Amended 1969
- 1969 Pub. L. 91-172 Pub. L. 91–172, § 512(f)(1), substituted “carrybacks and carryovers” for “carryover” in section catchline.
Cases: Electrolux Holdings v. United States, 491 F.3d 1327 (Fed. Cir. 2007); Jones v. Commissioner, 71 T.C. 391 (1978)
(a) Corporations
Amended 1964
- 1964 Pub. L. 88-571 Pub. L. 88–571 provided that if any portion of a net capital loss is attributable to a foreign expropriation capital loss, such portion shall be a short-term capital loss in each of the 10 succeeding taxable years, defined foreign expropriation capital loss, stated what portion of loss is attributable to foreign expropriation capital loss and the priority of application of the net capital loss, and struck out provisions that net capital losses for taxable years beginning before Oct. 20, 1951, were to be determined under the applicable law relating to the computation of capital gains and losses in effect before such date.
- 1964 Pub. L. 88-272 Pub. L. 88–272 designated existing provisions as subsec. (a), limited such subsection to corporations, and added subsec. (b).
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(1) In general If a corporation has a net capital loss for any taxable year (hereinafter in this paragraph referred to as the “loss year”), the amount thereof shall be—
Amended 1969, 1976
- 1976 Pub. L. 94-455 Pub. L. 94–455, §§ 1403(a), 1901(b)(33)(O), in subpar. (B) inserted introductory text “except as provided in subparagraph (C),” and struck out “(10) taxable years to the extent such loss is attributable to a foreign expropriation capital loss)” after “5 taxable years” and added subpar. (C), and substituted “capital gain net income” for “net capital gains”, “net capital gain” and “net capital gain” in last three sentences, respectively.
- 1969 Pub. L. 91-172 Pub. L. 91–172, § 512(a), provided for a 3-year capital loss carryback for corporations, not available for foreign expropriation capital losses for which a special 10-year carryforward is presently available, in addition to the 5–year capital loss carryforward presently allowed corporations, to the extent the carryback of such loss does not increase or produce a net operating loss for the taxable year to which it is being carried back.
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(A) a capital loss carryback to each of the 3 taxable years preceding the loss year, but only to the extent—
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(i) such loss is not attributable to a foreign expropriation capital loss, and
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(ii) the carryback of such loss does not increase or produce a net operating loss (as defined in section 172(c)) for the taxable year to which it is being carried back;
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(B) except as provided in subparagraph (C), a capital loss carryover to each of the 5 taxable years succeeding the loss year; and
(C) a capital loss carryover to each of the 10 taxable years succeeding the loss year, but only to the extent such loss is attributable to a foreign expropriation loss,
Amended 1978, 2010
- 2010 Pub. L. 111-325 Pub. L. 111–325, § 101(b)(1), amended subpar. (C) generally. Prior to amendment, subpar. (C) read as follows: “a capital loss carryover—
“(i) in the case of a regulated investment company (as defined in section 851) to each of the 8 taxable years succeeding the loss year, and
“(ii) to the extent such loss is attributable to a foreign expropriation capital loss, to each of the 10 taxable years succeeding the loss year.”
- 1978 Pub. L. 95-600 Pub. L. 95–600 substituted “succeeding the loss year” for “exceeding the loss year”.
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and shall be treated as a short-term capital loss in each such taxable year. The entire amount of the net capital loss for any taxable year shall be carried to the earliest of the taxable years to which such loss may be carried, and the portion of such loss which shall be carried to each of the other taxable years to which such loss may be carried shall be the excess, if any, of such loss over the total of the capital gain net income for each of the prior taxable years to which such loss may be carried. For purposes of the preceding sentence, the capital gain net income for any such prior taxable year shall be computed without regard to the net capital loss for the loss year or for any taxable year thereafter. In the case of any net capital loss which cannot be carried back in full to a preceding taxable year by reason of clause (ii) of subparagraph (A), the capital gain net income for such prior taxable year shall in no case be treated as greater than the amount of such loss which can be carried back to such preceding taxable year upon the application of such clause (ii).
