(B)(ii).
Statutory Notes and Related Subsidiaries
Effective Date of 1986 Amendment
Amendment by section 1807(a)(3)(A), (C) of
Effective Date
Section effective July 18, 1984, with respect to taxable years ending after such date, except as otherwise provided, see section 91(g)(4) of
Savings Provision
For provisions that nothing in amendment by