Cases: Godart v. Commissioner, 425 F.2d 633 (2d Cir. 1970); Spillers v. Commissioner, 407 F.2d 530 (5th Cir. 1969); Malinowski v. Commissioner, 71 T.C. 1120 (1979)
Final rules 1
(a) General rule In the case of an individual, a loss on section 1244 stock issued to such individual or to a partnership which would (but for this section) be treated as a loss from the sale or exchange of a capital asset shall, to the extent provided in this section, be treated as an ordinary loss.
Amended 1976
- 1976 Pub. L. 94-455 Pub. L. 94–455, § 1901(b)(3)(G), substituted “an ordinary loss” for “a loss from the sale or exchange of an asset which is not a capital asset”.
(b) Maximum amount for any taxable year For any taxable year the aggregate amount treated by the taxpayer by reason of this section as an ordinary loss shall not exceed—
Amended 1976, 1978
- 1978 Pub. L. 95-600 Pub. L. 95–600, § 345(b), substituted in par. (1) “$50,000” for “$25,000” and in par. (2) “$100,000” for “$50,000”.
- 1976 Pub. L. 94-455 Pub. L. 94–455, § 1901(b)(3)(G), substituted “an ordinary loss” for “a loss from the sale or exchange of an asset which is not a capital asset”.
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(1) $50,000, or
(2) $100,000, in the case of a husband and wife filing a joint return for such year under section 6013.
(c) Section 1244 stock defined
Amended 1978
- 1978 Pub. L. 95-600 Pub. L. 95–600, § 345(a), (c), among other changes, substituted provisions permitting a corporation to issue common stock under the provisions of this section without a written plan for provisions requiring that a written plan to issue section 1244 stock must be adopted by the issuing corporation and increased the amount of section 1244 stock that a qualified small business corporation may issue from $500,000 to $1,000,000.
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(1) In general For purposes of this section, the term “section 1244 stock” means stock in a domestic corporation if—
(A) at the time such stock is issued, such corporation was a small business corporation,
(B) such stock was issued by such corporation for money or other property (other than stock and securities), and
(C) such corporation, during the period of its 5 most recent taxable years ending before the date the loss on such stock was sustained, derived more than 50 percent of its aggregate gross receipts from sources other than royalties, rents, dividends, interests, annuities, and sales or exchanges of stocks or securities.
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Amended 1976, 1984
- 1984 Pub. L. 98-369 Pub. L. 98–369 substituted “stock in a” for “common stock in a”.
- 1976 Pub. L. 94-455 Pub. L. 94–455, § 1901(b)(1)(W), struck out reference to section 242 of this title.
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(2) Rules for application of paragraph (1)(C)
(A) Period taken into account with respect to new corporations For purposes of paragraph (1)(C), if the corporation has not been in existence for 5 taxable years ending before the date the loss on the stock was sustained, there shall be substituted for such 5-year period—
(i) the period of the corporation’s taxable years ending before such date, or
(ii) if the corporation has not been in existence for 1 taxable year ending before such date, the period such corporation has been in existence before such date.
(B) Gross receipts from sales of securities For purposes of paragraph (1)(C), gross receipts from the sales or exchanges of stock or securities shall be taken into account only to the extent of gains therefrom.
(C) Nonapplication where deductions exceed gross income Paragraph (1)(C) shall not apply with respect to any corporation if, for the period taken into account for purposes of paragraph (1)(C), the amount of the deductions allowed by this chapter (other than by sections 172, 243, and 245) exceeds the amount of gross income.
Amended 2014
- 2014 Pub. L. 113-295 Pub. L. 113–295 struck out “244,” after “243,”.
(3) Small business corporation defined
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(A) In general For purposes of this section, a corporation shall be treated as a small business corporation if the aggregate amount of money and other property received by the corporation for stock, as a contribution to capital, and as paid-in surplus, does not exceed $1,000,000. The determination under the preceding sentence shall be made as of the time of the issuance of the stock in question but shall include amounts received for such stock and for all stock theretofore issued.
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(B) Amount taken into account with respect to property For purposes of subparagraph (A), the amount taken into account with respect to any property other than money shall be the amount equal to the adjusted basis to the corporation of such property for determining gain, reduced by any liability to which the property was subject or which was assumed by the corporation. The determination under the preceding sentence shall be made as of the time the property was received by the corporation.
(d) Special rules
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(1) Limitations on amount of ordinary loss
(A) Contributions of property having basis in excess of value If—
(i) section 1244 stock was issued in exchange for property,
(ii) the basis of such stock in the hands of the taxpayer is determined by reference to the basis in his hands of such property, and
(iii) the adjusted basis (for determining loss) of such property immediately before the exchange exceeded its fair market value at such time,
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then in computing the amount of the loss on such stock for purposes of this section the basis of such stock shall be reduced by an amount equal to the excess described in clause (iii).
(B) Increases in basis In computing the amount of the loss on stock for purposes of this section, any increase in the basis of such stock (through contributions to the capital of the corporation, or otherwise) shall be treated as allocable to stock which is not section 1244 stock.
(2) Recapitalizations, changes in name, etc. To the extent provided in regulations prescribed by the Secretary, stock in a corporation, the basis of which (in the hands of a taxpayer) is determined in whole or in part by reference to the basis in his hands of stock in such corporation which meets the requirements of subsection (c)(1) (other than subparagraph (C) thereof), or which is received in a reorganization described in section 368(a)(1)(F) in exchange for stock which meets such requirements, shall be treated as meeting such requirements. For purposes of paragraphs (1)(C) and (3)(A) of subsection (c), a successor corporation in a reorganization described in section 368(a)(1)(F) shall be treated as the same corporation as its predecessor.
Amended 1976, 1978, 1984
- 1984 Pub. L. 98-369 Pub. L. 98–369 substituted “stock in a” for “common stock in a”.
- 1978 Pub. L. 95-600 Pub. L. 95–600, § 345(d), substituted “subparagraph (C)” for “subparagraph (E)” and “paragraphs (1)(C) and (3)(A)” for “paragraphs (1)(E) and (2)(A)”.
- 1976 Pub. L. 94-455 Pub. L. 94–455, § 1906(b)(13)(A), struck out “or his delegate” after “Secretary”.
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(3) Relationship to net operating loss deduction For purposes of section 172 (relating to the net operating loss deduction), any amount of loss treated by reason of this section as an ordinary loss shall be treated as attributable to a trade or business of the taxpayer.
Amended 1976
- 1976 Pub. L. 94-455 Pub. L. 94–455, § 1901(b)(3)(G), substituted “an ordinary loss” for “a loss from the sale or exchange of an asset which is not a capital asset”.
(4) Individual defined For purposes of this section, the term “individual” does not include a trust or estate.
(e) Regulations The Secretary shall prescribe such regulations as may be necessary to carry out the purposes of this section.