(2) Definitions and special rules
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(A) Foreign expropriation capital loss defined For purposes of this subsection, the term “foreign expropriation capital loss” means, for any taxable year, the sum of the losses taken into account in computing the net capital loss for such year which are—
(i) losses sustained directly by reason of the expropriation, intervention, seizure, or similar taking of property by the government of any foreign country, any political subdivision thereof, or any agency or instrumentality of the foregoing, or
(ii) losses (treated under section 165(g)(1) as losses from the sale or exchange of capital assets) from securities which become worthless by reason of the expropriation, intervention, seizure, or similar taking of property by the government of any foreign country, any political subdivision thereof, or any agency or instrumentality of the foregoing.
(B) Portion of loss attributable to foreign expropriation capital loss For purposes of paragraph (1), the portion of any net capital loss for any taxable year attributable to a foreign expropriation capital loss is the amount of the foreign expropriation capital loss for such year (but not in excess of the net capital loss for such year).
(C) Priority of application For purposes of paragraph (1), if a portion of a net capital loss for any taxable year is attributable to a foreign expropriation capital loss, such portion shall be considered to be a separate net capital loss for such year to be applied after the other portion of such net capital loss.
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(3) Regulated investment companies
Amended 1969, 1982, 2004, 2010
- 2010 Pub. L. 111-325 Pub. L. 111–325, § 101(a), added par. (3) and redesignated former par. (3) as (4).
- 2004 Pub. L. 108-357 Pub. L. 108–357 reenacted heading without change and amended text of par. (3) generally. Prior to amendment, par. (3) provided that a net capital loss of a corporation would not be carried back under par. (1)(A) to a taxable year for which it was a foreign personal holding company (as defined in section 552), for which it was a regulated investment company (as defined in section 851), for which it was a real estate investment trust (as defined in section 856), or for which an election made by it under section 1247 was applicable (relating to election by foreign investment companies to distribute income currently).
- 1982 Pub. L. 97-354 Pub. L. 97–354 struck out par. (3) relating to electing small business corporations, and redesignated par. (4) as (3).
- 1969 Pub. L. 91-172 Pub. L. 91–172, § 512(b), added pars. (3) and (4).
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(A) In general If a regulated investment company has a net capital loss for any taxable year—
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(i) paragraph (1) shall not apply to such loss,
(ii) the excess of the net short-term capital loss over the net long-term capital gain for such year shall be a short-term capital loss arising on the first day of the next taxable year, and
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(iii) the excess of the net long-term capital loss over the net short-term capital gain for such year shall be a long-term capital loss arising on the first day of the next taxable year.
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(B) Coordination with general rule If a net capital loss to which paragraph (1) applies is carried over to a taxable year of a regulated investment company—
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(i) Losses to which this paragraph applies Clauses (ii) and (iii) of subparagraph (A) shall be applied without regard to any amount treated as a short-term capital loss under paragraph (1).
(ii) Losses to which general rule applies Paragraph (1) shall be applied by substituting “net capital loss for the loss year or any taxable year thereafter (other than a net capital loss to which paragraph (3)(A) applies)” for “net capital loss for the loss year or any taxable year thereafter”.
(4) Special rules on carrybacks A net capital loss of a corporation shall not be carried back under paragraph (1)(A) to a taxable year—
Amended 1969, 1982, 2010
- 2010 Pub. L. 111-325 Pub. L. 111–325, § 101(a), added par. (3) and redesignated former par. (3) as (4).
- 1982 Pub. L. 97-354 Pub. L. 97–354 struck out par. (3) relating to electing small business corporations, and redesignated par. (4) as (3).
- 1969 Pub. L. 91-172 Pub. L. 91–172, § 512(b), added pars. (3) and (4).
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(A) for which it is a regulated investment company (as defined in section 851), or
(B) for which it is a real estate investment trust (as defined in section 856).
(b) Other taxpayers
Amended 1969, 1984
- 1984 Pub. L. 98-369 Pub. L. 98–369, § 1002(a), struck out par. (3) which read as follows: “In the case of any amount which, under paragraph (1) and section 1211(b) (as in effect for taxable years beginning before January 1, 1970), is treated as a capital loss in the first taxable year beginning after December 31, 1969, paragraph (1) and section 1211(b) (as in effect for taxable years beginning before January 1, 1970) shall apply (and paragraph (1) and section 1211(b) as in effect for taxable years beginning after December 31, 1969, shall not apply) to the extent such amount exceeds the total of any net capital gains (determined without regard to this subsection) of taxable years beginning after December 31, 1969.”
- 1969 Pub. L. 91-172 Pub. L. 91–172, § 513(b), struck out reference to Dec. 31, 1963, struck out determination of a short-term capital gain as an amount equal to the excess allowed for the taxable year under former section 1211(b) over the gains from sales or exchanges of capital assets, struck out par. (2) treating as a short-term capital loss in the first taxable year beginning after Dec. 31, 1963, any amount which is treated as a short-term capital loss in such year under this subchapter as in effect immediately before the enactment of the Revenue Act of 1964, added new par. (2) dealing with special rules for determining the excesses referred to in par. (1)(A) and par. (1)(B) and added par. (3).
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Cases: Montgomery v. Commissioner, 127 T.C. 43 (2006)
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(1) In general If a taxpayer other than a corporation has a net capital loss for any taxable year—
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(A) the excess of the net short-term capital loss over the net long-term capital gain for such year shall be a short-term capital loss in the succeeding taxable year, and
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(B) the excess of the net long-term capital loss over the net short-term capital gain for such year shall be a long-term capital loss in the succeeding taxable year.
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(2) Treatment of amounts allowed under section 1211(b)(1) or (2)
Amended 1986, 1988
- 1988 Pub. L. 100-647 Pub. L. 100–647 substituted “Treatment of amounts allowed under section 1211(b)(1) or (2)” for “Special rule” as heading and amended text generally. Prior to amendment, text read as follows: “For purposes of determining the excess referred to in subparagraph (A) or (B) of paragraph (1), an amount equal to the amount allowed for the taxable year under paragraph (1) or (2) of section 1211(b) shall be treated as a short-term capital gain in such year.”
- 1986 Pub. L. 99-514 Pub. L. 99–514, § 301(b)(11), amended par. (2) generally. Prior to amendment, par. (2), special rules, read as follows:
- 1986 “(A) For purposes of determining the excess referred to in paragraph (1)(A), an amount equal to the amount allowed for the taxable year under section 1211(b)(1)(A), (B), or (C) shall be treated as a short-term capital gain in such year.
- 1986 “(B) For purposes of determining the excess referred to in paragraph (1)(B), an amount equal to the sum of—
“(i) the amount allowed for the taxable year under section 1211(b)(1)(A), (B), or (C), and
“(ii) the excess of the amount described in clause (i) over the net short-term capital loss (determined without regard to this subsection) for such year,
shall be treated as a short-term capital gain in such year.”
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(A) In general For purposes of determining the excess referred to in subparagraph (A) or (B) of paragraph (1), there shall be treated as a short-term capital gain in the taxable year an amount equal to the lesser of—
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(i) the amount allowed for the taxable year under paragraph (1) or (2) of section 1211(b), or
(ii) the adjusted taxable income for such taxable year.
(B) Adjusted taxable income For purposes of subparagraph (A), the term “adjusted taxable income” means taxable income increased by the sum of—
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(i) the amount allowed for the taxable year under paragraph (1) or (2) of section 1211(b), and
(ii) the deduction allowed for such year under section 151 or any deduction in lieu thereof.
For purposes of the preceding sentence, any excess of the deductions allowed for the taxable year over the gross income for such year shall be taken into account as negative taxable income.
(c) Carryback of losses from section 1256 contracts to offset prior gains from such contracts
Amended 1981, 1984
- 1984 Pub. L. 98-369 Pub. L. 98–369, § 102(e)(3)(A), (B), substituted “net section 1256 contracts loss” for “net commodity futures loss” and “section 1256 contracts” for “regulated futures contracts” wherever appearing.
- 1981 Pub. L. 97-34 Pub. L. 97–34 added subsec. (c).
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(1) In general If a taxpayer (other than a corporation) has a net section 1256 contracts loss for the taxable year and elects to have this subsection apply to such taxable year, the amount of such net section 1256 contracts loss—
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(A) shall be a carryback to each of the 3 taxable years preceding the loss year, and
(B) to the extent that, after the application of paragraphs (2) and (3), such loss is allowed as a carryback to any such preceding taxable year—
(i) 40 percent of the amount so allowed shall be treated as a short-term capital loss from section 1256 contracts, and
(ii) 60 percent of the amount so allowed shall be treated as a long-term capital loss from section 1256 contracts.
(2) Amount carried to each taxable year The entire amount of the net section 1256 contracts loss for any taxable year shall be carried to the earliest of the taxable years to which such loss may be carried back under paragraph (1). The portion of such loss which shall be carried to each of the 2 other taxable years to which such loss may be carried back shall be the excess (if any) of such loss over the portion of such loss which, after the application of paragraph (3), was allowed as a carryback for any prior taxable year.
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(3) Amount which may be used in any prior taxable year An amount shall be allowed as a carryback under paragraph (1) to any prior taxable year only to the extent—
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(A) such amount does not exceed the net section 1256 contract gain for such year, and
Amended 1984
- 1984 Pub. L. 98-369 Pub. L. 98–369, § 102(e)(3)(D), substituted “net section 1256 contract gain” for “net commodity futures gain” wherever appearing.
(B) the allowance of such carryback does not increase or produce a net operating loss (as defined in section 172(c)) for such year.
(4) Net section 1256 contracts loss For purposes of paragraph (1), the term “net section 1256 contracts loss” means the lesser of—
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(A) the net capital loss for the taxable year determined by taking into account only gains and losses from section 1256 contracts, or
Amended 1983
- 1983 Pub. L. 97-448 Pub. L. 97–448 struck out “and positions to which section 1256 applies” after “losses from regulated futures contracts”.
(B) the sum of the amounts which, but for paragraph (6)(A), would be treated as capital losses in the succeeding taxable year under subparagraphs (A) and (B) of subsection (b)(1).
(5) Net section 1256 contract gain For purposes of paragraph (1)—
Amended 1984
- 1984 Pub. L. 98-369 Pub. L. 98–369, § 102(e)(3)(D), substituted “net section 1256 contract gain” for “net commodity futures gain” wherever appearing.
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(A) In general The term “net section 1256 contract gain” means the lesser of—
(i) the capital gain net income for the taxable year determined by taking into account only gains and losses from section 1256 contracts, or
(ii) the capital gain net income for the taxable year.
(B) Special rule The net section 1256 contract gain for any taxable year before the loss year shall be computed without regard to the net section 1256 contracts loss for the loss year or for any taxable year thereafter.
(6) Coordination with carryforward provisions of subsection (b)(1)
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(A) Carryforward amount reduced by amount used as carryback For purposes of applying subsection (b)(1), if any portion of the net section 1256 contracts loss for any taxable year is allowed as a carryback under paragraph (1) to any preceding taxable year—
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(i) 40 percent of the amount allowed as a carryback shall be treated as a short-term capital gain for the loss year, and
(ii) 60 percent of the amount allowed as a carryback shall be treated as a long-term capital gain for the loss year.
(B) Carryover loss retains character as attributable to section 1256 contract Any amount carried forward as a short-term or long-term capital loss to any taxable year under subsection (b)(1) (after the application of subparagraph (A)) shall, to the extent attributable to losses from section 1256 contracts, be treated as loss from section 1256 contracts for such taxable year.
Amended 1984, 1986
- 1986 Pub. L. 99-514 Pub. L. 99–514, § 1899A(67), amended directory language of Pub. L. 98–369, § 102(e)(3)(C), resulting in amendment of subsec. (c)(6)(B). See 1984 Amendment note below.
- 1984 Pub. L. 98-369 Pub. L. 98–369, § 102(e)(3)(C), as amended by Pub. L. 99–514, § 1899A(67), substituted “section 1256 contract” for “regulated futures contract” wherever appearing.
(7) Other definitions and special rules For purposes of this subsection—
(A) Section 1256 contract The term “section 1256 contract” means any section 1256 contract (as defined in section 1256(b)) to which section 1256 applies.
Amended 1984, 1986
- 1986 Pub. L. 99-514 Pub. L. 99–514, § 1899A(67), amended directory language of Pub. L. 98–369, § 102(e)(3)(C), resulting in amendment of subsec. (c)(6)(B). See 1984 Amendment note below.
- 1984 Pub. L. 98-369 Pub. L. 98–369, § 102(e)(3)(C), as amended by Pub. L. 99–514, § 1899A(67), substituted “section 1256 contract” for “regulated futures contract” wherever appearing.
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(B) Exclusion for estates and trusts This subsection shall not apply to any estate or trust.